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  • Real Estate Expert’s Use of the Sales Comparison Approach is Permissible

    Real Estate Expert’s Use of the Sales Comparison Approach is Permissible

    Residents near a biomass power plant in Madison County, Georgia, owned and operated by the defendants, allege that the plant’s noise, vibrations, light, smoke, and soot are negatively impacting their property values. They have filed nuisance and negligence claims. The Defendants are challenging the admissibility of the Plaintiffs’ expert witness, real estate appraiser Kenneth Cantrell, under Federal Rule of Civil Procedure 702. While not disputing Cantrell’s qualifications, the Defendants argued that his appraisal, which assesses the decrease in property values due to plant noise, lacks sufficient factual basis and employs an unreliable methodology.

    Real Estate Expert Witness

    Kenneth Cantrell, a Georgia-based certified real estate appraiser, boasts a career spanning more than thirty years.

    Cantrell possesses a robust educational background in real estate and finance, demonstrated by his successful completion of coursework covering essential areas such as real estate valuation, finance, law, brokerage, and investment analysis. Furthermore, he has consistently pursued advanced professional development, either completing or successfully challenging numerous courses offered by esteemed organizations like the Appraisal Institute (AI) and the Commercial Investment Real Estate Council (CI), underscoring his commitment to maintaining a high level of expertise.

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

    Discussion by the Court

    Real estate appraiser Kenneth Cantrell used the sales comparison approach to assess the impact of the biomass plant on the Plaintiffs’ property values, claiming his work adheres to the Appraisal Institute’s Uniform Standards of Professional Appraisal Practice and the Appraisal Institute’s Code of Professional Ethics and Standards of Professional Appraisal Practice. 

    The Defendants challenged his methodology on three main points:

    1) They argued he failed to properly verify sales data for comparable properties. The Plaintiffs countered that Cantrell’s associate verified the data, which is permissible.

    2) The Defendants criticized the distance between comparable and appraised properties. The Plaintiffs responded that the rural setting justified the use of such comparables, under applicable appraisal standards.

    3) The Defendants claimed Cantrell relied on a biased report about the Madison plant’s impact. However, the Court found Cantrell’s use of that study as a factor, to determine the size of the impacted area, was permissible.

    The Court concluded that the Defendants’ criticisms pertain to the weight of Cantrell’s testimony, not its admissibility. Finding that Cantrell’s testimony is based on sufficient facts and reliable methodology, and would assist the jury, the Court denied the Defendants’ motion to exclude his testimony.

    Held

    The Court denied the Defendants’ motion to exclude Kenneth Cantrell’s testimony.

    Key Takeaways:

    • The Court recognized that in rural settings, broader geographic comparisons for real estate appraisals may be necessary and permissible, according to professional appraisal standards.
    • Criticisms regarding the methodology, data verification, and comparable properties were deemed to affect the weight of the appraisal evidence, not its admissibility.

    Case Details:

    Case Caption: Fowler Et Al V. Georgia Renewable Power LLC Et Al
    Docket Number: 3:23cv62
    Court: United States District Court for the Middle District of Georgia, Athens Division
    Order Date: March 15, 2025
  • Algorithmic Trading Expert’s Opinion is Irrelevant to Establishing Pretext under Title VII

    Algorithmic Trading Expert’s Opinion is Irrelevant to Establishing Pretext under Title VII

    Zongzong (Nicole) Tao has filed a lawsuit against her former employer, Simplex Investments, LLC, alleging discrimination based on gender and race/national origin, in violation of Title VII and the Illinois Human Rights Act. Simplex is a proprietary trading firm that employs algorithmic high frequency trading strategies to make profits from trading futures and equity options. In 2015, Chinese-American trader Nicole Tao joined Simplex Investments, where she was responsible for monitoring trading strategies, including the Spread Auction Trader (SAT).

    Tao claims she experienced a hostile work environment characterized by aggressive behavior from the Head of Trading, Matt Zimmerman, and a pervasive “fraternity-like” atmosphere. Her responsibilities included monitoring trading strategies, notably the Spread Auction Trader (SAT). Simplex asserts that Tao’s termination resulted from her failure to adequately monitor the SAT’s performance.

    Plaintiff retained Zachary Ziliak to review and analyze the processes and procedures for the development and improvement of automated trading strategies, and “Simplex’s claimed basis for terminating [Tao’s] employment.” Ziliak, currently a lawyer, previously worked as a trader and financial engineer.

    Simplex Investments sought to exclude Ziliak’s expert testimony, claiming: he is unqualified to opine about how to properly operate and manage a high-frequency trading firm in the years 2020-2021; his retrospective analysis of the company’s decision to terminate Tao’s employment was irrelevant; his methodology is unreliable; and he has improperly presented his own narrative of the facts of the case under the guise of expert opinion.

    Algorithmic Trading Expert Witness

    Zachary Ziliak, a Rhodes Scholar with six college and graduate degrees enjoyed a successful career in math, finance, and trading before becoming an attorney. He completed graduate work in mathematics at the University of Oxford and obtained a finance and strategy focused MBA from the University of Chicago.

    Ziliak worked as a “quant” at UBS, a leading global investment bank, pricing exotic derivatives and forecasting volatility. He then took over as head trader at Matlock Capital, designing and implementing an automated option-trading system.

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

    Discussion by the Court

    Ziliak reviewed Simplex’s internal documents regarding its trading strategies, including the Spread Auction Trader, and deposition testimony.

    Based on his background and review of the documents, Ziliak ultimately concluded that:

    “The Spread Auction Trader strategy coding error was not Tao’s fault; that the SAT strategy’s operational behavior in the period from August 2020 to January 2021 would have given Tao no cause to discover or diagnose the error given shortcomings in Simplex’s code and control practices; that the SAT strategy error was inadvertently detected by a developer when implementing unrelated functionality requested by Tao; and that Simplex’s claimed estimate of the dollar impact of the SAT error is imprecise and misleading.”

    Ziliak’s Opinion is Not Relevant to Plaintiff’s Discrimination Claims

    Plaintiff must establish a prima facie case of discrimination by showing that (1) she belongs to a protected class; (2) she met her employer’s legitimate expectations; (3) she suffered an adverse employment action; and (4) another similarly situated employee outside of her protected class received better treatment from the employer.

    In Robertson v. Dep’t of Health Servs., 949 F.3d 371, 378 (7th Cir. 2020), the Seventh Circuit explained that “in determining whether the employer’s reason can be characterized as pretextual, we do not evaluate whether the employer’s proffered justification was accurate or even whether it was unfair. Our sole focus is on whether the employer’s stated reason can be characterized as a falsehood rather than an honestly held belief.”

    Plaintiff sought to use Ziliak’s expert testimony to establish that Simplex’s explanation for Tao’s termination—her alleged SAT strategy coding error (among other performance issues)—was a pretext for discrimination. Ziliak’s opinion aimed to demonstrate that the coding error was not attributable to Tao. The Court, however, determined that the central inquiry in a discrimination case is whether Simplex sincerely believed it had a legitimate, non-discriminatory basis for the termination. Ziliak’s opinion, which focused solely on disputing Simplex’s assessment of Tao’s fault, was deemed irrelevant to proving pretext under Title VII and, therefore, was excluded.

    Held

    The Court granted the Defendant’s motion to exclude the opinion of Zachary Ziliak.

    Key Takeaway:

    In determining whether an employer’s stated reason for an adverse employment action is pretextual (a cover-up for discrimination), courts do not assess the accuracy, fairness, or even the reasonableness of the employer’s justification. Instead, the sole focus is on whether the employer’s stated reason is a lie or a falsehood, rather than an honestly held belief, regardless of the correctness or desirability of reasons offered for employment decisions. After all, the Court’s role is not to judge the wisdom of management decisions, but to ascertain whether the employer’s description of its reasons is honest.

    Case Details:

    Case Caption: Nicole Tao v. Simplex Investments LLC
    Docket Number: 1:22cv1463
    Court: United States District Court, Illinois Northern
    Order Date: March 17, 2025
  • Human Factors Expert Lacks Expertise in the Context of Officer-Involved Shooting

    Human Factors Expert Lacks Expertise in the Context of Officer-Involved Shooting

    Essentially, this case involves a civil rights and state tort claim stemming from the fatal shooting of Mickel Lewis, Sr., by Kern County Sheriff Deputy Jason Ayala on October 2, 2020. Therefore, the central legal question is whether Deputy Ayala’s use of deadly force was justified.

    Consequently, the Plaintiffs have filed a motion to exclude the testimony of the defense’s human factors expert, Michael J. Kuzel, arguing he lacks the necessary expertise to analyze police shooting scenarios. Specifically, they contended that Kuzel’s qualifications regarding police practices and training are insufficient, citing his lack of relevant certifications, recent publications, and studies specific to law enforcement shootings.

    Human Factors Expert Witness

    Michael Kuzel has a bachelor’s degree in Bioengineering from Arizona State University, a master’s degree in Industrial Engineering (with an emphasis in Human Factors Industrial Engineering) from Arizona State University, and a second master’s degree in Applied Psychology (with an emphasis in Human Factors Sensation of Perception) from Arizona State University.

    Kuzel indicates that he has investigated and evaluated cases as a reconstruction, injury biomechanics, and human factors expert, and that he has completed a forty-hour Force Science Analyst course offered by Force Science.

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

    Discussion by the Court

    Kuzel’s “Human Factors” Report

    Kuzel analyzed the shooting incident based on provided discovery materials, including witness depositions and the Plaintiffs’ complaint. He claims his conclusions are scientifically sound. Kuzel’s report details his observations, asserting that Mickel Lewis, Sr.’s actions led Deputy Ayala to believe he posed a threat, potentially armed. Kuzel also opines on the sequence of shots, suggesting the first two struck Lewis, Sr. in the chest. His final conclusions support the defense, stating that Ayala’s perception of danger was reasonable, that Lewis, Sr.’s movements indicated he was retrieving a weapon, that Ayala had less than a second to react, and that his use of force was justified.

    Plaintiff’s Objections

    The Plaintiffs in this civil rights and state tort action have lodged a strong challenge against the qualifications of Michael J. Kuzel, the defense’s proffered “human factors” expert. Their central argument rests on the assertion that Kuzel lacks the requisite expertise to provide credible testimony concerning perception/reaction time, risk analysis, and other human factors specifically within the context of a police shooting.

    They highlight the absence of licenses or certifications related to police practices or training, a crucial deficiency when evaluating the actions of law enforcement officers. Furthermore, they emphasize Kuzel’s lack of recent publications or studies directly addressing officer-involved shootings, questioning his practical understanding of the unique stressors and decision-making processes involved. The Plaintiffs contend that Kuzel’s qualifications regarding law enforcement responses are “exceedingly thin,” effectively disqualifying him from offering expert opinions on this specialized subject.

    The Plaintiffs challenge the scientific reliability of Kuzel’s opinions. His assertions regarding Deputy Ayala’s stress response, perception of threat, and decision-making process lack a clearly defined and supported methodology. While Kuzel provides a summary of relevant literature, he fails to adequately connect his opinions to specific methodologies or bridge the gap between the literature and his conclusions.

    Defendant’s Counterarguments

    The Defendants assert Kuzel’s expertise in “human factors,” defined as the study of human abilities, limitations, behaviors, and processes. However, a significant discrepancy arises between this general expertise and the specific opinions presented in Kuzel’s report. He ventures into areas well beyond the scope of general human factors, opining on the trajectory of bullets, the likely impact points on the deceased’s body, and the interpretation of body movements in relation to gunshot wounds. The Court ruled that the Defendants failed to provide any justification for Kuzel’s qualifications in these specialized areas, particularly in forensic analysis and wound ballistics. Opinions regarding the correlation between bullet wound locations and body movements, such as a counterclockwise turn, clearly require specialized expertise that Kuzel demonstrably lacks.

    The Defendants’ stance has shifted throughout the proceedings. Initially, Kuzel’s report presented a wide range of conclusions and opinions. However, in their opposition to the Plaintiffs’ motion and during the hearing, the Defendants conceded that Kuzel is not a police practices expert and that many of his conclusions fell outside his area of expertise. They now assert that his testimony will be limited to human perception and reaction time under stress. However, even within this narrowed scope, the Plaintiffs maintain that the Defendants have failed to establish Kuzel’s relevant qualifications and experience.

    The “Certifications and Trainings” section of Kuzel’s curriculum vitae reveals no training or certification related to the use of force, and his publications primarily focus on automobile, bicycle, and pedestrian collisions, or trip hazards, none of which involve officer-involved shootings. Furthermore, the Defendants have not demonstrated that Kuzel has previously testified as a human factors expert in police shooting cases.

    Analysis

    Without a transparent and scientifically sound methodology, the Court is unable to assess the reliability of Kuzel’s opinions regarding the “human factors” that may have influenced Deputy Ayala’s actions.

    Held

    The Court  granted the Plaintiffs’ motion in limine to exclude Defendants’ expert Michael J. Kuzel.

    Key Takeaways:

    • Expert Witness Qualifications are Critical: Specifically, this case underscores the importance of rigorously scrutinizing the qualifications of expert witnesses, particularly in cases involving complex issues like police use of force. However, general expertise in a field does not automatically qualify an expert to opine on highly specialized subtopics.
    • Methodology Must Be Transparent and Reliable: Ultimately, expert opinions must be grounded in sound and transparent methodologies. In contrast, a mere summary of literature without a clear connection to the expert’s conclusions is insufficient.

    Case Details:

    Case Caption: Mickel E. Lewis Jr. Et Al V. Kern County Et Al
    Docket Number: 1:21cv378
    Court: United States District Court, California Eastern
    Order Date: March 13, 2025
  • Pricing Expert Witnesses Are Qualified to Opine on the Grading Card Industry

    Pricing Expert Witnesses Are Qualified to Opine on the Grading Card Industry

    This case arises out of an alleged misrepresentation about whether a 2009 Steph Curry trading card (the “Curry Card”) was physically altered at the time Beckett examined and graded the card. Alt claims that Beckett negligently misrepresented the status of the card by assigning it a grade that did not reflect the alteration. 

    Alt retained Matthew Levine and Kaushik Mohan to testify “regarding the sports trading card industry, including with respect to the grading and the market value of sports trading cards and the Steph Curry Card at issue in this case.” Defendant filed a motion to strike and exclude Alt’s expert witnesses.

    Pricing Expert Witnesses

    Matthew Levine has been involved in the sports trading card industry since 2010, has priced over 25,000 unique assets, and works as a senior pricing analyst in the industry. 

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

    Kaushik Mohan runs the pricing team at Alt, has been a collector in the sports trading card industry for fifteen years, and has personally graded hundreds of cards. 

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

    Discussion by the Court

    Levine and Mohan seek to assist the jury in understanding (1) what sports trading card grading is and what services a grading company provides, (2) what “trimming” means and why it impairs the price of collectibles, and (3) their opinions, based on their experience and the materials in the case, that the Curry Card was in the same condition when graded by Beckett in 2016 and when the alteration was discovered in 2022.

    Beckett argues that the experts are not qualified to offer expert opinions on the grading industry or the value of the Curry Card, that they improperly offer legal conclusions, that their opinions are not relevant, and that their opinions are not reliable. The Court addresses each argument in turn.

    A. Levine and Mohan are Qualified

    The Court determined that the experts, Levine and Mohan, were qualified to provide testimony on the trading card industry and the value of the Steph Curry card in question. Both experts possessed significant practical experience, which the Court deemed sufficient in the absence of formal certification requirements for card grading.

    Levine, a senior pricing analyst, regularly interacts with grading companies and understands industry expectations. Mohan, who manages pricing and has extensive personal grading experience, also demonstrated relevant knowledge. While Beckett challenged their qualifications to opine on card value, citing their reliance on an automated pricing tool, the Court acknowledged Levine’s involvement in developing the tool and his manual appraisal experience, as well as Mohan’s oversight of pricing accuracy. Ultimately, the Court concluded that their combined industry and pricing experience qualified them to offer expert opinions on grading practices and the card’s value.

    B. Levine and Mohan May Opine on Industry Practices But May Not Make Improper Legal Conclusions

    Beckett attempted to block the experts, Levine and Mohan, from testifying, arguing they were offering legal opinions instead of factual insights. The Court clarified that while experts can explain industry standards and practices, they cannot explicitly state legal conclusions like whether someone was “negligent” or “reasonably relied” on something.

    Beckett specifically objected to three points: the experts’ opinions on Beckett’s alleged negligence, Alt’s reliance on Beckett’s grading, and whether card authenticity is an objective fact. However, the Court found that the experts’ testimony went beyond simply repeating legal terms. They explained the reasoning behind their opinions, discussed industry expectations for grading, and detailed how card alterations can be objectively measured. Although the experts used some legal terms, the Court determined that their testimony contained valuable, admissible information about industry practices. Therefore, the Court allowed their testimony, but instructed them to avoid directly stating legal conclusions.

    C. Defendant’s Objections to the Relevance and Reliability of the Testimony Go to the Weight of Evidence

    Beckett tried to argue that the experts’ opinions weren’t reliable. First, they said the experts just used documents provided by Plaintiffs’ counsel, not their own analysis. But the Court checked, and the experts had clearly listed all the materials they used, so that argument failed.

    Then, Beckett claimed Levine was just giving personal opinions, not expert testimony. But the Court agreed with Alt, who said those opinions were based on Levine’s years of experience in the trading card industry. Just because Beckett thought they lacked “evidence” didn’t mean they weren’t valid expert opinions.

    Finally, Beckett said the experts’ testimony didn’t match other evidence. The Court’s response was basically, “That’s what cross-examination is for.” If Beckett had conflicting evidence, they could bring it up when questioning the experts.

    In short, the Court decided that Beckett’s complaints were about how convincing the experts’ testimony was, not whether it should be allowed at all. These issues were for the jury to weigh, not reasons to exclude the experts entirely.

    Held

    The Court ruled that the proffered expert opinions of Levine and Mohan satisfy the requirements of Rule 702. Accordingly, the Court denied the motions to exclude their testimony.

    Key Takeaway:

    Courts are reluctant to strike an entire expert testimony solely due to the presence of impermissible legal conclusions within the expert’s report, especially if the report also contains potentially admissible opinions. Even if an expert crosses the line by offering legal opinions they shouldn’t, the Court won’t necessarily throw out their entire testimony if there’s other useful, admissible information present.

    Case Details:

    Case Caption: Alt Platform Inc V. Beckett Collectibles LLC
    Docket Number: 3:22cv2867
    Court: United States District Court, Texas Northern
    Order Date: March 11, 2025
  • Transportation Engineering Expert May Testify Only About the Standard of Care Required of a Train Operator

    Transportation Engineering Expert May Testify Only About the Standard of Care Required of a Train Operator

    On January 4, 2023, 74-year-old Bonnie Thurston, accompanied by her grandchildren, Hailey and Roger Thurston, was riding a WMATA Metrorail train to Reagan National Airport. The train halted before reaching the station platform. Without any announcement of arrival or door opening, Thurston, observing the platform, stood up without holding onto any train supports. The train then moved forward to fully berth at the station, causing Thurston to fall and suffer injuries to her left femur and hip.

    The central liability questions are: (1) whether the train operator was obligated to announce the train’s intended movement for re-berthing, thus warning passengers to secure themselves, and (2) whether such an announcement was, in fact, made.

    Thurston subsequently filed a negligence lawsuit against WMATA on May 17, 2024. Following the conclusion of discovery, WMATA moved to exclude Thurston’s liability expert, Dr. Carl Berkowitz. WMATA contends that Berkowitz’s testimony should be barred due to his alleged failure to establish a national standard of care and the perceived lack of factual basis for his opinions.

    Transportation Engineering Expert Witness

    Carl Berkowitz, PE, Ph.D., AICP, a transportation and traffic engineering expert, has been providing litigation consultation since 1997. His 49 years of experience make him a highly sought-after advisor, particularly at the outset of potential litigation. He offers impartial evaluations that can significantly influence the course of a case. By assessing the technical strengths and weaknesses, he helps clients determine the feasibility of legal action. Berkowitz’s extensive background and experience enable him to provide valuable contributions at every stage of litigation.

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

    Discussion by the Court

    WMATA sought to exclude expert testimony from Berkowitz, arguing he failed to establish a national standard of care. Thurston countered, asserting that Virginia’s established standard for common carriers, not a national standard, was applicable. She further argued that, even if a national standard were relevant, Berkowitz’s testimony satisfied it.

    The Court emphasized that Virginia law does not recognize a national standard of care in common carrier tort cases. Instead, Virginia mandates that common carriers exercise “the highest degree of practical care” for passenger safety. Therefore, the Court deemed Berkowitz’s ability to articulate a national standard irrelevant. His expertise was sufficient to explain to the jury what constitutes “the highest degree of practical care” under Virginia law.

    Furthermore, the Court reiterated the established Virginia principle that a party cannot unilaterally define its own standard of care through internal rules. Consequently, Berkowitz was prohibited from referencing WMATA’s Standard Operating Procedures (SOPs) during his direct examination.

    In Murphy v. United States, 383 Fed. Appx. 326, 335 (2010), it was held that procedure manuals cannot be introduced to show standard of care.

    Analysis

    The Court determined that Berkowitz’s opinions are primarily grounded in his extensive experience within the transit industry. This experience includes his employment with various transit authorities, his participation in transit-related committees, and his sustained involvement in the public transportation community. He also gathers information through discussions with industry professionals and his review of transit system standard operating procedures and training manuals.

    Based on this expertise, Berkowitz is qualified to testify regarding the appropriate standard of care for a train operator who must re-berth a train that has partially stopped within a station platform. However, the Court found that Berkowitz lacks sufficient foundation to testify about other areas covered in his expert report, such as falling mechanics, jerk rates, system failures, and national standards of care. Therefore, he is precluded from offering opinions on these topics.

    Furthermore, Berkowitz is prohibited from presenting factual conclusions about the specific incident in question. This restriction is to avoid encroaching on the jury’s role as the fact-finder.

    Held

    The Court granted in part and denied in part the Defendant WMATA’s motion to exclude Plaintiff’s liability expert. Dr. Carl Berkowitz may testify only about the standard of care required of a train operator who needs to reposition or “re-berth” a train that has come to a stop partially within a station platform.

    Key Takeaway:

    The Court ruled that Virginia law dictates the “highest degree of practical care” rather than a national standard, and that the expert’s experience qualified him to testify on this standard specifically regarding re-berthing procedures. However, the expert was restricted from referencing WMATA’s internal procedures or testifying on other matters outside his specific expertise, ensuring he stayed within his qualified area and did not encroach on the jury’s role. Ultimately, the Court allowed the expert to testify narrowly on the standard of care for re-berthing, while excluding his testimony on other topics.

    Case Details:

    Case Caption: Thurston V. Washington Metropolitan Area Transit Authority
    Docket Number: 1:24cv832
    Court: United States District Court, Virginia Eastern
    Order Date: March 14, 2025
  • Accounting Expert’s Reliance upon a Disputed Fact does not Equate to Insufficient Facts

    Accounting Expert’s Reliance upon a Disputed Fact does not Equate to Insufficient Facts

    In a recent legal battle between Mo Pow and Crypto, the spotlight has fallen sharply on expert testimony, specifically the lost profits analysis provided by Mo Pow 4’s expert, David A. Hall. This case, fundamentally about two failed digital currency mining agreements, has turned into a fascinating examination of expert witness reliability and the challenges to their methodologies.

    Firstly, to set the stage, the Court initially found breaches of contract by both parties and requested further expert opinions to quantify damages. Mo Pow 4 subsequently engaged Hall, who presented a report claiming $5,374,000 in lost profits. However, Crypto immediately raised concerns, focusing on Hall’s decision to use Odessa, Texas, as the hosting site for his calculations, rather than Strafford, Missouri, as stipulated in the second agreement.

    Consequently, Crypto filed a motion to strike Hall’s opinions, arguing that this substitution was a deliberate attempt to inflate damages, and further claimed that Hall’s methodology was unreliable, based on undisclosed documents, and failed to account for crucial contractual terms. Conversely, Mo Pow 4 contended that Crypto was merely challenging Hall’s assumptions, not his methodology, and asserted their right to relocate the mining site.

    Accounting Expert Witness

    David Hall is a Managing Director with Alvarez & Marsal Disputes and Investigations in Denver. He has more than 30 years of experience providing expert consulting and testimony services to clients on accounting, economic, financial and damages issues.

    Hall earned a bachelor’s degree from the University of Michigan and an MBA (highest honors) from the University of Texas at Austin. A Certified Management Accountant (CMA), Certified Valuation Analyst (CVA) and a Certified Fraud Examiner (CFE), he is also a member of the Institute of Management Accountants, the National Association of Certified Valuators and Analysts, the National Contract Management Association and the Association of Certified Fraud Examiners.

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

    Discussion by the Court

    Defendant’s Objections

    Crypto’s primary objection centered on Hall’s use of Odessa, Texas, as the location for calculating lost profits, instead of Strafford, Missouri, as specified in the second agreement. They argued that this substitution was a deliberate attempt to inflate the lost profits figure, implying that the Texas site was chosen precisely because it would yield a higher damage calculation. In essence, they accused Hall of manipulating his analysis to favor Mo Pow 4. Crypto broadly claimed that Hall’s entire calculation was based on an unreliable methodology.

    This objection encompassed concerns about the assumptions Hall made, the variables he included or excluded, and the overall approach he took to calculating lost profits. Further, Crypto asserted that Hall relied on documents and information related to the Texas site that were not timely disclosed during the discovery process, arguing that this constituted a violation of discovery rules and prejudiced their ability to effectively challenge Hall’s opinions. Finally, Crypto argued that Hall’s opinions failed to consider various terms of the Second Agreement, additional costs, and rate variances that would significantly impact his calculations, pointing to specific omissions, such as the use of inappropriate electrical rates, failure to account for “uptime” variations, and neglecting adverse market conditions.

    Plaintiff’s Counterarguments

    In opposition, Mo Pow 4 countered that Crypto’s objections were fundamentally challenges to the assumptions and variables that Hall chose to consider, rather than to the underlying methodology itself. They argued that Hall’s use of the AICPA-approved incremental profit method was sound, and that Crypto’s concerns were simply disagreements about the inputs used in that method. Mo Pow 4 asserted that they had the authority to unilaterally relocate the cryptocurrency mining site to Texas after Crypto failed to perform under the Second Agreement, providing an explanation as to why the relocation would have occured, and that even though the notice was not sent, it was still a valid assumption.

    Mo Pow 4 explained that the documents in question did not become relevant until Hall performed his expert work, which occurred after the initial discovery period. They also pointed to the fact that the Court had reopened expert discovery, and that they provided the documents as soon as possible, arguing that their supplemental disclosure was substantially justified, given the circumstances and the Court’s prior orders. Finally, Mo Pow 4 argued that many of Crypto’s concerns, such as the use of specific electrical rates and the omission of certain variables, were matters of weight that could be addressed through cross-examination, rather than grounds for excluding Hall’s testimony altogether, emphasizing that the Court’s role as a gatekeeper was not to determine the accuracy of Hall’s opinions, but rather to ensure that his methodology was reliable.

    Analysis

    The Court found Hall’s expert report to meet the reliability standards of Rule 702, despite the challenges raised by Crypto. Thus, while the use of the Texas site and other assumptions were subject to scrutiny, they did not render the report fundamentally unreliable. Therefore, the Court emphasized that vigorous cross-examination and the presentation of contrary evidence were the appropriate remedies for any perceived weaknesses in the expert testimony.

    Since the motion was referred to a magistrate judge, a final determination was not made as to whether Mo Pow’s supplemental disclosures were substantially justified or harmless out of an abundance of caution, and only a recommendation was provided to the assigned district court judge. The magistrate judge recommended that the Court find Mo Pow’s failure to provide certain documents Hall relied upon in his report until after his report issued, was substantially justified. 

    Held

    The Court found that Mo Pow’s expert, Mr. David A. Hall, and the opinions presented in his expert report, met the requirements of Federal Rule of Civil Procedure 26(a)(2)(B) and Federal Rule of Evidence 702. Moreover, the magistrate judge recommended that the presiding judge determine that Mo Pow’s failure to provide certain documents relied upon by Hall to support his lost profits damage opinion until after the close of discovery had been substantially justified.

    Key Takeaway:

    The Court, acting as a gatekeeper under federal rules, found Hall’s qualifications and methodology met reliability standards, distinguishing between disputed assumptions affecting evidence weight and fundamental flaws impacting admissibility. Ultimately, the Court emphasized that vigorous cross-examination, rather than exclusion, was the appropriate remedy for perceived weaknesses in the expert’s analysis.

    Case Details:

    Case Caption: Mo Pow 3 Llc Et Al V. Crypto Infiniti LLC
    Docket Number: 1:22cv155
    Court: United States District Court, Wyoming
    Order Date: March 11, 2025
  • Economics Expert’s Statistical Model Survives Daubert Challenge in NCAA Volunteer Coach Case

    Economics Expert’s Statistical Model Survives Daubert Challenge in NCAA Volunteer Coach Case

    The NCAA is an association whose members are colleges and universities competing in intercollegiate athletics. The NCAA governs student athletic competition at its member schools.

    NCAA schools are divided into three divisions: Division I, Division II, and Division III. Division I schools, which are at issue in this litigation, generally “manage the largest athletic budgets and offer the highest number of athletics scholarships.” Coach compensation is the largest athletics expense for NCAA Division I schools.

    NCAA bylaws limit the number of coaches that Division I schools can hire in a given sport. Prior to 2023, Division I programs other than basketball and men’s bowl-division football were permitted to hire a certain number of “unrestricted coaches,” who had no restrictions on compensation, plus one or two “volunteer coaches.” The bylaw at issue here, NCAA Bylaw 11.01.06 (hereinafter “Volunteer Coach Bylaw” or “the Bylaw”), defined a “volunteer coach” as “any coach who does not receive compensation or remuneration” from the school’s athletics department.

    Following the repeal of the Volunteer Coach Bylaw, effective July 2023, the volunteer coach designation was eliminated and the number of unrestricted coaches was increased, typically by the number of volunteer coaches allowed under the prior rule. For instance, programs previously permitted one volunteer coach were allotted one additional paid coach.

    Plaintiffs brought this putative class action alleging that the Volunteer Coach Bylaw violated § 1 of the Sherman Act. The proposed class consists of “[a]ll persons who, from March 17, 2019, to June 30, 2023, worked for an NCAA Division I sports program other than baseball in the position of ‘volunteer coach,’ as designated by NCAA Bylaws.” 

    Dr. Orley Ashenfelter created a statistical model to estimate the damages suffered by the members of the proposed class. Defendants, however, sought to exclude all evidence from this expert.

    Economics Expert Witness

    Orley C. Ashenfelter is an economist specializing in labor economics, antitrust policy, and the economic analysis of labor markets. He is the Joseph Douglas Green 1895 Professor of Economics, Emeritus, at Princeton University, where he also serves as a Senior Scholar in Economics.

    Ashenfelter holds a Ph.D. in Economics from Princeton University and a B.A. from Claremont McKenna College. His professional experience includes directing Princeton’s Industrial Relations Section and serving as President of multiple economic associations, including the American Economic Association, the Society of Labor Economists, and the American Law and Economics Association. He has also held editorial positions at the American Economic Review and Journal of Wine Economics.

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

    Discussion by the Court

    Orley Ashenfelter

    To formulate his model, Ashenfelter relied upon wage data and other documentation from hundreds of NCAA Division I schools, focusing on those that expanded their coaching staff beyond the prior limits on the number of unrestricted coaches following the repeal of the Volunteer Coach Bylaw.

    He focuses on this subset of schools because they “provide the best currently-available evidence of what a competitive market will look like” in the absence of the repealed Bylaw. The model uses actual coach salary data following the Bylaw repeal as a “benchmark” to estimate the “but-for” compensation class members would have received. “But-for” analysis refers to the practice in antitrust cases of calculating classwide damages based on what class members’ economic position would have been absent the alleged antitrust violations (i.e., in the world that would have existed but for the alleged violation).

    Ashenfelter’s analysis proceeds in two steps. In the first step, Ashenfelter categorizes sports programs according to how many unrestricted coaches each program was permitted to have under NCAA rules beginning July 1, 2023 (i.e., following the repeal of the Bylaw).

    In the second step, Ashenfelter produces an estimate of the compensation class members would have received in the “but-for” world. 

    Defendant’s Objections

    In the instant case, discovery is ongoing and Ashenfelter is still receiving new data and updating his analysis, which indicates that a full Daubert analysis is “premature” at this stage of the proceedings.

    Ashenfelter’s Model Fails to Control for the Experience and Skill Level of Coaches

    Defendant argues that Ashenfelter’s report is nonetheless inadmissible because it fails to account for several key factors. First, Defendant contends that Ashenfelter’s model fails to control for the experience and skill level of coaches because (1) his calculations did not incorporate experience level as a variable, and (2) he did not address potential selection bias in the sample of additional paid coaches hired after the bylaw repeal, who could have higher experience levels and therefore warrant higher wages. The Court clarified that these arguments are factually unfounded, as Ashenfelter’s analysis does account for experience using both pay ranking within the coaching hierarchy and age as proxies for experience.

    Second, Defendant argues that Ashenfelter “excluded evidence from schools that did not add paid coaching positions after the bylaws were amended.” Again, this argument is unfounded.

    Ashenfelter’s Analysis is Based Around Groupings of Dissimilar Sports

    Finally, Defendant argues that Ashenfelter’s analysis is based around groupings of dissimilar sports and “tries to estimate market rates of pay for coaches in one sport by using salaries for coaching in other sports that are determined by different supply and demand conditions.” The Court ruled that this argument mischaracterizes Ashenfelter’s analysis. While the calculation of the step-down differential at step one uses groupings of sports based on how many coaches the NCAA permits a school to hire, the damage calculation at step two uses actual salary data from each sports program at each school and therefore accounts for differences across sports.

    To the extent that Defendant thinks Ashenfelter’s analysis inadequately accounts for the variables discussed above, that is not a basis for exclusion under Daubert, but rather goes to the weight of the evidence.

    It is undisputed that Ashenfelter possesses extensive experience and qualifications in the field of labor economics and that he based his analysis on the review of reliable documentation produced by NCAA Division I member schools. Regression analysis based on a “benchmark” or “yardstick,” like that employed by Ashenfelter, is a well-established method of calculating class-wide antitrust impact. 

    Held

    The Court denied Defendant’s motion to exclude the testimony of Orley Ashenfelter.

    Key Takeaway:

    The ruling reinforces the use of established economic methodologies, like benchmark regression analysis, in antitrust cases, and addresses the standard for admissibility of expert testimony under the Daubert standard.

    Case Details:

    Case Caption: Shannon Ray v. NCAA
    Docket Number: 1:23cv425
    Court: United States District Court, California Eastern
    Order Date: March 10, 2025
  • Family Medicine Expert Witness’ Testimony Violates the Basic Requirement of Rule 26

    Family Medicine Expert Witness’ Testimony Violates the Basic Requirement of Rule 26

    On July 22, 2022, Dr. Gregory Fox, individually and as parent of C.F., and Rita Fox, individually and as parent of C.F. (jointly, the Plaintiffs), filed a lawsuit challenging the state of Maine’s public school vaccination requirements.

    Dr. Stephen B. Paulding, a board-certified family physician with over four decades of experience in primary care was presented as an expert witness by Dr. Gregory Fox. Department of Education Commissioner Pender Makin moved to exclude Paulding’s testimony comparing the risk of disease transmission by vaccinated and unvaccinated individuals pursuant to Federal Rule of Civil Procedure 26 and Federal Rule of Evidence 702, asserting Paulding did not prepare his report, his testimony would not aid the trier of fact, and his opinions are not based on reliable methodology or support. 

    Initially, the Court reviewed the submitted materials and, ultimately, concluded that the expert’s opinions did not align with established federal rules, necessitating their exclusion. Notably, the Court determined that Paulding’s expert report was not prepared by him, as required by Federal Rule of Civil Procedure 26(a)(2)(B). Instead, it was found that the report was drafted by Attorney Stephen Whiting, with Paulding merely signing it, a highly unusual circumstance that led to the exclusion of the expert’s testimony.

    Family Medicine Expert Witness

    Dr. Stephen Paulding earned his medical degree from Boston University Medical School in 1971, following a Bachelor of Science degree from Houghton College. His postgraduate training included an internship and residency from 1971 to 1973, after which he served in the United States Air Force Medical Corps from 1973 to 1974.

    From 1974 until his retirement in 2016, Dr. Paulding maintained a private family medicine practice, providing comprehensive medical care across all age groups in Cumberland and Portland, Maine. His practice included routine office visits, house calls, and nursing home care, reflecting a commitment to patient accessibility and continuity of care.

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

    Discussion by the Court

    To begin with, the Court investigated Commissioner Makin’s claim that Whiting authored the report. Furthermore, a thorough review of the deposition revealed that Paulding himself admitted, under direct questioning, that Whiting had drafted the report, and he simply agreed with it. Moreover, neither the attorney nor Fox were able to elicit contradictory testimony during subsequent questioning. In addition, the deposition revealed that Whiting also provided all the medical articles appended to the report, and that Paulding had not thoroughly reviewed them. Therefore, the Court concluded that Whiting wrote the report and supplied the supporting articles, a finding compelled by Paulding’s own deposition testimony.

    Legal Implications of an Attorney-Authored Expert Report

    Consequently, the Court addressed the legal implications of an attorney-authored expert report. Indeed, federal district courts in other circuits have uniformly disapproved of expert testimony revealed to be the exclusive product of counsel. Thus, the Court agreed with Commissioner Makin’s assertion that the report’s preparation violated Rule 26, which explicitly requires a report “prepared and signed by the witness.” Specifically, since Paulding did not prepare the report, it did not comply with this rule. Furthermore, the Court emphasized the clear distinction between an attorney editing an expert report for form or clarity and an attorney writing the report for the expert, concluding that Whiting had crossed this line. 

    Additionally, the Court rejected Fox’s argument that the challenge was untimely, as the discovery period concluded on July 19, 2024, and Paulding’s deposition at which Whiting’s authorship became clear was not held until July 8, 2024, leaving Defendants very little time to raise this issue within the discovery period.

    Also, the Court affirmed that challenging the report at the Daubert stage was appropriate, as it pertained to the reliability of the testimony. Finally, based on Paulding’s uncontroverted testimony and the clear violation of Rule 26, the Court granted Commissioner Makin’s motion to exclude the expert’s testimony.

    Held

    The Court granted Defendant Pender Makin’s motion to exclude the testimony of Dr. Stephen Paulding.

    Key Takeaway:

    • Expert reports must be the product of the expert’s own work and analysis, not that of their attorney. Having an attorney draft the report fundamentally undermines the expert’s role and the integrity of their testimony.
    • A mere “signing off” on a report written by someone else is insufficient. The expert must actively participate in the report’s creation, demonstrating their understanding and endorsement of its contents.

    Please refer to the blog previously published about this case:

    Pediatrics Expert’s Opinion Regarding a Target 95% Vaccination Rate Met the Daubert Bar

    Case Details:

    Case Caption: Fox Et Al V. Makin Et Al
    Docket Number: 2:22cv251
    Court: United States District Court, Maine
    Order Date: March 10, 2025
  • Neuropsychology Expert’s Opinions Discrediting the Body of False Confession Research Excluded

    Neuropsychology Expert’s Opinions Discrediting the Body of False Confession Research Excluded

    Essentially, Fulton and Mitchell alleged that they were wrongfully convicted of murder due to fabricated witness testimony and coerced false confessions by Chicago police officers. Consequently, they filed lawsuits claiming constitutional violations. As their trial date approached, the defense sought to introduce Dr. Diana Goldstein because of her extensive background, experience, and specialized knowledge as a clinical and forensic neuropsychologist.

    Neuropsychology Expert Witness

    Diana S. Goldstein, PH.D., ABPP is a licensed and board-certified clinical neuropsychologist who has been practicing for more than 20 years. She earned a master’s degree and a Ph.D. from The Chicago Medical School in clinical psychology and completed a post-doctoral fellowship in clinical neuropsychology at the University of Chicago Medical Center. She has lectured at various medical schools on the subjects of psychiatry and behavioral neuroscience.

    Currently, Goldstein is the president, CEO, and director of neuropsychology at Michigan Avenue Neuropsychologists in Chicago, Illinois, where she provides neuropsychological and psychological outpatient evaluations and treatments. She additionally serves as the Director of Neuropsychology for the Isaac Ray Forensic Group, LLC. In this role, she conducts forensic evaluations and consults in criminal and civil cases including cases that involve custodial confessions.

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

    Discussion by the Court

    The core of the dispute revolved around Goldstein’s qualifications and the reliability of her methodology. Firstly, the Court emphasized that expert qualification is not a general assessment, but rather a specific inquiry into whether the expert’s skills and knowledge align with the precise questions at hand. In this instance, while Goldstein possessed extensive credentials as a clinical neuropsychologist, the Court found her lack of direct research experience and publications regarding false confessions to be a significant deficit.

    Furthermore, the Court questioned the reliability of Goldstein’s methodology. Her report heavily critiqued the body of false confession research, often dismissing peer-reviewed studies as methodologically flawed. However, she provided little explanation for these critiques. Specifically, the Court noted instances where she appeared to offer personal opinions rather than data-driven analyses. For instance, she would say a 15% false confession rate was “relatively small” without solid comparison. Also, the Court noted that her methodology was basically a literature review, without any original research of her own.

    Moreover, the Plaintiffs argued, and the Court agreed, that Goldstein’s opinions ventured into legal territory, effectively usurping the Court’s role. Specifically, her broad critiques of the false confession research field were seen as attempts to undermine the very foundation upon which such expert testimony rests.

    Held

    The Court granted Plaintiff’s motion to exclude the testimony of Dr. Diana Goldstein.

    Key Takeaway:

    This ruling underscores the Court’s commitment to upholding rigorous standards for expert testimony, particularly in cases involving complex social science evidence like false confessions. It serves as a reminder that experts must possess the specific qualifications and employ reliable methodologies to ensure their testimony assists the trier of fact.

    Case Details:

    Case Caption: Fulton V. Bartik Et Al
    Docket Number: 1:20cv3118
    Court: United States District Court for the Northern District of Illinois, Eastern Division
    Order Date: February 07, 2025
  • Psychiatry Expert’s Testimony Not Fully Excluded Despite His Reliance on a Previous Edition of the DSM

    Psychiatry Expert’s Testimony Not Fully Excluded Despite His Reliance on a Previous Edition of the DSM

    In a recent Michigan case involving allegations of sexual abuse against visually impaired minors in public schools, the admissibility of expert psychiatric testimony became a focal point. Specifically, the Court grappled with challenges to Dr. Gerald Shiener‘s expertise and methodology.

    Plaintiffs presented Shiener, a psychiatrist, to testify on the “causation and damages” related to the children’s psychiatric issues stemming from the alleged abuse. However, Defendants argued that Shiener lacked sufficient expertise in child psychiatry, given the plaintiffs’ ages at the time of the incidents and evaluations. Consequently, they sought to exclude his testimony.

    Psychiatry Expert Witness

    Dr. Gerald A. Shiener is a board-certified psychiatrist with over four decades of clinical experience, specializing in forensic psychiatry, addiction psychiatry, geriatric psychiatry, and psychosomatic medicine.

    Shiener earned his Doctor of Medicine degree from Michigan State University College of Human Medicine. He completed his residency in psychiatry at Sinai Hospital of Detroit. His training included inpatient psychiatry, emergency psychiatry, adolescent psychiatry, and consultation-liaison psychiatry. He also completed an honorary clinical assistantship at London Hospital Medical College under Professor Desmond Pond.

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

    Discussion by the Court

    Qualifications:

    Firstly, Plaintiffs countered that Shiener’s extensive experience, including his role as Chief of Psychiatry at a trauma center where he treated sexually abused children, his residency training in child psychiatry, and his appointment to a juvenile mental health advisory committee, qualified him to opine on the matter. Conversely, Defendants dismissed this experience, arguing that his residency training was decades old and his overall practice lacked a focus on forensic child psychiatry. In essence, the Defendants primarily argued that Shiener lacked the specific expertise required to testify on the psychiatric impact on child victims of sexual abuse. They contended that his experience in child psychiatry was limited, particularly in forensic settings, and that his relevant training was outdated. Thus, they challenged his credentials, asserting that he was not a sufficiently qualified “child psychiatrist.”

    Nevertheless, the Court ruled that it was not necessary for Shiener to have spent the majority of his time focused on child psychiatry in order to offer relevant opinions. Indeed, Shiener has received formal training in the psychiatric treatment of minors, and in addition, he has experience treating this population, including with respect to sexual abuse. Therefore, the initial objection based on a lack of child psychiatry expertise was largely dismissed.

    Methodology:

    Furthermore, Defendants raised concerns about Shiener’s methodology. They alleged he: failed to adequately review medical and school records, over-relied on maternal reports, used outdated assessment approaches, specifically the multi-axial assessment approach that was eliminated from the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, failed to rule out alternative causes, provided speculative opinions lacking data, and failed to cite reliable scientific literature.

    Conversely, the Plaintiffs defended Shiener’s methodology, arguing that he had utilized a variety of sources, including depositions, police reports, and his own evaluations. They also argued that reliance on the DSM-IV was acceptable, as it closely approximated the DSM-V in relevant areas, and that his clinical experience allowed him to make his professional judgements. Additionally, they provided an affidavit from Shiener, that backed up his methods, and reasoning.

    Reliability:

    More importantly, the Court addressed the reliability of Shiener’s methods. Specifically, Defendants criticized his reliance on the DSM-IV, which has been superseded by the DSM-V. However, the Court found that while the DSM-V is the current version, the DSM-IV was sufficient for diagnosis of PTSD in this case, because there is significant overlap between the two versions. Thus, the diagnosis of PTSD was admissible. Furthermore, the Plaintiffs argued that Shiener’s experience, allowed him to form his opinions, and that the DSM-IV was sufficient for the diagnosis of PTSD.

    Multi-Axial Assessment:

    However, the Court prohibited Shiener from using the DSM-IV’s multi-axial assessment approach, which was phased out in the DSM-V. Because the Plaintiffs failed to demonstrate the reliability of this outdated system, the Court deemed it inadmissible.

    Causation and Prognosis:

    Defendants also objected to Shiener’s opinion that Plaintiffs’ psychiatric diagnoses arose from sexual abuse, arguing that his opinions on this issue did not address any “other external circumstances,” in addition to being conclusory and unsupported.

    The Court excluded Shiener’s opinions on causation, prognosis, and treatment. Namely, his statements regarding the cause of the Plaintiffs’ conditions were deemed conclusory and lacked adequate explanation. Similarly, his opinions on prognosis and treatment lacked sufficient support from scientific literature. Consequently, these aspects of his testimony were deemed inadmissible.

    While acknowledging some oversights, the Court noted that Shiener did utilize various sources, including depositions, police reports, educational records, and his own evaluations. Additionally, the Court recognized that experts conducting their own evaluations aren’t always required to review all medical records.

    Held

    In conclusion, the Court granted in part and denied in part the Defendants’ motion to strike Dr. Gerald Shiener’s testimony. His diagnoses, particularly of PTSD, were deemed admissible, while his multi-axial assessments, causation opinions, prognosis, and treatment recommendations were excluded.

    Key Takeaways:

    • Even with broad psychiatric qualifications, specific expertise relevant to the case (e.g., child psychiatry in cases involving child victims) can be challenged.
    • Outdated methodologies (like the DSM-IV’s multi-axial assessment, a feature of the DSM-IV that was phased out in the DSM-V) can be grounds for excluding expert testimony.

    Case Details:

    Case Caption: Petty Et Al V. Garden City Public Schools Et Al
    Docket Number: 5:21cv11328
    Court: United States District Court, Michigan Eastern
    Order Date: March 10, 2025