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

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

    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. Laura Blaisdell, a pediatrician with extensive qualifications in medicine and public health, was presented as an expert witness by Department of Education Commissioner Pender Makin. Fox’s challenge centered on Blaisdell’s opinion regarding a 95% vaccination rate target. He argued that her reliance on the R0 variable, which assumes a “totally susceptible” population, was unreliable and unsupported by scientific methodology when applied to the case’s specific facts. He claimed her assumption was erroneous because the population in question was only “partially susceptible”.

    Furthermore, Fox contested the scientific support for the 95% vaccination coverage goal, asserting that Blaisdell erred in inferring its necessity to protect susceptible individuals or halt disease transmission.

    Pediatrics Expert Witness

    Laura L. Blaisdell, MD, MPH, FAAP, CPE is a board-certified pediatrician, public health consultant, and researcher with expertise in vaccine hesitancy, infectious disease control, and camp medicine. She holds a Doctor of Medicine (MD) from the University of Minnesota Medical School and a Master of Public Health (MPH) from the University of Minnesota School of Public Health. She is also a Certified Physician Executive (CPE) and a Fellow of the American Academy of Pediatrics (FAAP).

    Blaisdell has served as an Attending Physician in the Department of Pediatrics at Maine Medical Center since 2008 and is an Assistant Professor at Tufts University School of Medicine. Her research and clinical work focus on vaccine decision-making, public health policy, and disease prevention in communal settings, particularly youth camps. She has been a key figure in vaccine advocacy and has contributed to legislative efforts to promote immunization policies.

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

    Discussion by the Court

    Commissioner Makin countered that Fox conflated herd immunity threshold rates with public health vaccination targets for schools. They argued that Blaisdell’s use of R0 was a generally accepted practice for determining herd immunity thresholds.

    Regarding the 95% target, the Commissioner emphasized that it was a public health goal, not a herd immunity threshold, aligning with targets set by the United States Centers for Disease Control and Prevention (U.S. CDC) and the Maine Center for Disease Control and Prevention (Maine CDC). Blaisdell, in her deposition, clarified the distinction, stating that the 95% figure represents a public health recommendation for school vaccination levels.

    Analysis

    The Court acknowledged that Blaisdell’s use of R0 to calculate herd immunity thresholds was supported by scientific literature, including articles cited by both parties. While the use of this methodology in other scientific literature is not conclusive, it did demonstrate a measure of acceptance within the scientific community.

    The Court ruled that Fox’s challenge regarding the “partially susceptible” population goes to the weight and credibility of Blaisdell’s testimony, not its admissibility. The Court also recognized the distinction between herd immunity thresholds and public health vaccination goals.

    Blaisdell’s reliance on sources like the CDC and state health reports, as well as her clear explanation during deposition, provided sufficient support for the 95% target as a public health goal. Moreover, Blaisdell sufficiently distinguished herd immunity threshold calculations from the public health goal of 95% vaccination coverage. Therefore, challenges to the weight and credibility of the 95% goal did not prevent the testimony from being admissible.

    Held

    The Court dismissed without prejudice Gregory Fox’s motion to partially exclude the testimony of Dr. Laura Blaisdell.

    Key Takeaway:

    This case highlights the importance of distinguishing between different types of scientific targets, such as herd immunity thresholds and public health goals. It also demonstrates the Court’s role in evaluating the reliability and relevance of expert testimony under the Daubert standard. The Court’s decision emphasizes that challenges to the factual underpinnings of expert opinions primarily affect their weight and credibility, not necessarily their admissibility.

    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
  • Why Expert Legal Interpretations Were Excluded in Section 504 Case

    Why Expert Legal Interpretations Were Excluded in Section 504 Case

    O.B., diagnosed with ADHD at age seven, sustained a severe self-inflicted gunshot wound, resulting in permanent blindness. Following the incident, his parents alleged that Colbert Elementary School in the Mead School District (MSD) failed to provide him with necessary accommodations under the Rehabilitation Act and the Americans with Disabilities Act. Central to the dispute was whether the shooting was accidental or a suicide attempt.

    The heart of the legal dispute centered on the admissibility of expert testimony from Amy Klosterman. This sparked a sharp conflict between the Defendant’s objections and the Plaintiff’s counterarguments.

    Law & Legal Expert Witness

    Amy Klosterman conducts neutral investigations of school and workplace issues. Klosterman has over 15 years of experience conducting investigations to help serve your school or company. She is an Association of Workplace Investigators Certificate Holder (AWI-CH). She has been trained as a Title IX investigator under the 2024 Title IX regulations (K12 and higher education), and as a Title IX investigator and decision maker under the 2020 Title IX regulations (K12 and higher education).

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

    Discussion by the Court

    Defendant’s Objection

    First and foremost, the Defendant, MSD, moved to exclude Klosterman’s testimony, asserting that her report was replete with improper legal conclusions. In essence, they argued that she was overstepping her role as an expert witness by interpreting and applying legal standards, specifically those of Section 504 of the Rehabilitation Act, which is the Court’s responsibility. Furthermore, MSD was concerned that Klosterman’s interpretations would unduly influence the jury, potentially leading them to defer to her legal opinions rather than forming their own judgments. They wanted to protect the integrity of the legal process, ensuring the jury was guided by the court’s legal instructions.

    Essentially, the defense argued that the expert was giving legal conclusions that should be left to the court.

    Plaintiff’s Opposition

    Conversely, the Plaintiffs countered that Klosterman’s testimony was not about providing legal conclusions but about offering a factual analysis of whether MSD’s actions complied with established procedures and regulations under Section 504. Specifically, they argued that her expertise lay in the procedural aspects of disability law and that she was merely assessing whether the district followed those procedures.

    Moreover, they tried to distinguish between giving a legal opinion on “deliberate indifference” versus giving an opinion on the factual process of the school district, and if that process was followed. Additionally, the Plaintiffs also argued that Klosterman’s testimony was essential to help the jury navigate the complex regulatory framework of Section 504, claiming that the regulations were highly technical and required expert clarification. Finally, they also requested that if the court found portions of the testimony inadmissible, it should narrow the scope instead of fully excluding it.

    Analysis

    Ultimately, the Court sided with the Defendant, excluding Klosterman’s testimony.

    Improper Legal Conclusions:

    Firstly, the Court found that Klosterman’s report contained numerous legal conclusions, including interpretations of Section 504 regulations and opinions on MSD’s compliance. Indeed, her report directly stated how the Office for Civil Rights (OCR) would rule on the case, and gave legal opinions on the school districts legal requirements under section 504. Therefore, the Court highlighted that the expert was essentially instructing the jury on applicable law, which is the role of the Court.

    Rejection of “Complex Framework” Argument:

    Secondly, Plaintiffs argued that Klosterman’s testimony was necessary to explain the complex regulatory framework of Section 504. However, the Court rejected this, stating that the regulations were not so complex as to warrant expert legal interpretation, and that many of the experts statements were direct copies of the regualtions. Furthermore, the Court also noted that legal expert testimony is more acceptable in bench trials, where a judge, rather than a jury, is the fact-finder.

    Moreover, the Court noted that while expert testimony on technical matters is sometimes allowed, this case did not meet the criteria.

    Held

    The Court granted the Defendant’s motion to exclude the testimony of Amy Klosterman.

    Key Takeaway:

    In conclusion, this case serves as a reminder of the limitations of expert testimony. Experts can provide valuable insights into factual matters, but they cannot usurp the court’s role in interpreting and applying the law. Thus, in cases involving disability law, understanding the nuances of expert testimony is crucial for both Plaintiffs and Defendants.

    Case Details:

    Case Caption: Boe Et Al V. Mead School District
    Docket Number: 2:23cv319
    Court: United States District Court, Washington Eastern
    Order Date: March 6, 2025
  • Accounting Expert Witness’ Calculations of Lost Profits and Plow-Down Costs Survives Daubert Challenge

    Accounting Expert Witness’ Calculations of Lost Profits and Plow-Down Costs Survives Daubert Challenge

    Polypack sued Nestlé for breach of contract and breach of implied covenant of good faith, claiming Nestlé failed to make final payments for equipment and service fees. Nestlé counterclaimed, alleging defective equipment and failure to meet performance requirements, resulting in significant financial losses, including lost profits, additional labor costs, and storage fees.

    Nestlé retained David R. Tantlinger, Jr., a Certified Public Accountant (CPA), to provide expert testimony on the damages incurred due to Polypack’s alleged equipment failures. Polypack challenged Tantlinger’s qualifications, the reliability of his methodologies, and the relevance of his opinions, seeking to exclude his testimony.

    Accounting Expert Witness

    David R. Tantlinger, Jr. has been a CPA for 39 years and is “experienced in performing accounting services, including forensic accounting services and the computation of damages to commercial and other enterprises.” 

    He has experience in accounting, taxation, finance and business management with a variety of industries.

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

    Discussion by the Court

    Qualification

    Polypack argued that Nestlé failed to adequately define Tantlinger’s specific field of expertise. They claimed this lack of clarity made it impossible to properly assess his qualifications, suggesting Nestlé was trying to pass off company information as expert opinion.

    Nestlé asserted that they clearly identified Tantlinger as an expert on damages. They emphasized his long-standing experience as a CPA and his specific experience in forensic accounting and damages calculations. They also pointed out that Polypack had the opportunity to question Tantlinger’s qualifications during his deposition.

    The Court found Tantlinger qualified, noting his 39 years as a CPA and experience in forensic accounting and damages computation. The Court also noted that Polypack had opportunity to question the expert at deposition, and failed to do so.

    Reliability

    Polypack’s Objection

    Polypack attacked the reliability of Tantlinger’s methodologies. They alleged he:

    • Failed to identify or apply established methodologies for calculating lost profits.
    • Did not conduct independent research or analysis.
    • Ignored other potential causation factors that could have contributed to Nestlé’s losses.

    Nestlé’s Opposition:

    • Providing detailed explanations of his calculations, demonstrating that they were not arbitrary.
    • Stating that damages experts are allowed to rely on information provided by the client.
    • Arguing that questions about other potential causes of losses go to the weight of the evidence, not its admissibility.

    Court Observation:

    The Court rejected Polypack’s arguments, emphasizing that Tantlinger explained his calculations and that a damages expert can rely on client-provided data. The Court stated that questioning the causation factors goes to the weight of the evidence, not its admissibility.

    Relevancy:

    Polypack argued that many of Tantlinger’s calculations were simple mathematical operations that required no specialized expertise. They contended that his testimony would not “assist the trier of fact” because it was within the understanding of a layperson.

    Nestlé acknowledged that some calculations were mathematical but emphasized that Tantlinger’s work involved extensive data analysis, document review, and the application of accounting principles. They argued that this level of analysis went beyond the capabilities of a layperson and would assist the jury.

    Tantlinger calculated Nestlé’s total damages—including lost profits and plow-down costs resulting from production delays allegedly caused by the equipment, which are clearly beyond simple arithmetic. While acknowledging that simple math is not typically considered expert testimony, the Court found that Tantlinger’s analysis of extensive data and complex calculations, including lost profits, made his testimony helpful to the jury. Tantlinger compiled and analyzed a large amount of data to perform the challenged calculations.

    Held

    The Court denied the Plaintiff Polypack, Inc.’s motion to exclude Nestlé USA, Inc.’s expert witness David R. Tantlinger, Jr.

    Key Takeaway:

    This case serves as a valuable example of the challenges involved in admitting expert testimony. The Court’s meticulous application of the Daubert standard and Rule 702 highlights the importance of thorough preparation and clear articulation of expert opinions. This case also shows the importance of proper deposition preparation, and how those depositions can be used in motions to exclude expert witnesses.

    Case Details:

    Case Caption: Polypack, Inc. V. Nestle USA, Inc.
    Docket Number: 8:23cv318
    Court: United States District Court, Florida Middle
    Order Date: March 7, 2025
  • Economics Expert’s Revenue-Per-Minute Analysis Rejected under Daubert

    Economics Expert’s Revenue-Per-Minute Analysis Rejected under Daubert

    The copyright infringement case between Buck Goodday Woodall (“Bucky”) and The Walt Disney Company over the film “Moana” has highlighted the critical role of expert testimony in legal disputes, particularly when dealing with complex financial analyses.

    Plaintiff Woodall sought to demonstrate financial damages by presenting expert testimony from Stan Smith, who proposed a “revenue-per-minute” analysis to allocate Disney+’s revenues to “Moana.” Smith’s methodology aimed to estimate the portion of Disney+’s revenue attributable to “Moana” based on viewing time.

    However, Disney challenged the reliability of this analysis, arguing it failed to meet the standards set by Federal Rule of Evidence 702 and the Daubert ruling.

    The Court separately excluded Plaintiff’s expert Smith from opining regarding “Disney+’s revenues” that “can be proportionally allocated to Moana based on an analysis of revenue-per-minute of home viewing” on the ground “Smith’s revenue-per-minute analysis fails to satisfy Rule 702’s reliability requirement.”

    Plaintiff filed a motion for reconsideration of the Court’s order excluding Smith’s revenue-per-minute analysis.

    Economics Expert Witness

    Stan Vladimir Smith, Ph.D. is a nationally renowned economist who received his Ph.D. from the University of Chicago. He is President of Smith Economics Group, Ltd., headquartered in Chicago, IL, which provides economic and financial consulting nationwide. He has worked as an economic and financial consultant since 1974, after completing a Research Internship at the Federal Reserve, Board of Governors, in Washington, D.C.

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

    Discussion by the Court

    Disney’s objections centered on the lack of sufficient data, the absence of general acceptance within the relevant community, the lack of testing and peer review, and the unknown rate of error in Smith’s methodology. They essentially argued that the method itself was unsound. Woodall countered by claiming the analysis was “reasonable under the circumstances” due to Disney’s alleged withholding of revenue data and later attempted to introduce a “material difference in law” argument based on a recent Supreme Court decision, Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024), which was an attempt to get the Court to reconsider the ruling.

    The Court, however, sided with Disney, emphasizing the importance of reliability and adherence to the Daubert factors. The Court found that Woodall failed to demonstrate that Smith’s analysis was based on adequate data, was generally accepted, had been tested, or had a known rate of error. The “reasonable under the circumstances” argument was dismissed, as was the “material difference in law” claim, which was deemed unrelated to the exclusion of Smith’s testimony.

    Held

    Plaintiff failed to demonstrate a material difference in fact or law or any other basis for reconsideration of the Court’s order granting Defendant BVHE’s motion to preclude Plaintiff’s retained expert Stan Smith from opining at trial about Disney+. Accordingly, the Court denied the Plaintiff’s motion for reconsideration.

    Key Takeaway:

    The Court’s decision highlighted the stringent standards expert testimony must meet, particularly in complex financial matters, and underscored the importance of rigorous methodology and empirical support.

    Case Details:

    Case Caption: Buck G. Woodall V. The Walt Disney Company
    Docket Number: 2:20cv3772
    Court:  United States District Court, California Central
    Order Date: February 24, 2025
  • Court Rejects Anesthesiology Expert’s Testimony Over Incomplete Medical Evidence

    Court Rejects Anesthesiology Expert’s Testimony Over Incomplete Medical Evidence

    In a recent case involving a police shooting in Las Cruces, the admissibility of expert testimony became a central point of contention. The Plaintiff, who sustained injuries during the incident, sought to introduce Dr. Alen Ternian as a pain management expert. However, the Defendants challenged Ternian’s testimony, raising significant concerns about the completeness and reliability of his expert report.

    Ternian was retained to provide expert opinions on the Plaintiff’s pain management as it related to the incident. However, the Defendants argued that the Plaintiff failed to comply with Federal Rule of Civil Procedure 26(a)(2)(B), which requires a complete statement of all opinions and the basis and reasons for them. Specifically, the Defendants pointed out that Ternian’s initial report lacked crucial supporting data and facts.

    Anesthesiology Expert Witness

    Alen Ternian is a board-certified anesthesiologist, with a history of practice that necessarily deals with the treatment of patients in pain. His employment history includes a medical practice and associate professor lecturer and examiner at Ceder Sinai Medical School.

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

    Discussion by the Court

    Defendant’s Objections

    The core of the Defendants’ objection centered on the Plaintiff’s alleged failure to comply with Federal Rule of Civil Procedure 26(a)(2)(B). They argued Ternian’s report lacked the underlying facts and data supporting his conclusions.

    Defendants objected to the late and disorganized production of discovery materials, including a large volume of unorganized medical records and the delayed provision of Ternian’s curriculum vitae. This hindered their deposition preparation.

    Defendants emphasized Ternian’s own statements revealed his opinion was incomplete, as he stated further medical imaging was necessary, but this was never obtained. Along with Rule 26, the Defendants also moved to exclude the opinions and testimony of Ternian, pursuant to Federal Rules of Evidence 403 and 702.

    The Defendants requested the Court to exclude late-produced records, prevent further disclosures, exclude Ternian’s testimony, and/or hold a Daubert hearing.

    Plaintiff’s Opposition:

    The Plaintiff countered that they provided relevant medical records and information, arguing the Defendants had access to necessary records prior to Ternian’s deposition.

    Plaintiff disputed discovery violation claims, asserting they were responsive to requests and did not disobey orders, arguing exclusion would be an improper sanction.

    Plaintiff argued that during the deposition, the defense questioned Ternian about his initial report and his methodology, and therefore they had a fully informed deposition.

    Court’s Observations

    The Defendants provided the Plaintiff with multiple opportunities to rectify these deficiencies. However, instead of providing the requested data, the Plaintiff produced a large volume of unorganized medical records and delayed the disclosure of Ternian’s curriculum vitae until after his deposition. This delayed disclosure severely hampered the Defendants’ ability to adequately prepare for the deposition and challenge the expert’s opinions.

    Rule 37 Sanctions and the “Harmless or Justified” Test:

    The Court found that Ternian’s report was incomplete because it relied on medical imaging (CT scans and ultrasounds) that were never performed. Ternian himself acknowledged the need for further information to provide a complete medical opinion. This failure to obtain necessary data violated Rule 26, which led the Court to consider sanctions under Rule 37(c)(1).

    Under Rule 37(c)(1), if a party fails to provide information required by Rule 26(a), they are generally prohibited from using that information or witness at trial, unless the failure was substantially justified or harmless. The Court considered factors such as prejudice to the Defendants, the ability to cure the prejudice, potential disruption of the trial, and the Plaintiff’s bad faith or willfulness.

    The Court’s Ruling:

    The Court determined that the Plaintiff’s violations of Rule 26 were not justified or harmless. The Defendants were prejudiced by the incomplete report and the late disclosure of records. The Court highlighted the Plaintiff’s failure to obtain necessary medical scans and the disorganized and delayed production of medical records. Although the Court did not find bad faith on the part of the Plaintiff, the other factors weighed heavily in favor of excluding Ternian’s testimony.

    Held

    The Court found that Plaintiff’s expert, Dr. Alen Ternian, failed to comply with Rule 26’s expert disclosure requirements which was not substantially justified or harmless. Therefore, the Court granted Defendants’ motion to exclude and Ternian was excluded from giving testimony at trial pursuant to Rule 37.

    Key Takeaways:

    • Timely and organized disclosure of expert information is essential for effective cross-examination and trial preparation.
    • Compliance with Rule 26 is crucial for the admissibility of expert testimony.
    • Failure to provide a complete and well-supported expert report can lead to exclusion of testimony under Rule 37.
    • Courts consider various factors, including prejudice and the ability to cure, when determining whether a Rule 26 violation is harmless or justified.

    Case Details:

    Case Caption: Strickland V. City Of Las Cruces Et Al
    Docket Number: 2:23cv116
    Court: United States District Court, New Mexico
    Order Date: March 06, 2025
  • Expert Witness Reliability: Sims v. BMW Case Examines “Parroting” Claims

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

    William Harrison Sims was injured when his BMW’s airbag deployed improperly, sending shrapnel into his face. He sued BMW, alleging negligence and strict liability. To prove the extent of his injuries and future medical needs, Sims presented expert testimony from Dr. Craig Lichtblau, a board-certified physician specializing in physical medicine and rehabilitation and brain injury medicine.

    Physical Medicine & Rehabilitation Expert Witness

    Craig Lichtblau is board certified in physical medicine & rehabilitation and board certified in brain injury medicine through the American Academy of Physical Medicine & Rehabilitation. He has a robust clinical practice, maintains staff privileges at five hospitals, and has impressive credentials in both leadership and academic roles. 

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

    Discussion by the Court

    The Defendants launched two main challenges, both substantive and procedural, aiming to exclude Lichtblau’s crucial evidence:

    Substantive Challenge:

    BMW argued Lichtblau’s report merely “parroted” the opinions of other experts, particularly regarding future medical needs. They pointed to a chart in his report that referenced other doctors’ recommendations. Their argument was that Lichtblau was simply compiling and repeating the opinions of these other experts, rather than providing his own independent medical assessment.

    Plaintiff emphasized that life care planners, like Lichtblau, routinely rely on physicians’ recommendations to project future medical needs. Excluding such reliance would make the expert’s opinion unreliable.

    They highlighted that Lichtblau’s report was based on a comprehensive rehabilitation evaluation, including physical examinations, medical record reviews, and detailed analyses, demonstrating independent judgment.

    The Court found BMW’s arguments underdeveloped and lacking in relevant legal support. It acknowledged that experts in this field legitimately rely on other medical professionals. The Court reviewed the extensive work done by Lichtblau and determined that his opinions were well grounded, and not simply parroted.

    Procedural Challenge:

    BMW also objected to Lichtblau’s testimony on the grounds that he failed to appear for a scheduled deposition. This objection was a procedural one, arguing that the expert had not cooperated with the discovery process, potentially prejudicing the defense’s ability to prepare its case.

    Sims’ team responded that the scheduled deposition was set after the discovery deadline. They pointed out that BMW had not made any attempt to compel the deposition before the deadline. They argued that BMW was attempting to use a procedural technicality to exclude valid expert testimony.

    The Court emphasized that BMW failed to adhere to procedural rules by scheduling a deposition after the discovery deadline and not seeking to compel the deposition earlier.

    The Court stated that they would not allow the Defendant to seek sanctions for a deposition that they scheduled outside of the discovery window.

    Held

    The Court denied the Defendants’ motion to exclude the testimony of Dr. Craig Lichtblau or, in the alternative, for sanctions regarding Plaintiff’s failure to present Lichtblau for deposition.

    Key Takeaways:

    • Experts, particularly in fields like life care planning, are often allowed to rely on the opinions and findings of other experts (like treating physicians) as a foundation for their own analyses.
    • Parties must adhere to procedural rules, such as discovery deadlines, when seeking to challenge expert testimony. Failure to follow these rules can result in the Court rejecting objections.

    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

    Case Details:

    Case Caption: Sims V. Bmw Of North America LLC
    Docket Number: 6:22cv1685
    Court Name: United States District Court, Florida Middle
    Order Date: March 5, 2025
  • Tennessee Law & Expert Witnesses: Blazin Wings Case Highlights Damage Limits

    Tennessee Law & Expert Witnesses: Blazin Wings Case Highlights Damage Limits

    Charles Haney, an ATM business owner, suffered injuries after tripping over a mat at a Blazin Wings restaurant in Jackson, Tennessee. He was visiting the restaurant to perform routine maintenance on an ATM, one of several that Haney owned and operated throughout West Tennessee. 

    Haney initiated this tort action against Blazin Wings, seeking damages, including lost wages, and retained vocational expert Bruce Brawner and economist Bill Malcolm Brister to support his claims.

    Vocational Rehabilitation Expert Witness

    Bruce Brawner is a vocational rehabilitation counselor and also a life care planner. He formed Brawner & Associates in Madison, Mississippi. He has a master’s degree in vocational rehabilitation counseling from Mississippi State University.

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

    Finance Expert Witness

    Bill Malcolm Brister teaches finance at Millsaps College. He holds a PhD. from the University of Arkansas. He has done a good bit of consulting in the area of litigation support.

    Want to know more about the challenges Bill Malcolm Brister has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Relying on Federal Rules of Evidence 702 and 403, Blazin Wings made three overarching arguments with respect to Brawner: first, Brawner’s testimony was unnecessary because the jury can assess Haney’s loss of earning capacity without that testimony; second, Brawner’s opinions were unreliable and untrustworthy; and third, Brawner’s testimony will confuse the jury. As to Brister, Blazin Wings likewise invoked Rules 702 and 403. It argues that ” Brister’s opinions are based solely on the unreliable and untrustworthy figures used by Brawner,” and should accordingly be excluded as cumulative, duplicative, and unreliable. Finally, Blazin Wings contended that because Haney cannot recover damages for loss of household services under Tennessee law, Brawner’s and Brister’s opinions regarding that loss are irrelevant and otherwise unreliable. 

    Bruce Brawner

    Defendant’s Objections:

    Blazin Wings first argued that Brawner’s expert testimony was not necessary for the jury to calculate Haney’s lost earning capacity. 

    They asserted that Haney could provide sufficient testimony about his injuries and their impact on his earning capacity, making Brawner’s specialized input unnecessary. The Court held that Haney would be able to testify to the obvious nature of his symptoms and its impact on his ability to work. But it does not follow that an expert witness’s testimony is unnecessary to help establish the extent of his losses. This basis is thus insufficient to exclude Brawner’s testimony.

    Blazin Wings criticized Brawner’s reliance on Department of Labor data for “ATM Servicers,” claiming it was an imprecise match for Haney’s unique business. They insisted on the necessity of Haney’s actual financial records. They argued that Brawner failed to account for Haney’s continued income from his ATMs after the incident. Blazin Wings contested Brawner’s work-life expectancy calculation, arguing that it ignored Haney’s health and medical history, including that Haney has diabetes and has had both his bladder and prostate removed.

    Blazin Wings contended that Brawner’s testimony would confuse the jury and waste time, as the jury could independently assess Haney’s damages.

    Analysis:

    The Court found Brawner’s testimony regarding lost wages relevant and reliable under Rule 702. It emphasized that challenges to Brawner’s data and assumptions affected the weight of his testimony, not its admissibility. The Court stated that cross examination was the appropriate place to challenge the experts findings.

    Bill Brister

    Defendant’s Objections:

    Blazin Wings argued that Brister’s opinions were unreliable because they were based on Brawner’s “unreliable” data. They argued that Brister’s testimony was cumulative, simply “parroting” Brawner’s calculations.

    In his report, Brister relied on the lost earnings calculations provided by Brawner and government data to calculate the present value of those losses. In the appendices to his report, Brister outlined his calculations for various scenarios and provides the sources he relied on.

    Blazin Wings has presented no authority that an expert may not rely on the calculations of another expert. Indeed, under Rule 703 of the Federal Rules of Evidence, “experts may rely on data from others, at least to the extent that the data is of the type reasonably relied on by other experts in the field.”

    Moreover, the Court held that Brister’s testimony is probative as to the issue of damages. Furthermore, reliance on another expert’s report does not necessarily render that expert’s testimony cumulative. While Brister’s report may go to the same issue, it nonetheless offers a distinct perspective on the time-value of Haney’s purported losses. 

    Loss of Household Services

    Blazin Wings argued that Tennessee law doesn’t allow recovery for the general “loss of value” of one’s own household services. The Court agreed, stating that only actual expenditures for replacement household services are recoverable.

    Basically, Brawner relied on “expectancy data” provided by the Department of Labor to inform his calculation——not testimony from Haney regarding what he had paid or would pay someone else to perform household services. Similarly, in his expert report, Brister did not identify any actual or predicted expenditures incurred by Haney on which he based his present value of lost household services figure.

    Since Brawner and Brister’s calculations were based on general data, not Haney’s actual expenses, their testimony on household service loss was excluded.

    Held

    The Court granted in part and denied in part the Defendant Blazin Wings’s motions in limine to exclude the testimony of Bruce Brawner and Malcolm Brister.

    Key Takeaways:

    • Projections of lost wages, by nature, involve a degree of speculation; even where an expert’s factual bases for their conclusions are not particularly strong. It is not proper for the Court to exclude expert testimony merely because the factual bases for an expert’s opinion are weak.
    • Also, the Court recognized that while Haney could testify to the impact of his injuries, expert testimony was necessary to quantify his economic losses.

    Case Details:

    Case Caption: Haney V. Buffalo Wild Wings, Inc.
    Docket Number: 2:23cv2686
    Court: United States District Court, Tennessee Western
    Order Date: March 4, 2025
  • Forensic Pathology Expert Witness’ Expertise did not Extend to Prison Operational Procedures

    Forensic Pathology Expert Witness’ Expertise did not Extend to Prison Operational Procedures

    Shonnica Anderson, representing the estate of her son Marcus Hayes, who died by suicide in a Georgia prison, sued prison officials for Eighth and Fourteenth Amendment rights violations and the Georgia Department of Corrections (GDC) for negligence. A key point of contention arose over the expert testimony of Defendants’ medical examiner expert Dr. James Claude Upshaw Downs.

    Downs, a forensic pathologist, provided expert opinions that included:

    • Hayes died from ligature self-strangulation.
    • He detailed the time frame in which Hayes would have lost consciousness.
    • Crucially, he asserted that Hayes had “little hope of survival” due to “multiple temporal barriers” to rescue, rendering a successful rescue “highly unlikely.”

    Forensic Pathology Expert Witness

    James Claude Upshaw Downs has been a Medicolegal Consultant & practicing Forensic Pathologist/Medical Examiner for over 31 years. His medical practice includes serving as the Medical Director of the Physician Assistant Program at Charleston Southern University. Downs also serves as Associate Medical Examiner for Gwinnett County Georgia and as a Forensic Pathologist for the Charleston County SC Coroner’s Office. His service work includes the Cold Case foundation, examining unresolved complex cases.

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

    Discussion by the Court

    Anderson’s legal team challenged Downs’ qualifications and the reliability of his testimony, specifically targeting his conclusions about the likelihood of a successful rescue.

    Qualifications

    The core argument focused on Downs’ lack of expertise in prison operations, suicide intervention, and correctional officer standards. His own deposition revealed he had no formal training or experience in these areas.

    The Court agreed, stating that determining the likelihood of rescue required expertise in how prisons “ordinarily, if functioning properly, operate.” Since Downs lacked this, his opinions on the probability of a successful rescue were deemed inadmissible.

    Reliability

    The Court focused on the portions of the experts testimony that stepped outside of his known expertise. The portions of his expert opinion that dealt with the medical aspects of the case where allowed, those portions that attempted to give expert opinion on the operation of the prision where not allowed. The Court did not throw out the entire testimony, but only the parts that where outside of his area of expertise.

    The Court emphasized that while Downs was qualified as a forensic pathologist, his expertise did not extend to prison operational procedures. It stressed that exclusion of expert testimony is the exception, not the rule, and determined that the the wholesale exclusion of his testimony was not required.

    Held

    The Court granted Plaintiff’s motion to exclude as to Dr. James Claude Upshaw Downs’ sixth conclusion and those parts of his seventh conclusion concerning the likelihood of a successful rescue.

    Key Takeaway:

    Just because an expert is qualified in one area (e.g., forensic pathology) doesn’t automatically qualify them to testify on all related matters (e.g., prison operations). Courts carefully scrutinize an expert’s qualifications to ensure they align with the specific topics they address. Determining the likelihood of a successful rescue in a prison setting requires expertise in prison operations, not just medical knowledge.

    Case Details:

    Case Caption: Anderson V. Georgia Department Of Corrections Et Al
    Docket Number: 1:21cv2585
    Court: United States District Court, Georgia Northern
    Order Date: February 27, 2025

  • Ninja’s Silent Danger: Court Admits Expert’s Warning Claim

    Ninja’s Silent Danger: Court Admits Expert’s Warning Claim

    Allyson Bolden sued SharkNinja after sustaining injuries while using their Intellisense Kitchen System food processor. Bolden claimed a design defect led to the lid jamming, resulting in her injury when trying to remove it. Defendant SharkNinja challenged the admissibility of Plaintiff’s expert, Dr. Wade Lanning‘s, testimony, arguing his qualifications, reliability, and relevance were lacking.

    Lanning, a materials scientist and safety engineer, conducted a thorough analysis of the food processor. His key findings included:  

    • Design Flaw: The lid could be attached in a misaligned manner, locking into place without engaging the safety mechanism, leading to jamming.
    • Jamming Mechanism: Testing revealed the lid could jam due to this misalignment, consistent with Bolden’s experience. Scratches on Bolden’s bowl supported this conclusion.
    • Lack of Warnings: The product manual lacked warnings about lid jamming.
    • Ineffective Engineering Controls: The flexible bowl and shallow lug/notch design failed to prevent misalignment.
    • Alternative Designs: Lanning suggested safer alternatives, like a square lid or twist-to-lock mechanism, already used in other products.
    • Causation: He concluded the jammed lid, lack of warnings, and inadequate safeguards proximately caused Bolden’s injuries.

    Materials Science Expert Witness

    Wade Lanning is a forensic investigator who uses his expertise in materials science and engineering to determine how and why a failure or accident occurred. Lanning is also a safety engineer and analyzes how product design, manufacturing, instructions and warnings, and consumer behavior relate to an accident. Lanning investigates incidents of any scope, from minor property damage to major accidents involving loss of life. He also works as a consultant in material processing, failure analysis, and risk management, and conducts research in forensic investigation and accident prevention.

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

    Discussion by the Court

    Qualifications

    SharkNinja argued Lanning, a materials scientist, was unqualified to opine on warnings.

    The Court found Lanning’s experience in safety engineering and assessing warnings in consumer products, including food processing machinery, sufficient. Lack of specialization impacts weight, not admissibility.

    Reliability

    SharkNinja claimed Lanning’s force testing was inadequate and his opinions on alternative designs and causation were unreliable.

    Force Testing of Jamming

    Sharkninja claimed he did not test the force required to assemble the lid in a jamming fashion. The Court found that this was incorrect, and that Lanning had indeed performed force testing. Sharkninja then tried to change their argument, which the Court deemed waived. The Court also stated that even if the argument was not waived, that Lanning’s testing was sufficient.

    Force Testing of Lid Removal

    Sharkninja claimed that Lanning should have tested the force required to remove a jammed lid. The Court determined that his testing on the force of jamming, and the analysis of the damaged food processor was sufficient.

    Alternative Designs

    The Court deemed that testing of alternative designs was not always required, especially when certain of the alternative designs already exist in the industry. Moreover, the alternative designs are not complex.

    Warning Opinions

    Plaintiff did not allege that Bolden was injured because she did not know how to remove the lid under ordinary circumstances but instead that she was unable to remove the lid normally due to the jam which stopped the handle from raising fully and that no warnings were provided regarding risks associated with the lid jamming. 

    The Court ruled that Lanning’s warning opinions were not contrary to the record, as claimed by the Defendant.

    Relevance

    SharkNinja argued Lanning’s causation opinion was irrelevant as his test didn’t perfectly replicate Bolden’s experience.

    The Court found Lanning’s test replicated the core of Bolden’s experience: the lid not releasing fully through the use of the release button, requiring removal of the lid through other means.

    Held

    The Court held that Wade Lanning is qualified, has employed a reliable methodology, and his opinions are relevant, and accordingly denied Defendant’s motion to exclude Lanning.

    Key Takeaways:

    The Court emphasized that:

    1. Daubert doesn’t require specific credentials; relevant expertise is sufficient.

    2. Reliability can be established through scientific methods or professional experience.

    3. Lack of specialization impacts weight, not admissibility.

    4. Testing is one measure of reliability, but not always required.

    5. Imperfect testing is a matter for cross examination.

    Case Details:

    Case Caption: Haigler V. Sharkninja Operating LLC
    Docket Number: 1:23cv326
    Court: United States District Court, Illinois Northern
    Order Date: March 3, 2025
  • Expert Witness Disclosure: When Technicalities Don’t Trump Substance

    Expert Witness Disclosure: When Technicalities Don’t Trump Substance

    Three former medical residents sued Southwestern Vermont Medical Center (SVMC) and William Sarchino, alleging negligence regarding the operation of x-ray machines. Subsequently, Plaintiff Shazad Buksh disclosed Dr. Phillip Beron, M.D., as an expert to support claims of inadequate training and lack of protective procedures during x-rays.

    Defendants sought to exclude Beron’s report and opinions, citing two main objections:

    • Incomplete Disclosure: The initial expert report failed to include a list of Beron’s previous expert opinions and cases from the preceding four years, as required by Federal Rule of Civil Procedure 26(a)(2).
    • Limiting Language: Beron’s report included the statement, “This report is not intended to be an exhaustive summary of all my conclusions or reference materials,” which Defendants argued made the report incomplete.

    Radiation Oncology Expert Witness

    Phillip Beron is a practicing physician licensed by the state of California and the state of Arizona. He is board-certified in therapeutic radiology/radiation oncology, which includes being tested and passing the sections on genitourinary malignancies, which includes bladder cancer.

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

    Discussion by the Court

    Plaintiff’s Opposition

    In response, Plaintiff acknowledged the initial oversight regarding the list of prior expert opinions, but emphasized that the violation had been remedied. Additionally, Plaintiff argued that the limiting language in Dr. Beron’s report was a standard reservation, allowing for flexibility in explaining reasoning and opinions without introducing new opinions.

    Analysis

    Procedural Non-Compliance

    Initially, the Court noted that Defendants’ counsel did not comply with Federal Rule of Civil Procedure 37 and Local Rule 26(c), which require good-faith efforts to resolve disputes before filing motions.

    Remediation of Disclosure Issue

    However, the Court acknowledged that the initial failure to list prior opinions had been corrected, negating any prejudicial impact. Furthermore, the Court offered to extend the discovery schedule for Beron’s deposition if the defense requested it.

    Interpretation of Limiting Language

    Moreover, the Court accepted Plaintiff’s argument that the limiting language was a typical reservation, allowing for flexibility without implying new opinions. The Court stated that any attempt to introduce new opinions at trial could be prevented by court order.

    Denial of Motion to Exclude

    The Court denied Defendants’ motion to exclude Beron’s expert report and opinions, finding that the technical deficiencies did not warrant exclusion.

    Held

    The Court denied the Defendants’ motion to exclude the opinions of Phillip Beron, M.D. 

    Key Takeaway:

    Indeed, this case highlights the importance of adhering to procedural rules regarding expert witness disclosures. However, it also demonstrates the Court’s discretion in addressing technical deficiencies. Specifically, the Court prioritized substance over minor procedural errors, while simultaneously emphasizing the need for good-faith efforts to resolve disputes. Consequently, this decision underscores the Court’s role in ensuring fair and efficient litigation.

    Case Details:

    Case Caption: Buksh Et Al V. Dr. William Sarchino Dpm Foot And Ankle Surgeon Et Al
    Docket Number: 2:21cv190
    Court: United States District Court for the District of Vermont
    Order Date: February 27, 2025