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  • Ski Safety Expert Fails to Employ Experienced-Based Methodology Properly

    Ski Safety Expert Fails to Employ Experienced-Based Methodology Properly

    On March 19, 2023, a ski collision at Aspen Highlands Ski Resort between Tasha Barber (Plaintiff) and Christine Mack (Defendant) led to a lawsuit. Barber claims Mack, skiing uphill, had the responsibility to avoid the collision and is seeking damages for her resulting injuries. Mack denies these claims and has engaged Jonathan Delk as an expert witness. Delk’s expert report includes a section titled “Conclusion and Opinions” where he presents factual conclusions and his professional opinions. At the end of that section, Delk offered three opinions:

    1. Barber was responsible for avoiding the collision based on her being the uphill skier.

    2. Barber was neither prepared nor aware enough to begin skiing, nor does she acknowledge that her being in motion (“coasting”) as skiing, which it is. These real facts and perspectives shared by Tasha Barber prove that Tasha was not sufficiently in control or aware of her surroundings to have avoided a collision.

    3. Barber’s choice of actions to avoid the collision (shouting, leaning back, twisting) were ultimately the cause of her skis coming into contact with Christine Mack’s. Tasha Barber’s movements were the ultimate mechanism of her injury.

    The Plaintiff contested the admissibility of these opinions, asserting that they constituted paid advocacy rather than genuine expert testimony. Due to the absence of a reliable methodology supporting them, the Court deemed the opinions inadmissible. This motion, requesting the Court to reconsider its decision, was submitted approximately two weeks thereafter.

    Ski Safety Expert Witness

    Jonathan Delk is an experienced trainer and risk manager with 15 years of ski, snowboard, and cycling coaching and training experience. From 2004 – 2019 he was employed in various roles in the ski industry including instructor,
    guide, coach, trainer, manager, and director of snowsports.

    During his tenure in the ski industry, he created and administered safety trainings for instructors and resort staff related to the Skier’s Responsibility Code and the Colorado Skier’s Safety Act. While his primary work has shifted fields, he remains active in the ski industry both as an instructor and member of PSIA-AASI, the governing body of instructor certifications in the United States for which he was also employed during his career as an examiner.

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

    Discussion by the Court

    The Federal Rules of Civil Procedure do not expressly provide for a motion for reconsideration on non-dispositive issues. But district courts have plenary power to revisit and amend interlocutory orders as justice requires. When asked to amend such an order, “courts consider whether new evidence or legal authority has emerged or whether the prior ruling was clearly in error.”

    The Court determined that the Defendant misunderstood the applicable standard, instead arguing for the application of state reconsideration rules. Consequently, because the Defendant relied on the incorrect standard, she failed to address the proper one. Furthermore, she criticized Magistrate Judge Chung’s analysis of Delk’s opinions, thereby attempting to reargue her previous points. Ultimately, however, the Tenth Circuit had clearly stated that a motion for reconsideration was not meant for relitigating previously decided issues by the losing party.

    To illustrate, the Defendant made two additional attempts to justify Delk’s first opinion.

    First Opinion

    Firstly, she tried to strengthen the opinion by claiming personal experience with the crash site supported it. However, as the Court previously noted, this justification originated solely from the arguments of her counsel and was absent from Delk’s report.

    If the Defendant wished to leverage Delk’s specific expertise regarding fall lines, she could have obtained a narrower opinion concerning how the various slopes and paths would generally impact a skier’s acceleration. She did not do so. Instead, she presented an opinion that relied on assumptions and presumptions to reach a broader conclusion on liability. This opinion exceeded the bounds of expertise by selecting facts for the jury and was therefore inadmissible.

    The previous ruling specifically noted that the problem with the opinion is that it did not “explain how [his] experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.”

    Second Opinion

    The Court also found a similar flaw in the second opinion. The Defendant argued that Delk’s knowledge of ski equipment and its effect on reaction time would be helpful to a jury. While this might be accurate, it wasn’t the content of Delk’s report. Instead, the opinion merely criticized the Plaintiff’s preparedness by noting she was “possibly buckling her boots while in motion.” Thus, the core of the opinion didn’t rely on Delk’s expertise in ski equipment. Rather, it stemmed from Delk’s interpretation of the Plaintiff’s deposition testimony as to whether her conduct constitutes “paying attention to her direction of travel.” Jurors don’t need expert assistance to understand the meaning of paying attention.

    Third Opinion

    Lastly, the Defendant tried to justify Delk’s third opinion, arguing that his expertise in ski control supported his conclusions that the Plaintiff was (1) not buckling her boots, (2) looking down, (3) following the cues of another, and (4) not paying attention to her surroundings. However, the report lacked any explanation of a reliable methodology, based on training and experience, used to reach these conclusions. Furthermore, it’s unlikely a jury needs expert help to determine if the Plaintiff was buckling her boots in motion, looking down, or not just paying attention to her surroundings– or if such inattentive actions could cause an ensuing collision. The Court found that Delk’s opinion here didn’t help the jury understand the facts but rather directed them to choose a specific narrative, offering only an obvious consequence of that narrative as expertise.

    Furthermore, the Defendant did not address Delk’s lack of qualifications to state that “Tasha Barber’s movements were the ultimate mechanism of her injury,” a “medical conclusion” for which “Delk has” no “medical training, education, or experience that would allow him to render an expert opinion on injury causation.” In essence, the Court did not disregard Delk’s experience or demand a scientific basis, but rather emphasized that “[e]xpert testimony based on experience alone must reveal how the experience led to the expert’s conclusion, why the experience is a ‘sufficient basis for the opinion,’ and how the experience was reliably applied.” Applying this standard, Delk’s report was deficient. The Defendant’s motion provides no evidence that striking Delk’s report was a clear error.

    To the extent the Defendant desires to offer information about the Skier’s Responsibility Code, the Colorado Skier’s Safety Act, or other general skiing information to the jury, the previous order did not foreclose those possibilities.

    Held

    The Court denied the Defendant Christine Mack’s motion to
    reconsider pursuant to C.R.C.P. 121 § 1-15(11) regarding Plaintiff’s 702 motion to strike Jonathan Delk’s opinions.

    Key Takeaway:

    While the Defendant correctly points out that excluding expert testimony should be the unusual case, a district court bears the responsibility of ensuring that such testimony is reliable, relevant, and helpful to the jury. Although Delk possesses knowledge regarding skiers’ responsibilities, the opinions the Defendant intends to present through him are not aimed at informing the jury about these duties. Rather, they seek to convince the jury, faced with different accounts of events, to adopt the version where the Plaintiff failed to meet those responsibilities.

    Please refer to the blog previously published about this case:

    Ski Safety Expert Witness is Not Qualified to Opine on the Ultimate Mechanism of Injury

    Case Details:

    Case Caption: Barber V. Mack
    Docket Number: 1:24cv260
    Court: United States District Court for the District of Colorado
    Order Date: March 24, 2025
  • Nursing Expert’s Testimony Would Not Assist the Jury in Determining Whether the Plaintiff has a Disability

    Nursing Expert’s Testimony Would Not Assist the Jury in Determining Whether the Plaintiff has a Disability

    Bernice McLaurin has sued her former employer, the Veterans Affairs Medical Center (VAMC) in Jackson, Mississippi, claiming racial discrimination and discrimination based on an unspecified medical disability. McLaurin, an African-American, was hired as a clinical pharmacist at the G.V. Sonny Montgomery Medical Center in Jackson (VAMC) on May 12, 2019, with a one-year probationary period. Her employment was terminated on May 8, 2020, with the stated reason being her absence without leave (AWOL) and failure to return to work after being directed.

    In substantiation of her claimed disability, the Plaintiff has furnished an expert report prepared by Ticonna Purdle, a nurse practitioner. Within this report, Purdle opines that the Plaintiff’s medical documentation indicates chronic airway symptoms post work-related exposure to Peridox. Purdle further notes the Plaintiff’s diagnosis of bronchiolitis and the pulmonologist’s findings of allergic rhinitis, postnasal drip, shortness of breath, and respiratory symptoms suggestive of asthma. Additionally, Purdle states that the Plaintiff experiences chronic cough and respiratory symptoms, and she attributes these conditions to exposure to Peridox.

    The Defendant, however, disputes Purdle’s conclusions, maintaining that she lacked the ability to substantiate the Plaintiff’s disability or the connection between Peridox exposure and her respiratory issues. As a result, the Defendant has filed a motion to exclude Purdle’s opinion, asserting its failure to satisfy Daubert‘s relevance standard.

    Nursing Expert Witness

    Ticonna Purdle, the founder of Nursing Speaks Incorporated and an advanced practice nurse, is also an American Heart Association (AHA) CPR instructor, a nurse practitioner, and a member of the American Public Health Association and Sigma Theta Tau International, the honor society of nursing. With over 20 years of experience in long-term, acute, and outpatient healthcare settings, she brings a wealth of expertise to her field.

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

    Discussion by the Court

    The Defendant presented excerpts from Ticonna Purdle’s deposition. In her testimony, Purdle acknowledged that while the Plaintiff reported symptoms suggestive of a chronic inflammatory airway condition, and her medical records “indicate a possible chronic respiratory inflammatory condition,” she was unaware of any formal respiratory diagnosis for the Plaintiff. Purdle also agreed that a January 26, 2020 CT scan initially suggested “findings supportive of respiratory bronchiolitis,” an inflammation of the small airways in the lungs, but the Plaintiff’s pulmonologist subsequently reported she did “not appreciate evidence of respiratory bronchiolitis” from the February CT scan, which was otherwise “unremarkable except for a single tiny granuloma right mid lung.”

    Furthermore, Purdle stated that despite various potential diagnoses noted in the medical records, she “[could not] infer a condition based off of the record review and the current information I have today” and could not confirm the Plaintiff’s suffering from a respiratory condition. Considering these candid admissions by Purdle, it is clear her testimony would not assist the jury in determining whether the Plaintiff has a disability. Consequently, the Court granted the motion to exclude her report and opinion. The Plaintiff’s complaint in this cause was dismissed with prejudice by the Court.

    Held

    The Court granted the Defendant’s motion exclude the testimony of Plaintiff’s expert, Ticonna Purdle.

    Key Takeaway:

    Bernice McLaurin’s lawsuit against the Veterans Affairs Medical Center (VAMC) for racial discrimination and disability discrimination was ultimately dismissed. The Court granted the VAMC’s motion to exclude the expert testimony of McLaurin’s nursing expert, Ticonna Purdle, because Purdle’s own deposition testimony revealed that the Plaintiff has not been diagnosed with any respiratory condition, and the medical records do not otherwise tend to demonstrate the existence of a disability based on Plaintiff’s alleged respiratory symptoms. 

    Case Details:

    Case Caption: McLaurin V. McDonough
    Docket Number: 3:23cv281
    Court: United States District Court, Mississippi Southern
    Order Date: February 13, 2025
  • Court Accepts the Mortgage Expert’s Opinion on the OPERS’ Primary Fraud Theory

    Court Accepts the Mortgage Expert’s Opinion on the OPERS’ Primary Fraud Theory

    Defendant Federal Home Loan Mortgage Corporation (“Freddie Mac”) offered Dr. Chudozie Okongwu, a mortgage market expert, to discuss the mortgage and subprime markets and the credit crisis between August 1, 2006, and November 20, 2007 (the “Relevant Period”). The lawsuit concerns whether “Freddie Mac concealed its overextension in the nontraditional mortgage market—generally composed of instruments known as subprime mortgages or low credit and high risk instruments—and its materially deficient underwriting, risk management and fraud detection practices through misstatements and omissions to investors.”

    According to Ohio Public Employees Retirement System  (“OPERS”), the central issue is not the definition of subprime or the performance of Freddie Mac’s loans relative to others, but rather if Freddie Mac’s public disclosures about its portfolio, underwriting, credit risk, and capital position were misleading and fraudulent. OPERS alleged Freddie Mac was undertaking more risk than it revealed. Freddie Mac retained Okongwu to conduct economic and financial analysis regarding some of OPERS’ claims. His analysis aimed to refute OPERS’ primary-fraud theory, asserting that Freddie Mac’s Caution Loans did not carry “subprime risk” because “[t]he Caution Loans have different characteristics to the CoreLogic Subprime Loans and perform differently than the CoreLogic Subprime Loans. In particular, the serious delinquency rates of the Caution Loans were substantially lower than those of the CoreLogic Subprime Loans at both Q3 2007 and Q3 2008.”

    OPERS contended that Okongwu’s report, testimony, and purported opinions are inadmissible as expert evidence due to being irrelevant, unreliable, unhelpful, confusing, unfairly prejudicial, and failing to meet the necessary threshold.

    Mortgage Expert Witness

    Dr. Chudozie Okongwu is a Ph.D. economist and consultant with extensive experience in finance, economics, and valuation. He possesses expertise in the mortgage market, the evolution of the credit crisis during the Relevant Period, residential-mortgage products, and mortgage-backed securities (including their sensitivity to housing price and interest rate changes). He also has significant experience using econometric models for analyzing residential-mortgage products.

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

    Discussion by the Court

    Okongwu’s Proposed Testimony on the First Two Topics in his Amended Expert Report about Background Facts of the Mortgage and Subprime Markets is Irrelevant and Unreliable

    OPERS contended that all of Okongwu’s planned testimony concerning the background of the mortgage and subprime markets in the initial two sections of his revised expert report was irrelevant and unreliable. However, the Court disagreed with OPERS’ central argument that Okongwu’s opinions on these first two topics were not suitable for expert testimony.

    The Court reasoned that this proposed testimony covers specialized areas related to events in the mortgage market during the financial crisis and OPERS’ claim that Freddie Mac did not disclose its involvement with subprime loans—details that are beyond the common understanding of an average juror. Furthermore, the Court found Okongwu’s testimony on these first two topics in his amended expert report to be reliable. His methodology was thoroughly explained, and he clearly stated the foundation for all his provided definitions. The Court also noted Okongwu’s expertise in residential-mortgage products and mortgage-backed securities (including their sensitivity to changes in housing prices and interest rates), along with his substantial experience in using econometric models to analyze residential-mortgage products.

    Okongwu’s Prepared-Solely-for-Litigation Proposed Testimony about what Freddie Mac Disclosed Between 2005 and 2008 is Irrelevant and Unreliable

    Okongwu’s analysis focuses on critical parts of Freddie Mac’s extensive disclosures to investors, which cautioned about credit risks leading up to the financial crisis. OPERS argued that Okongwu’s proposed testimony about Freddie Mac’s disclosures between 2005 and 2008—prepared solely for this litigation—is irrelevant, unreliable, and that he lacks the necessary qualifications to testify on this subject. However, the Court recognized that what OPERS described as a simple factual account is actually an independent analysis of substantial materials covering specialized topics. The Court noted that Okongwu has extensively published on the subjects relevant to his proposed testimony in this case. Consequently, the Court found Okongwu’s testimony on Freddie Mac’s extensive disclosures to be reliable, as he reviewed and analyzed these disclosures regarding credit risks within the context of the prevailing market conditions, drawing upon his expertise.

    Okongwu’s Proposed Testimony about Freddie Mac’s Caution Loans being Different from the CoreLogic Subprime Loans is Irrelevant and Unreliable

    Okongwu performed an empirical study employing specific analytical methods to compare millions of these two loan categories, ultimately concluding that OPERS’ “primary fraud” theory is flawed. His analysis indicated that Caution Loans and subprime loans were not the same, with Freddie Mac’s Caution Loans demonstrating significantly better performance. The Court ruled that Okongwu’s analysis comparing caution loans and subprime loans is admissible, relevant, and will aid the fact-finder in comprehending and deciding on OPERS’ primary-fraud theory.

    The Court also found Okongwu’s testimony analyzing Freddie Mac Caution Loans and comparing them to the CoreLogic Subprime Loans to be reliable. However, OPERS argues that Okongwu’s comparison was incomplete, as he did not examine “the totality of Freddie Mac’s subprime-like loans” because the Caution Loans he analyzed originated from the “Loan Prospector automated underwriting system . . ., which applied higher underwriting standards than other channels from which Freddie Mac purchased loans. . . .” The Court determined that Okongwu’s proposed testimony regarding the difference between Freddie Mac’s Caution Loans and the CoreLogic Subprime Loans is a suitable topic for examination through direct and cross-examination, but does not warrant excluding the proposed testimony.

    Held

    The Court denied OPERS’ motion to strike and exclude the testimony of Dr. Chudozie Okongwu.

    Key Takeaway:

    The Court operates with wide latitude in deciding how to test an expert’s reliability, and thus has considerable leeway in deciding how to go about determining whether particular expert testimony is reliable.

    Case Details:

    Case Caption: Ohio Public Employees Retirement System V. Federal Home Loan Mortgage Corp., Et Al.
    Docket Number: 4:08cv160
    Court Name: United States District Court for the Northern District of Ohio, Eastern Division
    Order Date: March 21, 2025
  • Engineering Expert’s Testimony on the Formation of Black Ice Admitted

    Engineering Expert’s Testimony on the Formation of Black Ice Admitted

    In a premises liability lawsuit, Plaintiff Susana Aqueche claimed she was injured after slipping on ice in the parking lot of a Hobby Lobby and is suing SVAP II Pasadena Crossroads, LLC (SVAP), Sterling Retail, Sterling Mid-Atlantic, The Sterling Organization, Paramount Crossroads, Sterling Organizational Systems, and Hobby Lobby. In response, SVAP, Sterling Retail, Sterling Mid-Atlantic, and The Sterling Organization have requested summary judgment, arguing that Aqueche was negligent by failing to see and avoid an obvious icy condition. They further contend that the report from Aqueche’s expert, Richard Balgowan, should be excluded because his certification doesn’t meet Federal Rule 56(c) requirements and his opinions are speculative and not helpful to the Court.

    Engineering Expert Witness

    Richard Balgowan possesses a wide range of professional certifications and licenses, including being a licensed professional engineer in twelve states, a licensed professional planner, and holding certifications as a public manager, public works manager, snow and ice control manager, and asphalt pavement technician. He is also a public works leadership fellow.

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

    Discussion by the Court

    Plaintiff points to Balgowan’s certification that the “report is an accurate statement of all his opinions, and the basis and reasons for them, to which he will testify under oath.” Furthermore, Plaintiff cites to Balgowan’s qualifications and further maintains that Balgowan’s report assists the trier of fact in “understanding how ‘black ice’ is formed, why it is likely that the hazard in this incident was ‘black ice,’ and is consistent with the testimony of Aqueche that it was ‘black ice’ which existed and caused her to fall.”

    Turning to the Defendants’ challenges to Balgowan’s report, the Court finds that the expert testimony outlined within it has a clear path to being admissible at trial. Specifically, Balgowan’s certification in the report and his affidavit confirm his intent to testify to its contents. Therefore, the Court can consider the report when evaluating the Defendants’ motion for summary judgment.

    With regard to the Defendants’ arguments about the report’s reliability and methodology, the Court concludes that Balgowan’s report is sufficiently reliable to be considered at this stage. This conclusion is based on the fact that Balgowan’s findings are rooted in over forty years of experience in snow and ice control, as well as a review of weather data for the relevant timeframe, and a site visit to the Hobby Lobby parking lot. Consequently, his opinions are helpful for understanding how black ice is formed, as well as the likelihood of black ice forming in the Hobby Lobby parking lot on December 26, 2020. As a result, the Court will consider Balgowan’s report in assessing the Defendants’ motion.

    Finally, viewing the evidence favorably to the Plaintiff, the Court determined that a genuine factual dispute exists regarding the visibility of the ice. Therefore, summary judgment was not appropriate and the Defendants’ motion was partially denied.

    Held

    The Court, therefore, found that Mr. Richard Balgowan’s report may be considered in evaluating Defendants’ motion for summary judgment.

    Key Takeaway:

    Despite the Defendants’ challenges, the Court found Balgowan’s report reliable enough for the summary judgment stage due to his extensive experience, review of relevant data, and site visit. The Court recognized that Balgowan’s opinions on how black ice is formed, as well as the likelihood of black ice forming in the Hobby Lobby parking lot on December 26, 2020 were helpful for understanding the case.

    Case Details:

    Case Caption: Aqueche V. Svap Pasadena Crossroads, LLC
    Docket Number: 1:24cv1395
    Court Name: United States District Court, Maryland
    Order Date: March 20, 2025
  • Rule 26 Met: Accounting Expert’s Report Provided the Correct Kind of Appendix

    Rule 26 Met: Accounting Expert’s Report Provided the Correct Kind of Appendix

    Ink 477, LLC and Grove Ink, LLC, operating the Miami restaurant and bar “Amal” and “Level 6,” are accused by former employee Jose Petersen of violating the Fair Labor Standards Act (FLSA). Petersen, who worked as waitstaff at Amal from June to September 2022 and then at Level 6 from May to September 2023, claims the companies failed to pay him proper overtime, withheld agreed-upon service charges, and illegally confiscated portions of his earned tips.

    As mandated by the Court’s scheduling order, the Defendants submitted their expert disclosures on October 18, 2024, identifying Christopher Nadeau as a forensic accounting and valuation expert. Nadeau’s report, which included an appendix listing the documents he reviewed, was provided. However, the actual documents themselves were not attached.

    A week later, on October 25, 2024, the Plaintiff filed a motion arguing that the Defendants’ disclosure was insufficient. The Plaintiff claimed that Nadeau’s report vaguely referenced the reviewed documents, making them difficult to locate within the Defendants’ existing document production. They asserted that Rule 26 of the Federal Rules of Civil Procedure does not require the opposing party to search for the data used by the expert. Consequently, the Plaintiff argued that the Defendants failed to comply with the scheduling order because Nadeau’s report did not include the “facts or data” he analyzed.

    Prior to the Defendants’ response, the Court held a discovery hearing on November 4, where the Plaintiff demanded the “31 documents” Nadeau reviewed. The Court rejected this interpretation of Rule 26, stating that it does not require experts to attach all underlying documents to their reports. The Court subsequently issued a written order confirming that listing the reviewed documents in an appendix, as Nadeau did, is standard litigation practice.

    Accounting Expert Witness

    Christopher M. Nadeau, CPA, CMA, CVA, is a forensic accounting professional and valuation analyst with experience supporting litigation across a range of commercial disputes. His work primarily focuses on economic damages analysis and business valuation for various industries including automobile dealerships, manufacturing, restaurants, and real estate.

    He specializes in calculations related to personal injury and wrongful termination cases.

    Nadeau is a licensed Certified Public Accountant in the State of Massachusetts. He also holds credentials as a Certified Management Accountant (CMA) from the Institute of Management Accountants and as a Certified Valuation Analyst (CVA) from the National Association of Certified Valuators and Analysts.

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

    Discussion by the Court

    In their response to the Plaintiff’s motion, the Defendants cited the Court’s ruling, emphasizing that Rule 26(a)(2) only requires identification of the reviewed items, not their production. The Plaintiff, in their reply, countered by stating that the Defendants did not produce the relevant discovery documents until November 1, after the initial discovery deadline, the expert disclosure deadline, and the filing of their motion.

    The Plaintiff’s central claim is that the Defendants’ expert disclosure was deficient because it lacked the underlying “facts or data” used by the expert. However, the Court maintained that Rule 26 did not mandate attaching all supporting documents to an expert report. While not required to provide all raw data, the Defendants did furnish a link to the documents listed in the expert’s appendix. Furthermore, the Plaintiff received this link well in advance of the discovery deadline and trial, ensuring sufficient notice of the expert’s opinions and supporting data. The Court ruled that Nadeau’s report provided the correct kind of appendix, and that was all he needed to do to satisfy Rule 26.

    Held

    The Court denied the Plaintiff’s motion to strike Defendants’ expert disclosures.

    Key Takeaway:

    While the language of Rule 26 could be construed to support the Plaintiff’s argument, the courts have consistently interpreted it otherwise. Rule 26 requires a statement of the data considered by the expert, but does not require the expert to include the data itself.

    Case Details:

    Case Caption: Petersen V. Ink 477, LLC Et Al
    Docket Number: 1:24cv20008
    Court Name: United States District Court, Florida Southern
    Order Date: March 19, 2025
  • Court Admitted Public Relations Expert’s Testimony Describing the Experience of a Wine Consumer

    Court Admitted Public Relations Expert’s Testimony Describing the Experience of a Wine Consumer

    This case examines the compatibility of Ohio’s three-tier liquor control system, established under the Twenty-first Amendment of the United States Constitution, with the Dormant Commerce Clause. The Sixth Circuit has directed the Court to determine, based on the presented facts and evidence, whether the statutes that Plaintiffs’ challenge “(1) ‘can be justified as a public health or safety measure or on some other legitimate nonprotectionist ground,’ and whether (2) their ‘predominant effect’ is ‘the protection of public health or safety,’ rather than ‘protectionism.’”

    In short, Plaintiffs’ constitutional challenge to Ohio’s wine importation laws is before the Court following remand from the Sixth Circuit Court of Appeals.

    Plaintiff Kenneth M. Miller is an Ohio resident and wine collector. His Co-Plaintiff, The House of Glunz, Inc., is an Illinois wine retailer with no permit or license from the Ohio Division of Liquor Control. Defendant Dave Yost serves as Ohio’s Attorney General. The Wholesale Beer & Wine Association of Ohio (“WBWAO”) has intervened as a Defendant. 

    WBWAO sought to have the Court strike the Plaintiffs’ submitted report of Tom Wark. Wark is the Executive Director of the National Association of Wine Retailers.

    Public Relations Expert Witness

    Tom Wark is a highly influential figure in the wine industry, boasting over 25 years of experience in public relations and communications. He is a leading wine blogger, consumer advocate, and industry speaker, and has played a key role in founding the American Wine Blog Awards and the Wine Bloggers Conference. His extensive experience and advocacy have earned him recognition as one of the wine industry’s most inspiring individuals.

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

    Discussion by the Court

    The WBWAO sought a ruling that the contents of Wark’s 2021 report
    are inadmissible. In his report, Wark offered “a basic description of the market conditions in which wine consumers and wine retailers interact” as of July 2021. He drew ten “conclusions” on the basis of the recited background facts.

    Wark is qualified to testify as an expert on the retail wine business

    The Wholesale Beer & Wine Association of Ohio (WBWAO) initially challenged Tom Wark’s qualifications to testify as an expert in this case. At the time of his report, Wark had accumulated over thirty years of experience as a public relations consultant within the alcohol industry. Notably, he served as the Executive Director of the National Association of Wine Retailers for thirteen years and published a daily blog focused on the wine business. While Wark’s curriculum vitae lists expertise in areas such as ‘Media Relations,’ ‘Wine Industry Marketing,’ ‘Marketing Communications,’ ‘Alcohol Industry Regulation,’ ‘Writing,’ ‘Association Management,’ ‘Wine Evaluation,’ and ‘Wine Industry Politics,’ the Plaintiffs presented him specifically as ‘an expert in the retail wine business.’ The Court determined that his experience managing an association representing wine retailers sufficiently qualifies him as an expert in that particular area

    Eleven of the fourteen proffered pieces of testimony are admissible

    Paragraphs 10 and 11

    Wark estimates the national wine market offers up to one million wines and explains how state Direct Ship Restrictions limit consumer access. The Court found this testimony on market dynamics relevant and reliable, illustrating the economic impact of such restrictions, and therefore denied WBWAO’s motion to strike.

    Paragraphs 21, 23, and 24

    Wark describes typical wine consumer behavior, highlighting situations where interstate wine purchases are desired and emphasizing the limited wine selection in standard retail settings. The Court deemed this testimony relevant to the effects of state laws on interstate commerce in wine and denied WBWAO’s motion.

    Paragraphs 29 and 30

    Wark discusses the challenges faced by brick-and-mortar wine retailers, particularly regarding the availability of rare and collectible wines. He argues that Direct Ship Restrictions prevent access to these specialty wines, sold by a limited number of retailers. The Court found this testimony reliable and relevant to the case, and thus denied WBWAO’s motion to strike these paragraphs as well.

    Paragraphs 38

    Wark reports that the Wine Institute, the leading authority on U.S. wine production, states that 44 states currently allow shipments from out-of-state wineries to consumers.

    As the first sentence is inadmissible hearsay and the report’s sole reference to the Wine Institute, the second sentence is irrelevant. The Court, therefore, granted WBWAO’s motion to strike paragraph 38.

    Paragraphs 41-44

    Paragraphs 41, 42, and 43 describe the typical process for consumers receiving direct wine shipments from out-of-state retailers in permitted states. The Court found this testimony reliable and relevant, denying WBWAO’s motion to strike. However, paragraph 44, which summarizes findings from a 2003 Federal Trade Commission report and a 2012 Maryland Comptroller study, was deemed inadmissible hearsay and lesser evidence. Those reports, which are included in the record, speak for themselves.

    As those reports are part of the record, the Court granted WBWAO’s motion to strike paragraph 44.

    Paragraph 45

    In paragraph 45, Wark states that

    “there has been no study nor any report ever produced by any law enforcement or any alcohol regulatory body that shows the direct shipment of wine from out-of-state retailers has led to a problem with minors obtaining alcohol in any state. While a limited number of academic and law enforcement studies have shown via coordinated “stings” that minors could be able to obtain alcohol via direct shipment, no study has shown that minors actually use the Internet to obtain alcohol.

    The 2015 National Survey on Drug Use and Health carried out by the Substance Abuse and Mental Health Services Administration looked at how minors obtain alcohol. No minor responding to the national survey cited the Internet as their source of alcohol. In fact, no state has produced any report or evidence that direct shipment of wine from out-of-state wineries or retailers in any way negatively impacts the health and safety of its residents.”

    The third and fourth sentences of paragraph 45 are inadmissible hearsay, as previously established. The remaining sentences, which claim ‘no’ study or report demonstrates adverse effects from direct wine shipments, are also problematic. Wark admitted in his deposition that he only reviewed the limited studies cited in his report, which is insufficient to support such sweeping assertions. Therefore, the Court, exercising its gatekeeping role, excludes these sentences due to a lack of sufficient factual basis.

    Paragraph 54

    In paragraph 54, Wark states that:
    “All wine sold at wine retail stores is in sealed containers and has been
    approved for sale to the public by the Alcohol and Tobacco Tax and Trade Bureau (TTB) and the state alcohol regulatory agency in which the retailer is located. There are no reports of any contaminated or harmful wine sold and shipped from these retailers to consumers.”

    Wark and his proponents have failed to demonstrate that these statements are based on sufficient facts or data for admissibility.

    The Court granted WBWAO’s motion as to paragraph 54.

    In view of the above rulings, the Court saw no reason to strike Wark’s
    deposition testimony from the record.

    Held

    The Court granted in part and denied in part the the WBWAO’s motion to strike Tom Wark’s testimony.

    Key Takeaway:

    The Court meticulously reviewed Wark’s report, admitting testimony that provided relevant and reliable descriptions of market dynamics, consumer behavior, and the experience of a wine retailer. However, the Court exercised its “gatekeeping” function, excluding portions of Wark’s report that relied on inadmissible hearsay or lacked sufficient factual support for broad claims. Ultimately, the Court’s rulings underscored the importance of ensuring expert testimony is grounded in sufficient facts and data, demonstrating a careful balance between allowing relevant expert opinions and protecting against unreliable evidence.

    Case Details:

    Case Caption: Derek Block Et Al V. Canepa Et Al
    Docket Number: 2:20cv3686
    Court: United States District Court, Ohio Southern
    Order Date: March 20, 2025
  • Accounting Expert Allowed to Testify Despite Lacking Forensic Accounting Expertise

    Accounting Expert Allowed to Testify Despite Lacking Forensic Accounting Expertise

    This case involves a dispute over the alleged misuse of funds from two New Mexico payday lending businesses, Cashco, Inc. and Budget Payday Loans, L.P. The Light Defendants (John Ernest Light, Tina S. Light, and Investors Services, Inc.) were hired to manage the financial operations of these businesses, including record-keeping and transaction processing.

    They were given access to the operating accounts in exchange for a monthly fee. The owners of the businesses (Randall C. Roche, Ronald Tsuchiyama, Michael Harada, and William Montelongo), through their entity HiTex, LLC, claim that the Light Defendants abused this access, diverting approximately $360,000 for their own use, rather than distributing it to the rightful owners. HiTex, LLC, has filed a lawsuit asserting claims of breach of contract, breach of fiduciary duty, conversion, fraud, unjust enrichment, and negligence, seeking $320,000 in damages.

    Plaintiff sought to exclude the opinions and testimony of the Light Defendants’ retained expert, Ted Blodgett. The Light Defendants, in turn, sought to exclude the opinions and testimony of Plaintiff’s retained expert, David Bloom.

    Accounting Expert Witnesses

    Ted Blodgett, managing partner of Gray, Blodgett & Company, PLLC, possesses 30 years of public accounting expertise. He specializes in tax planning, business valuations for estate and gift tax, and litigation support. A seasoned expert witness, he regularly testifies in Oklahoma courts on complex accounting and tax matters, including marital dissolution.

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

    David Bloom has over 40 years of public accounting experience as a private business executive, business consultant, and forensic accountant, has served as Chief Financial Officer, interim Chief Financial Officer, and consultant to private businesses of various sizes on matters of taxation, accounting policy, and audit. He is an active Certified Public Accountant in the State of Oklahoma, license number 15384 and a graduate from Southern Nazarene University.

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

    Discussion by the Court

    The Blodgett Motion

    Blodgett is Qualified to Offer his Opinions

    Blodgett’s expertise is unchallenged by the Plaintiff, and the Court confirmed that Blodgett’s accounting and valuation background qualified him to provide expert opinions.

    Blodgett’s Opinions are Sufficiently Reliable

    Plaintiff argued that Blodgett’s analysis is flawed, claiming he failed to adequately consider the case’s documents and evidence. Specifically, they criticized his hypothetical, stating that “Plaintiff cannot have suffered damages if a distribution was recorded as a distribution payable and then later distributed,” rendering his opinions “inconsistent with the evidence produced.”

    The Light Defendants countered that the Plaintiff’s interpretation of Blodgett’s hypothetical “are contrary to Blodgett’s own explanation of his hypothetical.” They further asserted that Blodgett’s limited scope of work justified reviewing only a “narrow set of documents,” and therefore, any omissions affect “the weight of Blodgett’s testimony, not its admissibility.”

    The Court concurred with the Light Defendants. It found that the Plaintiff’s concerns primarily address the weight of Blodgett’s testimony, not its admissibility. The fact that Blodgett did not review all evidence deemed relevant by the Plaintiff does not automatically disqualify his testimony. The Plaintiff retained the right to challenge Blodgett’s analysis during cross-examination.

    Given the limited scope of Blodgett’s testimony, the Court concluded that his conclusions are reasonably based and will aid the fact-finder. The Plaintiff’s objections pertain to the “weight of Blodgett’s testimony” and are more appropriately explored during cross-examination at trial.

    The Bloom Motion

    Bloom is qualified to offer his opinions

    The Light Defendants contended that although Bloom may possess general accounting qualifications, he lacks the specific expertise in “forensic accounting, financial forensics, and/or fraud investigation” necessary to testify in this case. Consequently, they argue that his opinions should be excluded. Conversely, the Plaintiff asserts that Bloom’s “rigorous education” as a Certified Public Accountant qualifies him. Furthermore, addressing the Light Defendants’ claim of insufficient specialized knowledge, the Plaintiff cites the Association of International Certified Professional Accountants, stating that “all CPAs, including Bloom, possess the specialized knowledge and investigative skills required to perform forensic accounting services.”

    Ultimately, after reviewing Bloom’s report and deposition testimony, the Court, even though acknowledging it’s a close decision, finds Bloom qualified to offer opinions on the topics presented. Indeed, while Bloom may not have the specific forensic accounting credentials the Light Defendants deem crucial, this perceived deficiency relates to the weight a jury should assign to his testimony, rather than its admissibility. Therefore, the Court determines that Bloom is qualified by knowledge, skill, experience, training, or education to provide the opinions outlined in his report.

    Bloom’s Opinions are Sufficiently Relevant

    The Light Defendants further argued that, in their view, Bloom’s opinions lacked relevance, asserting they did not “fit with the issues of this case.” In particular, they claimed Bloom addressed matters beyond the “four (4) transactions giving rise to the distributions allegedly owed to the Owners and the damages the Owners sustained in not receiving those distributions.”

    On the other hand, the Plaintiff maintained that Bloom’s challenged opinions are relevant to demonstrate “that Defendants no longer have access to the funds intended to be used for distributions and, therefore, such distributions cannot be paid to Plaintiff.” Furthermore, the Plaintiff asserted that Bloom’s opinions bolster their theory that the Defendants commingled funds, effectively rendering them untraceable.

    Ultimately, after careful consideration, and for reasons largely consistent with those discussed later, the Court deemed Bloom’s opinions sufficiently relevant. To be sure, the Light Defendants retained the right to scrutinize the perceived weaknesses in Bloom’s analysis during cross-examination, particularly regarding the four transactions outlined in the Complaint, or any other perceived deficiencies. Nevertheless, the Court is convinced that Bloom’s testimony is “sufficiently tied to the facts of the case [such] that it will aid the jury.”

    Bloom’s opinions are sufficiently reliable

    The Light Defendants then argued that Bloom’s opinions lacked reliability, claiming they did not “rely upon any explained methodology.” Specifically, they criticized Bloom for failing to “connect the dots between the materials he reviewed and his own education or experience to then detail the supporting bases for his opinions.”

    Conversely, the Plaintiff asserted that “any trained CPA with Bloom’s experience and education would be able to conduct the same analysis Bloom had done with the same documents.” Moreover, the Plaintiff contended that, because Bloom had based his opinions on both his experience and the case’s documents, rather than solely one or the other, his opinions were sufficiently reliable.

    Ultimately, after careful consideration, the Court determined that Bloom’s opinions were sufficiently reliable, and that the Light Defendants’ arguments pertained to the weight of those opinions, not their admissibility. In essence, the Court disagreed with the assertion that Bloom’s report “was unreliable because [he] either did not employ or failed to disclose any particular methodology.”

    Held

    • The Court denied the Plaintiff’s Daubert motion to strike the testimony of Defendants’ expert witness Ted Blodgett.
    • The Court denied the Defendants John Ernest Light, Tina S. Light, and Investors Services, Inc.’s motion to exclude the testimony of the Plaintiff’s expert witness David Bloom.

    Key Takeaway:

    Despite challenges regarding the scope of reviewed materials, specialized expertise, relevance, and methodology, the Court found both experts, Blodgett and Bloom, qualified to offer their opinions. The Court emphasized that critiques concerning the experts’ analysis, including perceived omissions or methodological shortcomings, primarily affect the weight of their testimony, not its admissibility. Consequently, the Court deemed cross-examination the appropriate venue for addressing these concerns, ensuring the jury could properly evaluate the experts’ credibility and the strength of their conclusions.

    Case Details:

    Case Caption: Hitex, LLC V. Vorel Et Al
    Docket Number: 5:21cv1125
    Court: United States District Court, Oklahoma Western
    Order Date: March 20, 2025
  • Accident Reconstruction Expert Disregards Physical Evidence

    Accident Reconstruction Expert Disregards Physical Evidence

    William Harrison Sims sustained facial injuries from shrapnel when his BMW’s airbag malfunctioned. He subsequently filed a lawsuit against BMW, claiming negligence and strict product liability.

    In the legal proceedings, BMW’s accident reconstruction expert, Amanda Duran, P.E., was accused by the Plaintiff of selectively endorsing a defense-favorable theory of the accident without sufficient justification.

    Defendants filed a motion requesting reconsideration of its February 13, 2025 order granting in part and denying in part Plaintiff’s motion to exclude the testimony of Duran.

    Accident Reconstruction Expert Witness

    Amanda Duran, P.E. is an automotive engineer specializing in motor vehicle crash investigation and reconstruction. Since 2003, she has worked at Carr Engineering, Inc.  To date, she has been involved in analyzing over 600 crashes, including more than 500 vehicle inspections and 400 scene inspections.

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

    Discussion by the Court

    Amanda Duran, P.E., was presented as the defense’s accident reconstruction expert. The Court partially granted the Plaintiff’s Daubert challenge, excluding Duran’s opinion on who failed to yield the right of way. The Court found this opinion unhelpful, as Duran couldn’t identify the responsible party, and the basic fact that someone failed to yield the right of way was deemed common knowledge.

    The defense’s motion for reconsideration, which simply reiterated prior arguments, was denied. The Court emphasized that reconsideration is not a platform for disputing rulings. Furthermore, the Court rejected the defense’s argument that because their challenge to the Plaintiff’s expert was denied, Duran should be allowed to offer unhelpful opinions.

    The Court also struck Duran’s opinion regarding the BMW’s lane of travel, again rejecting the defense’s rehashed arguments. The Court found Duran’s methodology flawed, as she disregarded physical evidence and relied excessively on Harris-Jackson’s testimony. The defense’s disagreement with this ruling was deemed insufficient for reconsideration.

    Finally, the defense argued that it was unfair for the Plaintiff’s expert, Perry Ponder, to testify when his conclusions differed from the crash report prepared by the Trooper. It should be noted that the Court refused to admit Duran’s testimony about the Plaintiff’s lane of travel because she prioritized Harris-Jackson’s account over concrete physical evidence. The Court rejected this argument, highlighting the difference in methodology: Ponder considered the Trooper’s crash report but reached a different, reasoned conclusion, while Duran disregarded physical evidence. The Court concluded that the experts’ approaches were not comparable and denied the motion for reconsideration.

    Held

    The Court denied the Defendants’ motion for reconsideration of the Court’s order to exclude the testimony of Amanda Duran, P.E.

    Key Takeaway:

    The Court emphasized the importance of sound methodology and reliance on evidence in expert testimony. After all, a motion for reconsideration is not a platform to reargue previous arguments.

    Please refer to the blogs previously published about this case:

    Accident Reconstruction Expert Witness’ Testimony Admitted Despite His Failure to Calculate G-Force 

    Neurology Expert Witness’ Injury Causation Testimony Admitted

    Accident Reconstruction Expert Witness’ Opinion Regarding Plaintiff’s Lane of Travel Ignored Physical Evidence

    Automotive Engineering Expert Witness’ Testimony Regarding the Latent Defect in Airbag Inflators Admitted

    Neuropsychology Expert Witness is Qualified to Offer Opinions on Causation

    Expert Witness Reliability: Sims v. BMW Case Examines “Parroting” Claims

    Case Details:

    Case Caption: Sims V. BMW Of North America LLC
    Docket Number: 6:22cv1685
    Court: United States District Court, Florida Middle
    Order Date: March 18, 2025

  • Physical Medicine & Rehabilitation Expert’s Opinion as to the Permanency of Injuries Excluded

    Physical Medicine & Rehabilitation Expert’s Opinion as to the Permanency of Injuries Excluded

    Plaintiff Manuel G. Milan commenced this action against New Jersey Transit Rail Operations, Inc. seeking damages for injuries sustained to his ankle and low back under the Federal Employers’ Liability Act.

    Defendant challenged the expert medical opinions of Dr. Aaron Bellew, DPM and Dr. Jason Smith, M.D. Bellew and Smith offered testimony as to the Plaintiff’s disability, permanency of injuries and limitations.

    Podiatry Expert Witness

    Aaron Bellew holds a Bachelor’s degree from St. Francis College and a medical degree from the New York College of Podiatric Medicine. He completed a four-year residency in Foot & Ankle Trauma/Reconstructive Surgery at New York Hospital, Queens, and has advanced training in various surgical techniques from New York-Presbyterian/Columbia University Medical Center. He is a member of the American College of Foot & Ankle Surgeons and the American Podiatric Medical Association.

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

    Physical Medicine & Rehabilitation Expert Witness

    Dr. Jason Smith is board-certified in physical medicine and rehabilitation. He earned his medical degree from UMDNJ-New Jersey Medical School, completed a physiatry residency at JFK-Johnson Rehabilitation Institute (serving as chief resident), and a fellowship in interventional spine and sports medicine at Coordinated Health in Bethlehem, PA. He practices at Atlantic Medical Group, emphasizing patient-centered care.

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

    Discussion by the Court

    The Defendant moved to dismiss the Plaintiff’s case, arguing their experts’ opinions were inadmissible. The Plaintiff countered that expert testimony wasn’t even needed, but if it was, one expert (Bellew) was qualified. The Court, noting the Plaintiff’s burden to prove admissibility, found the parties’ arguments regarding Bellew insufficient for a ruling. Therefore, the Defendant’s motion was denied without prejudice on that point, allowing them to re-argue Bellew’s admissibility and address the qualification, reliability and fit prongs later. However, the Plaintiff conceded the inadmissibility of the other expert’s (Smith) causation opinion, so the Court granted the Defendant’s motion regarding Smith.

    Because the Defendant failed to adequately brief the Daubert issues, the Court is not in a position to evaluate the Plaintiff’s ability to prove medical causation.

    Held

    The Court granted in part Defendant’s motion with respect to excluding Dr. Jason Smith’s opinion. 

    Key Takeaway:

    While the Court excluded one expert’s opinion (Smith) due to the Plaintiff’s concession, it deferred ruling on the admissibility of another expert’s opinion (Bellew) due to the Defendant’s inadequate legal arguments, specifically regarding the Daubert standards. Furthermore, the Court was unable to rule on medical causation due to the Defendant’s improper briefing of the Daubert issues. This emphasizes the importance of proper legal briefing, especially regarding expert testimony, and the Court’s adherence to Daubert standards for admissibility.

    Case Details:

    Case Caption: Milan V. New Jersey Transit Rail Operations, Inc.
    Docket Number: 2:18cv13735
    Court: United States District Court for the District of New Jersey
    Order Date: March 18, 2025
  • Fire Investigation Expert’s Testimony is Crucial to Establishing the Defendants’ Alleged Negligence

    Fire Investigation Expert’s Testimony is Crucial to Establishing the Defendants’ Alleged Negligence

    Cindy Jostworth’s insurance carrier, American Strategic Insurance Corp. (ASIC), has filed a negligence claim against Craig and Elizabeth Meyer. ASIC, acting under its right of subrogation, asserted that the Meyers’ negligent burning of yard waste and debris resulted in a fire that spread and destroyed Jostworth’s residential property at 5558 Silverpoint Drive, Cincinnati, Ohio. Plaintiff’s forensic engineer and fire investigator Kevin Cronan, P.E. concluded that the Meyers’ actions caused the fire.

    Arguing that Ohio law requires a private investigator license, the Defendants claimed that Cronan’s testimony is inadmissible because neither he nor U.S. Forensic possesses such a license.

    Fire Investigation Expert Witness

    Kevin Cronan holds a bachelor’s degree in mechanical engineering and is a licensed professional engineer in 27 states, including Ohio. He also possesses numerous fire certifications, has extensive experience in fire investigations, and volunteers with the fire department.

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

    Discussion by the Court

    In light of Cronan’s demonstrated expertise and qualifications, the Court deemed him capable of providing expert testimony on the matter.

    National Fire Protection Association 921: Guide for Fire and Explosion Investigations (“NFPA 921”) recommends that fire investigators follow a six-step method: “(1) identify the problem, (2) define the problem, (3) collect data, (4) analyze the data, (5) develop a hypothesis using inductive reasoning, and (6) test the hypothesis using deductive reasoning.”

    The Court ruled that Cronan’s fire investigation, conducted in accordance with the NFPA 921, provided a reliable basis for his expert opinions. Moreover, the Defendants’ attempt to block Cronan’s testimony on the fire’s origin and cause is misplaced. This testimony is crucial to establishing the Defendants’ alleged negligence and, therefore, is clearly relevant.

    Held

    The Court denied the Defendants’ motion to exclude the testimony of Kevin Cronan.

    Key Takeaway:

    Court upheld the admissibility and reliability of expert fire investigation testimony, even in the face of challenges regarding licensing, by confirming that the expert’s qualifications and adherence to established industry standards (NFPA 921) were sufficient.

    Case Details:

    Case Caption: American Strategic Insurance Corp. V. Meyer Et Al
    Docket Number: 1:23cv119
    Court Name: United States District Court, Ohio Southern
    Order Date: March 18, 2025