The Plaintiff, a synagogue and broadcasting station, filed an insurance claim with Defendant Philadelphia Indemnity Insurance Company for damage to their custom slate roof caused by a windstorm. They hired Peter Ridulfo of Claims Pro Public Adjusters to assist with the claim. Ridulfo’s compensation was a contingent fee, tied to the amount recovered in the insurance claim, including any damages won through litigation.
The Plaintiff designated Ridulfo as a non-retained expert, intending for him to testify about the damages, the Defendant’s alleged unreasonable actions, industry standards, and his opinions on the Defendant’s duty and alleged breaches.
The Defendant challenged Ridulfo’s expert testimony, arguing that his contingent fee arrangement created a direct financial interest in the case’s outcome, rendering his opinions unreliable.
Insurance Expert Witness
Peter Ridulfo is a public adjuster with specialized knowledge of claims handling practices and standards in the industry, as well as insurance and construction regulations related to repairs.
The Plaintiff argued Ridulfo was testifying based on his observations as a public adjuster and that his expert testimony was merely to explain his actions. They claimed he was not a retained expert and was not being compensated solely for his opinion.
Analysis
Financial Stake
The Court acknowledged Ridulfo’s contingent fee agreement, which explicitly tied his compensation to the litigation’s outcome.
State Law & Contingent Fees
Applying Colorado law, the Court noted the “settled principle” against contingent fees for expert witnesses, emphasizing the need for impartiality.
Rule 403 Balancing Test
The Court adopted a Rule 403 balancing test to weigh the probative value of Ridulfo’s testimony against the potential for unfair prejudice.
Prejudice vs. Probative Value
The Court concluded that Ridulfo’s financial interest created a significant danger of unfair prejudice, outweighing the probative value of his expert opinions.
Cumulative Testimony
The Court noted that the Plaintiff had disclosed three other retained experts who could provide similar testimony, minimizing the prejudice of excluding Ridulfo’s expert opinions.
Fact Witness Testimony
The Court allowed Ridulfo to testify as a fact witness, enabling him to describe his actions and observations during the claims process.
Gatekeeping Function:
The Court emphasized that excluding Ridulfo’s expert testimony was not a sanction but an exercise of its gatekeeping function to protect the judicial process’s integrity.
Held
The Court granted the Defendant’s motion to exclude the testimony of Peter Ridulfo.
Key Takeaway:
This case underscores the importance of expert witness impartiality and the potential conflicts arising from contingent fee arrangements. Courts will scrutinize expert testimony where a financial interest exists, balancing probative value against the risk of unfair prejudice. This decision serves as a reminder of the Court’s gatekeeping role in maintaining the integrity of the judicial process.
Case Details:
Case Caption:
Simchat Torah Beit Midrash V. Philadelphia Indemnity Insurance Company
Docket Number:
1:23cv594
Court:
United States District Court for the District of Colorado
Sabelita Hawkins experienced a psychotic episode in 2011, leading to hospitalization and subsequent treatment at the Puget Sound Veterans Hospital. She alleges that despite informing Dr. Daniel Doan that her prescribed medication was ineffective, no changes were made to her treatment. Later, Dr. Carl Jensen diagnosed her with PTSD but also did not modify her care. A second psychotic episode resulted in Hawkins attacking her mother and facing arrest.
The Government retained Russell Vandenbelt, M.D., a licensed psychiatrist, and Michael Kovar, M.D., a licensed family medicine physician, as experts to opine on Doan’s and Jensen’s treatment of Hawkins. Hawkins sought to exclude both Vandenbelt’s and Kovar’s testimony on the basis that their opinions are neither reliable nor relevant to Hawkins’ allegations.
Psychiatry Expert Witness
Russell Vandenbelt specializes in behavioral medicine, and has over three decades of clinical experience as a licensed psychiatrist. He is also a “certified specialist” in addiction medicine, serves as a psychiatric consultant to medical, nursing, and pharmacy boards in Washington, and previously worked as a staff physician “managing patient withdrawal syndromes from opiates, alcohol, stimulants, and sedative-hypnotics.”
Michael Kovar is a family medicine physician with clinical interests in behavioral medicine. He has served as a board-certified family medicine physician and an assistant clinical professor at the University of Washington School of Medicine.
The Government retained Vandenbelt to conduct a “review of records regarding the adequacy of mental health treatment provided to Hawkins” and to “opine on the standard of care for Hawkins’ psychiatrist, Carl Jensen.”
Hawkins contended that Vandenbelt’s report (1) did not reflect his experience and knowledge (2) did not sufficiently explain his methodology; and (3) was not supported by “sufficient facts and data” or “medical analysis.”
Reliability of Standard of Care Testimony
Vandenbelt’s testimony reflects his specialized experience in “diagnosing, assessing, and treating” patients “with medication and psychotherapy.”
The Court rejected the argument that he lacked the knowledge to discuss medication effects and interactions, given his experience in addiction medicine.
In conclusion, the Court found Vandenbelt’s testimony on the standard of care to be reliable.
Methodology
The Court determined that Vandenbelt’s report sufficiently explained his methodology because he reviewed Doan’s and Jensen’s treatment decisions, applied his understanding of standard of care principles to the facts in the records, and used this information collectively to form his opinion that “Doan and Jensen provided adequate and appropriate treatment” of Hawkins’ symptoms based on the information they had at the time of treatment.
In deciding whether to exclude Vandenbelt’s testimony before trial, the Court “is not tasked with deciding whether he is right or wrong” and may “not exclude his opinions merely because they are impeachable.”
Daubert requires only that Vandenbelt’s testimony has “a reliable basis in the knowledge and experience of his discipline.” A psychiatry expert may testify about the adequacy of treatment a patient received based on a review of that patient’s past medical records.
Relevance
Hawkins also sought to exclude Vandenbelt’s testimony on relevance grounds, asserting that his testimony has “no clear connection” to her medical malpractice allegations.
In this case, the Defendants’ adherence to the standard of care is a necessary element of Hawkins’s medical malpractice claim, and therefore has a “valid connection” to this case.
The Court found Vandenbelt’s testimony on the standard of care relevant, as it directly addressed a key element of Hawkins’ malpractice claim.
Causation
Vandenbelt’s report opines on whether Doan and Jensen “acted inappropriately or below the standard of care” in treating Hawkins. However, Vandenbelt did not provide any opinion on causation.
To the extent that the Government sought to call Vandenbelt to testify about the cause of Hawkins’ second psychotic episode, however, the Court excluded that causation testimony. The Court reinforced that an expert cannot testify to matters outside their report.
Michael Kovar
The Government intended to introduce Kovar’s testimony that Doan “met the standard of care” in treating Hawkins and that Doan’s “actions neither caused nor could have prevented” Hawkins’ subsequent attack on her mother.
Hawkins sought to exclude Kovar’s testimony for the same reasons she sought to exclude Vandenbelt’s testimony.
Qualifications
The government countered that Kovar has over 28 years of clinical experience as a family medicine practitioner. Kovar’s report reflects his specialized experience serving as a board-certified family medicine physician, an assistant clinical professor at the University of Washington School of Medicine, and his clinical interests in behavioral medicine.
The Court agreed, noting that Kovar’s experience allowed him to analyze whether Doan’s treatment met the standard of care for a family medicine physician.
Hawkins argued that Kovar lacked the expertise to discuss the effects of oxycodone, alcohol, and antibiotics on her mental state. But as a family medicine physician with clinical interests in behavioral medicine, Kovar has knowledge and experience treating adults with medications. Kovar is therefore qualified to testify about medication effects and interactions.
Methodology
Hawkins also argued that Kovar’s report “did not contain an explanation of the methodology” he used to develop his opinion and “provided [only] a blanket opinion without further medical analysis.”
Kovar’s report explained, however, that he reviewed Hawkins’ complaint and the “pertinent medical records available to Doan at the time of Hawkins’ ” treatment with Doan. Kovar then reviewed Doan’s treatment decisions, applied his understanding of standard of care principles to the facts in the records.
The Court determined that Kovar’s “specialized knowledge and experience can serve as the requisite ‘facts or data’ on which he renders an opinion.” While Hawkins disagrees with Kovar’s conclusions, asserting that they are based on “misstated facts,” the Court may “not exclude Kovar’s opinions merely because they are impeachable.”
Relevance
Hawkins also argued that Kovar’s testimony has “no clear connection” to her medical malpractice allegations. The Court disagreed, stating that Kovar’s opinions on the standard of care and causation were directly relevant to the necessary elements of Hawkins’ claim.
Doan’s adherence to the standard of care and the causal link between his alleged negligence and Hawkins’ injuries are necessary elements of Hawkins’ medical malpractice claim.
Hawkins may test the expert witness’ credibility by cross-examining them about their methodology, sources, and conclusions at trial.
Held
The Court denied Hawkins’ motions to exclude Russell Vandenbelt and Michael Kovar.
Key Takeaway:
Hawkins V. United States highlights the critical role of expert testimony in medical malpractice cases and the court’s rigorous application of Daubert standards. The court’s decision underscores the importance of qualified experts, reliable methodologies, and relevant testimony. This case provides valuable insights for legal professionals and anyone interested in the intersection of law and medicine.
In a recent legal dispute, the admissibility of expert testimony regarding medical imaging and its correlation to PTSD research was challenged. Specifically, this case highlights the importance of timeliness and the application of Rule 702 of the Federal Rules of Evidence in evaluating expert qualifications and the reliability of their opinions.
Initially, the Defendant filed a motion in limine to limit the testimony of Travis Snyder, DO, an expert witness for the Plaintiff. Furthermore, the Defendant argued that Snyder was unqualified to testify on “imaging findings of PTSD” and that his opinions lacked supporting scientific data.
Neuroradiology Expert Witness
Travis Snyder is a neuroradiologist, with a certified sub-specialty in diagnosing and characterizing disorders of the nervous system, including the spine and brain. He is the residency director of radiology at Mountain View HCA hospital system and holds various academic appointments with 4 regional medical schools.
Firstly, the Defendant argued that Snyder, despite his expertise, was not qualified to interpret medical imaging specifically in the context of diagnosing or identifying PTSD. Moreover, the Defendant claimed that Snyder’s opinions lacked a solid foundation in established scientific data. In particular, they argued that he hadn’t provided concrete evidence, such as specific studies or research, to back up his claims about the correlation between imaging findings and PTSD.
Plaintiff’s Opposition and Clarification:
In response, the Plaintiff explicitly stated that Snyder would not be offering a diagnosis of PTSD based on his imaging findings. Instead, Snyder’s testimony would focus on a more limited and, according to the Plaintiff, qualified area: “whether certain imaging findings are consistent with patterns observed in PTSD-related research,” which is in line with his expertise.
Court’s Observations and Rulings:
The Court emphasized that the Defendant’s motion was filed significantly after the deadline for motions to exclude expert testimony, and no “good cause justification” was provided for the delay.
Additionally, the Court determined that Snyder’s disclosed opinions were sufficient to meet the requirements of Rule 702, which mandates that expert testimony be relevant and reliable.
Qualification
The Court found that Snyder’s CV and deposition testimony demonstrated his qualifications to draw correlations between imagery and other scientific research.
Reliability
The Court deemed Snyder’s opinion regarding the link between PTSD and abnormalities in the hippocampus in peer-reviewed studies as sufficiently reliable and relevant.
The Court clarified that Snyder will be permitted to offer the challenged opinions insofar as he does not seek to make a diagnosis and otherwise testifies consistently with his disclosed findings.
Held
The Court denied the Defendant’s motion to limit the testimony of Travis Snyder.
Key Takeaways:
Timeliness Matters: Motions challenging expert testimony must be filed within designated deadlines.
Rule 702 Gatekeeping: Courts have a duty to ensure expert testimony is relevant and reliable, focusing on qualifications and a sufficient factual basis.
Scope of Expertise: Experts must testify within the bounds of their qualifications and disclosed opinions.
The case centered on a dispute over property ownership in Cuba. The Plaintiff relied on the testimony of Avelino Gonzalez, an expert in Cuban law, to establish their claim. The Defendants, however, challenged the admissibility of Gonzalez’s testimony on multiple grounds.
Law And Legal Expert Witness
Avelino Gonzalez is an attorney with a Summa Cum Laude Bachelor of Law degree from the University of Havana, Cuba, and 35 years of experience in Cuban Law.
The Defendants launched a multi-pronged attack on Gonzalez’s testimony, primarily arguing that:
Improper Use of Expert Opinion
The Defendants claimed the Plaintiff was improperly using Gonzalez’s opinions to establish disputed facts, arguing Gonzalez lacked personal knowledge of those facts.
Reliance on Inadmissible Hearsay
They asserted that Gonzalez relied on inadmissible hearsay, particularly a history book and family member accounts, to form his opinions regarding the Plaintiff’s inheritance claim.
Improper Application of Foreign Law
The Defendants objected to Gonzalez’s ability to opine on the application of Cuban law to the specific facts of the case.
Invasion of the Jury’s Province
They argued that Gonzalez’s testimony would improperly invade the jury’s role in determining factual matters.
Unreliable Facts and Rule 703 Violation
They contested the reliability of Gonzalez’s sources, especially the history book, and argued a violation of Federal Rule of Evidence 703.
The Court’s Observations and Rulings:
The Court, however, rejected the Defendants’ arguments and ruled that Gonzalez’s testimony was admissible. Key points from the Court’s observations include:
Rule 44.1 Flexibility
The Court emphasized the flexibility granted by Federal Rule of Civil Procedure 44.1, which allows courts to consider “any relevant material or source, including testimony,” when determining foreign law.
Broad Scope of Admissible Evidence
The Court noted that Rule 44.1 is not constrained by traditional rules of evidence, such as Rule 703 or limitations on hearsay. Thus foreign law experts can use a wide range of documents and sources.
Court’s Role in Determining Foreign Law
The Court highlighted that determining foreign law is its responsibility, not the jury’s.
Premature Objections
The Court deemed some objections premature, stating that it would address the parameters of Gonzalez’s testimony and the weight to be afforded to his opinions after reviewing the parties’ motions for summary judgment.
Cross-Examination as a Safeguard
The Court acknowledged the Defendants’ right to cross-examine Gonzalez to challenge his testimony and raise objections.
Held
The Court denied the Defendants’ motion to exclude the testimony of Avelino Gonzalez.
Key Takeaway:
This case underscores the unique treatment of expert testimony on foreign law in U.S. courts. Rule 44.1 provides significant flexibility, allowing experts to rely on a broad range of materials and sources. While challenges to such testimony are common, courts prioritize their role in determining foreign law and rely on cross-examination to ensure fairness.
On October 24, 2019, William Harrison Sims (Plaintiff) was driving his 2004 BMW 330Ci (the “Vehicle”) in Florida when another vehicle unexpectedly turned left in front of him, causing a minor accident. As a result of the collision, the Vehicle’s front driver-side airbag was signaled to deploy. However, the airbag inflator unexpectedly ruptured and shot metal shrapnel into Plaintiff’s face and body, leading to severe, permanent, and life-altering injuries.
Defendants, BMW of North America (“BMW NA”) and Bayerische Motoren Werke AG (“BMW AG”), procured and installed the airbag inflator during the process of designing, manufacturing, assembly, and producing the vehicle. Plaintiff filed a lawsuit against both Defendants, alleging strict liability and negligence for procuring and installing the defective airbag.
Plaintiff retained Gordon Horn, a highly credentialed neuropsychologist with considerable clinical experience.
Defendants contended that because Horn is neither a biomechanical engineer nor a biomechanical expert, he is not qualified to offer opinions about the causation of Plaintiff’s traumatic brain injury.
Neuropsychology Expert Witness
Gordon Horn, Ph.D. has been a clinical neuropsychologist since 1996. His education includes a PhD in clinical psychology, and internship and 2-year fellowship completion in neuropsychology and rehabilitation from Duke University, School of Medicine. He has extensive hospital experience beginning in 1989 with inpatient neurological rehabilitation.
Defendants did not question Horn’s qualifications or expertise. Horn issued two expert reports.
First Report
In his first report, Horn documents copious medical records he reviewed as part of Plaintiff’s neuropsychological examination. The patient history portion of Horn’s report is brief, as is the history obtained from Plaintiff’s mother.
Next, Horn documents Plaintiff’s past medical, neurological, developmental, psychiatric, and surgical histories. Horn discusses results covering a range of neurological assessments and impairment ratings.
Horn summarized his clinical summary and impressions after subjecting Plaintiff to a comprehensive battery of tests and examinations. Horn’s findings outline the following neurocognitive impairments: Auditory and Visual Attention (mild impairment; moderate to severe with visual attention); Information Processing (processing mildly impaired, multitasking mildly impaired); Language (mildly impaired complex instruction following); Memory (verbal learning and memory for related words moderately impaired, contextual memory moderately impaired); Visual-perceptual (mild impairment overall, severe impairment with visual discrimination); and Executive functions (mild impairment with complex processing, judgment and reasoning). Horn diagnoses Plaintiff with Depression, Anxiety, and PTSD with pre-existing Attention Deficit Disorder and with exacerbation of cognitive and behavioral impulsivity.
Diagnostic impressions are diffuse traumatic brain injury; frontal lobe and executive function deficit; mild cognitive impairment of uncertain or unknown etiology; adjustment disorder with mixed anxiety and depressed mood; and attention-deficit hyperactivity disorder.
Second Report
Horn issued a second expert report following his re-examination of Plaintiff and after two additional days of testing. Defendants did not appear to take issue with Horn’s methodology or findings outlined in the updated report. Horn’s neurological findings and the deficits attributed to Plaintiff remain unchanged in the 2024 updated report. Defendants filed a motion to exclude “injury causation” testimony of Horn. They did not challenge his neuropsychological testing or the results of those tests.
Defendants’ Objection to Causation Testimony
As for defense counsel’s contention that a neuropsychologist is not qualified to offer opinions on causation, the Court observed that Horn reviewed medical records replete with evidence that Plaintiff was injured by shrapnel from his airbag. Horn noted in his conclusions that the results of the examination were consistent with his injuries noted from the medical notations. The battery of examinations conducted by Horn cause him to opine that Plaintiff’s “neurocognitive profile shows deficits consistent with frontal lobe injury associated with the trauma.”
Defendants also argued that Horn is not qualified to opine that a zygomatic fracture was caused by shrapnel from the admittedly defective inflator because he did not adequately support his opinion that zygomatic fractures result in a 5–10% probability of TBI.
According to the Court, Horn’s opinion that Plaintiff’s frontal lobe injury was caused by trauma is supported by the neurocognitive examination administered by Horn. Horn did not opine that the shrapnel caused the zygomatic fractures documented on the CT scan. Defendants appeared to connect that dot by themselves.
As for the Defendants’ perfunctory argument that Horn’s testimony is cumulative because the Plaintiff has retained a biomechanical engineer and a neurologist, the Court held that Horn is skilled in evaluating and measuring cognitive impairment and in quantifying the damage caused, unlike these experts. Simply put, Horn’s testimony is not cumulative. It forms part of the concentric circles of proof.
Held
The Court denied the Defendants’ motion to preclude injury causation testimony of Gordon Horn.
Key Takeaway:
A neuropsychologist skilled in assessing cognitive impairment secondary to trauma—that is, traumatic brain injury—is qualified to render an opinion that the brain injury was caused by trauma. Moreover, Plaintiff’s personal history—which doctors routinely consider as a part of their evaluation—is not the basis of Horn’s findings.
Rather, the medical records and extensive testing from which Horn identifies Plaintiff’s cognitive impairments and limitations support his opinion.
Please refer to the blogs previously published about this case:
Defendants CooperSurgical, Inc., Femcare, Ltd., and Utah Medical Products, Inc. manufacture and distribute birth control devices called Filshie Clips.
Filshie Clips are 3-5 millimeters wide and are laparoscopically placed on the fallopian tubes. Plaintiffs are individuals who had tubal ligation surgery in 2009 and 2010.
Plaintiffs Giovanna Bulox and Lorena Ahiri Merlo are sisters. Bulox underwent a tubal ligation procedure, choosing Filshie clips on July 13, 2010. Merlo underwent a tubal ligation procedure through the use of Filshie clips on July 21, 2009. Several years later, both sisters allegedly began to experience discomfort and pain.
In 2019, doctors removed two migrated Filshie Clips from Bulox’s body, one in her intestinal wall. Plaintiff Merlo had the same pain several years after her surgery, and in 2020, radiology showed the Filshie Clips migrated in her body. An attempt to remove them laparoscopically was unsuccessful; Merlo still has displaced Filshie Clips in her body. Plaintiffs sued Defendants for: (1) design defect; (2) manufacturing defect; (3) failure to warn; (4) strict liability; (5) negligence; (6) violation of consumer protection laws; (7) gross negligence; and (8) exemplary damages.
Defendants designated Dr. Janesh K. Gupta as a witness to assist their defense but Plaintiffs sought to exclude several of Gupta’s opinions, namely any opinion regarding: (1) Bulox’s medical condition; (2) Merlo’s medical condition; (3) the design and/or manufacture of Filshie Clips; (4) the adequacy of warnings promulgated with Filshie Clips; and (5) FDA regulations or how they apply to Filshie Clips.
Obstetrics and Gynecology Expert Witness
Dr. Janesh Gupta is an Honorary Professor of Obstetrics and Gynaecology at Birmingham Women’s and Children’s Hospital.
Gupta has published over 175 research papers in scientific journals, book chapters, reviews and books and over 100 lectures and presentations to learned societies in the fields of fetal medicine, benign gynaecology (including abnormal uterine bleeding, fibroids, endometriosis, endometrial hyperplasia), minimal access surgery, induction of labour and abortion. He has received grants from WellBeing of Women, Department of Health National Institute for Health Research (Health Technology Assessment), Medical Research Council and various industry partners.
Defendants designated Gupta as a witness to assist their defense because he is “an experienced English OB/GYN who has used the Filshie Clip for decades, has both written and reviewed published literature on the Filshie Clip, specifically on Filshie Clip migration, and has since 2012 served as the independent medical consultant for Femcare Ltd.—reviewing complaints and assisting with risk reviews and other studies of the Filshie Clips.”
The Parties Resolved Several Issues Raised in the Motion
Plaintiffs argued that Gupta is unqualified to testify about: (1) the injuries sustained by Plaintiffs because he never treated or examined Plaintiffs and did not review their medical records; and (2) Defendants’ FDA compliance because he does not practice medicine in the United States and possesses no knowledge of the FDA regulations or manufacturing or developing a medical device. Plaintiffs continued that Gupta’s opinions are unreliable and unhelpful because he is not an FDA expert yet offers opinions regarding what is a “serious injury” and “reportable event” according to FDA standards, and he did not form his opinions according to objective independent methodology.
However, Defendants explained that they did not intend to offer several of the objected-to opinions, making them moot. First, “Gupta did not intend to provide any specific testimony on Plaintiffs.” Second, Gupta provided no opinion on manufacturing or designing Filshie Clips, but rather he discussed how the design “physiologically accomplishes . . . female sterilization and result in migration,” and he also pointed out that Plaintiffs’ expert had no experience in designing medical devices. Based on the Court’s review, the above issues were denied as moot.
Third, Defendants have a separate FDA expert and did not intend to use Gupta as such—instead, Gupta discussed his own review of adverse event complaints as Defendants’ independent medical consultant.
Defendants clarified that “Gupta’s opinions . . . are really about his medical review of adverse event complaints in the context of FDA definitions.” Plaintiffs asserted that this clarification is insufficient because Gupta cannot offer the above testimony without also testifying about Defendants’ FDA compliance. But that is the exact same testimony that they stated that they intended to elicit from him. The Court held that this argument is insufficient for the exclusion of Gupta’s testimony.
Plaintiffs Failed to Carry their Burden To Exclude Gupta’s Testimony
Gupta May Testify About Reviewing Adverse Event Complaints
Plaintiffs argued that Gupta’s opinions regarding his review of reportable events are not backed by any independent methodology and therefore should be excluded. They argued that because Gupta lacked knowledge of the FDA and did not conduct independent research, he “relied only on his subjective interpretation of a definition of ‘serious injury’ provided to him by Femcare to make his determinations regarding serious injuries/reportable events,” which led to inconsistent findings. Plaintiffs also argued that Gupta rejected medical reports and made unfounded assumptions to discount patient reports of migration.
In his report, Gupta gave a detailed overview of his extensive medical experience and experience as a reviewer and of the applicable FDA regulations. Gupta first ascertained whether there was a serious injury in accordance to the regulatory body definitions and then determined whether there is a reasonable suggestion that the product may have caused the injury.
Gupta explained that that long-lasting chronic pain, the most common complaint with Filshie Clip migration, requires additional review due to the complexity of pain in the body, which for him, includes searching for additional physiological evidence in the medical history suggesting that the device caused or contributed to the reported problem. The Court held that Plaintiffs’ arguments are insufficient to exclude Gupta’s testimony as unreliable. Plaintiffs’ arguments largely relate to the bases of Gupta’s review decisions, not the underlying methodology, and are therefore more suitable for cross examination.
Gupta May Testify About Filshie Clip Warnings
Plaintiffs contended that Gupta’s opinions that the Filshie Clip instructions for use (“IFU”) are based on accurate and reliable data is unreliable and unsupported because these opinions are “based on his own erroneous understanding of the language included in the documents and a rate of incidence (0.13%) provided to him by Defendants and not based on any peer-reviewed science or accepted medical principles.”
The parties disagreed on the underlying facts of Gupta’s opinion that the Filshie Clip IFUs are based on accurate and reliable data. Without deciding the correctness of Gupta’s opinion, the Court found that his opinion is reliable: Gupta has extensive experience with implanting Filshie Clips and reviewing the IFUs—his testimony is based on this experience.
Held
The Court denied Plaintiffs’ motion to limit Defendants’ fact and expert witness, Dr. Janesh K. Gupta’s testimony.
Key Takeaways:
Unlike Plaintiffs’ contentions, Gupta has adequate knowledge of the applicable FDA regulations and has educated himself independently of Femcare’s provided material, citing to a wide body of literature in the field of chronic pelvic pain.
Gupta has employed his education and experience as a clinical expert who has implanted Filshie Clips for decades and counseled countless patients on the procedure. He also employs his own research, writing, and review of literature in reviewing the warnings for Filshie Clips to come to a conclusion as to whether they adequately warn of clip migration.
Please refer to the blog previously published about this case:
In early 2015, Plaintiffs, US Thrillrides, LLC (“USTR”) and Polercoaster, LLC began discussions with Defendant, Intamin Amusement Rides Int. Corp. Est. about partnering to build Polercoasters for Plaintiffs’ customers. The “Polercoaster” is “a roller coaster that is supported or suspended from a vertical tower instead of moving along a horizontal track.”
This case arises from a project to build a roller coaster at the Dubai Hills Mall. The developer of the Dubai Project, Emaar Entertainment LLC, originally entered into a Letter of Acceptance (“LOA”) agreement with Plaintiff US Thrillrides LLC (“USTR”) relating to the Dubai Project. However, Emaar ultimately terminated that agreement and contracted with Defendant to build a different roller coaster.
Basically, Plaintiffs filed claim for breach of the Confidentiality Non-Disclosure Agreement (“CNDA”) insofar as it is based on unauthorized use of Plaintiffs’ copyrights by Defendant and Plaintiff Polercoaster LLC’s (“Polercoaster”) copyright infringement claim.
Defendant filed a motion to exclude the testimony of Plaintiffs’ damages expert, Eric Lee while Plaintiff filed a motion to exclude the testimony of Defendant’s expert, Dr. Keith Ugone.
Accounting Expert Witness
Eric Lee is a financial and fraud expert with over 20 years of experience. He is a Certified Fraud Examiner (CFE) and Certified Insolvency and Restructuring Advisor (CIRA) and has a bachelor of science degree in accounting from Arizona State University.
Also, Lee has spent the last 15+ years in litigation, forensic and bankruptcy consulting, including the quantification of complex financial damages, lost profits, class action litigation, fraud investigations, reconstruction of financial records, corporate internal investigations, funds tracing, and other financial analyses.
Dr. Keith R. Ugone has provided economic and damages consulting services in antitrust cases, breach of contract cases, business interruption cases, class action certification matters, employment / loss of earnings cases, intellectual property cases, lender liability cases, professional negligence cases, and securities-related cases, among others.
Moreover, he specializes in the application of economic principles to complex business disputes and generally is retained in cases requiring economic analyses and/or damages-related analyses.
Plaintiffs’ claims are based on the breach of the CNDA due to unauthorized use of copyrights and copyright infringement. Lee’s expert opinions relate to actual damages, which are recoverable for both causes of action.
As is typical with damages expert opinions, Lee assumed that Plaintiffs will prevail on their substantive claims and that Plaintiffs are entitled to an award of actual damages. With those assumptions in place, Lee calculated the amount of damages that he opined would be appropriate.
Basically, Lee calculated two types of damages: (1) lost profits from consulting fees and royalty fees that Plaintiffs would have earned had the LOA not been terminated and their participation in the Dubai Project been completed; and (2) a reasonable royalty for the misappropriation of Plaintiffs’ intellectual property.
Lost Profits
Plaintiffs have not and cannot prove that Defendant caused the termination of the LOA or the end of Plaintiffs’ involvement in the Dubai Project. Multiple representatives involved in the decision to terminate Emaar’s relationship with Plaintiffs made clear that they would have chosen to have no roller coaster at the Dubai Hills Mall before they would have continued their relationship with Plaintiffs.
Therefore, the Court held that Lee’s opinions as to the amount of lost profits—i.e., the unpaid consulting fees and royalty contemplated under the LOA—will be excluded because Plaintiffs are not entitled to an award of such damages.
Reasonable Royalty
Lee’s opinions involve the calculation of a reasonable royalty for all of the intellectual property, confidential information, and trade secrets that Plaintiffs alleged were misappropriated or infringed in this case combined.
However, Lee did not break down the analysis by type of intellectual property or information. As relevant here, Lee’s opinions did not allocate a reasonable royalty to the use of Plaintiffs’ copyrights, specifically.
Without any basis to parse the damages allocated to copyright infringement—as opposed to patents, trade secrets, or confidential information which are no longer at issue—Lee’s opinions would only serve to confuse the jury.
The Court held that Lee’s opinions regarding the reasonable royalty, which do not allocate a royalty based on Plaintiffs’ copyrights specifically, must be excluded.
Keith Ugone
Plaintiffs sought to exclude the expert testimony of Defendant’s expert, Dr. Keith Ugone. As indicated by Defendant, Ugone is purely a rebuttal expert, offering a critique of Lee’s damages opinions. Because Lee’s opinions are being excluded, the Court held that Ugone’s opinions are no longer relevant and will also be excluded.
Held
The Court granted Defendant’s motion to exclude the testimony of Eric Lee.
2. The Court granted Plaintiffs’ motion to exclude Keith Ugone’s Testimony.
Key Takeaway:
To begin with, an expert’s offered opinion and the facts of the case must be an appropriate fit. There is no fit where a large analytical leap must be made between the facts and the opinion.
The Court excluded Lee’s opinions regarding the reasonable royalty because there is simply no “fit” between the facts remaining at issue in this case and the opinions rendered.
Please refer to the blog previously published about this case:
Defendants CooperSurgical, Inc., Femcare, Ltd., and Utah Medical Products, Inc. manufacture and distribute birth control devices called Filshie Clips.
Filshie Clips are 3-5 millimeters wide and are laparoscopically placed on the fallopian tubes. Plaintiffs are individuals who had tubal ligation surgery in 2009 and 2010.
Plaintiffs Giovanna Bulox and Lorena Ahiri Merlo are sisters. Bulox underwent a tubal ligation procedure, choosing Filshie clips on July 13, 2010. Merlo underwent a tubal ligation procedure through the use of Filshie clips on July 21, 2009. Several years later, both sisters allegedly began to experience discomfort and pain.
In 2019, doctors removed two migrated Filshie Clips from Bulox’s body, one in her intestinal wall. Plaintiff Merlo had the same pain several years after her surgery, and in 2020, radiology showed the Filshie Clips migrated in her body. An attempt to remove them laparoscopically was unsuccessful; Merlo still has displaced Filshie Clips in her body. Plaintiffs sued Defendants for: (1) design defect; (2) manufacturing defect; (3) failure to warn; (4) strict liability; (5) negligence; (6) violation of consumer protection laws; (7) gross negligence; and (8) exemplary damages.
Dr. Howard Sharp opined that the Filshie Clip was not the likely cause of Plaintiffs’ pain. Sharp was retained to “offer a differential diagnosis on the complex issue of the medical cause for Plaintiffs’ claimed injuries—in essence pain allegedly caused by a Filshie Clip that migrated.”
Plaintiffs argued that he should not be allowed to testify that factors other than migrated Filshie Clips were the cause of Plaintiffs’ pain because he has “openly acknowledged the absence of any alternative reason, evidence, or cause for the pain and subsequent injuries incurred by Plaintiffs,” and, therefore, they claim his opinion does not meet the standard for reliability.
Obstetrics and Gynecology Expert Witness
Dr. Howard Taylor Sharp is a tenured professor in the Department of Obstetrics and Gynecology at the University of Utah School of Medicine, where he has practiced for over 28 years. He currently serves as the Division Chief of General Obstetrics and Gynecology and Minimally Invasive Gynecological Surgery. Additionally, he is the Vice Chair for Clinical Activities in the department. He completed his residency in obstetrics and gynecology at the University of Utah in 1994, followed by a fellowship in minimally invasive gynecology at the Greater Baltimore Medical Center in Maryland in 1995.
Moreover, Sharp has research interests which include surgical complications, medical device efficacy and complications, and pelvic pain.
Plaintiffs did not question Sharp’s qualifications as an expert, but rather the reliability of his opinion.
Plaintiffs argued that because Sharp did not opine as to “what, other than Filshie Clip migration, caused Plaintiffs’ injuries,” his opinion is based on speculation and conjecture and is not tied directly to the evidence.
Basically, Plaintiffs contended that, by not suggesting a plausible alternative cause, Sharp’s opinion is unreliable, lacking a proper foundation, and could mislead the jury and invite speculation.
However, Sharp examined Plaintiffs’ medical histories and medical records, and reviewed Plaintiffs’ expert materials and materials related to clip migration, including clinical reports. Sharp utilized his years of specialized knowledge as a medical doctor, specifically as an obstetrician and gynecologist familiar with Filshie Clips and human physiology, as the basis of his opinion. The Court held that Sharp satisfies the requirements of Rule 702 and Daubert.
Regardless of whether Sharp’s opinion is correct or not, he has sufficiently articulated a basis for his opinion. That he did not physically examine both Plaintiffs is insufficient to show that his opinion should be excluded as unreliable.
The Court added that Sharp did provide alternative causes, namely, lengthy medical histories from both Plaintiffs containing other potential causes and in Bulox’s case, persistent complaints of pain before clip placement and after removal. The Court held that Plaintiffs’ complained-of deficiencies addressed Sharp’s credibility and not the reliability of his testimony.
Held
The Court denied Plaintiffs’ motion to exclude Dr. Howard Taylor Sharp’s opinion.
Key Takeaway:
Plaintiffs’ motion contains objections to the weight and not admissibility of Sharp’s testimony, which are objections best handled in vigorous cross-examination.
While Plaintiffs contended that Sharp’s opinion could mislead the jury and invite speculation by not suggesting a plausible alternative cause, the Court observed that Sharp examined Plaintiffs’ medical histories and medical records, and reviewed Plaintiffs’ expert materials and materials related to clip migration, including clinical reports. Moreover, Sharp did provide alternative causes, namely, lengthy medical histories from both Plaintiffs containing other potential causes and in Bulox’s case, persistent complaints of pain before clip placement and after removal.
Plaintiff Ansur America Insurance Company (“Ansur”) filed this lawsuit alleging legal malpractice related to a product liability case filed in St. Clair County, Illinois after Defendants, James A. Borland and Quinn, Johnston, Henderson & Pretorous CHTD failed to properly manage the defense of the underlying case, resulting in Ansur being forced to settle for an unsupported and unprecedented amount.
Plaintiff alleged that Defendants did not meet the standard of care in representing Plaintiff in a tripartite relationship, where Plaintiff insured a company that sold the Underlying Plaintiff a shower stool that broke, causing her to fall and dislodge hardware recently placed by a surgeon in her spine.
Defendants disclosed Joseph Bleyer as a legal malpractice expert witness and Daryl Douglas as an insurance expert witness.
Plaintiff filed a motion to exclude the testimony of Defendant’s experts Bleyer and Douglas.
Legal Malpractice Expert Witness
Joseph A. Bleyer is managing partner in the law firm of Bleyer and Bleyer, Marion, Illinois which is a law firm practicing extensively in litigation and defense in tort/negligence claims, constitutional claims of rights and litigation and defense of municipalities in both Illinois and the United States Supreme Court. He graduated from Southern Illinois University in 1986 and is presently licensed in the State of Illinois, United States Supreme Court, United States Court of Appeals for the Seventh Circuit, United States District Court for Central Illinois, and United States District Court for the Southern District of Illinois.
Daryl Douglas spent 20 years as the senior vice president and claims manager at national primary and excess carriers and international reinsurers. During that time, Douglas managed the medical malpractice and general liability exposures for insured hospitals, physicians, and nursing homes, across the country. He counseled insurers and reinsurers on liability and coverage issues, and successfully settled hundreds of catastrophic cases, both before and after trial.
Douglas has built a national reputation handling some of the nation’s largest and most challenging mass actions and achieving highly regarded results along the way.
Plaintiff’s Motion to Exclude the Testimony of Joseph Bleyer
Bleyer is an attorney who has practiced law since 1986. He has never handled a legal malpractice case and has no particular knowledge, experience or training in the area of legal professional responsibility.
While Bleyer has a great deal of legal experience, neither his report nor deposition testimony connect the dots between his generalized legal experience and the bases for his opinions and conclusions in the “often specialized and complex matters of professional responsibility”, including the applicable standard of care.
Moreover, the Court finds that Bleyer’s conclusions and opinions do not meet the Daubert standards for reliability. While Bleyer lists thirteen opinions in his report, his first opinion accurately summarizes the remaining twelve:
“Based upon my experience and my review of the above transcripts and documents, I have formed the opinion, to a reasonable degree of professional certainty, that James Borland and Quinn, Johnston, Henderson & Pretorious Chtd. (collectively, ‘Defendants’) met the standard of care. Defendants did not breach their fiduciary duties required by Illinois attorneys in dealing with both Ansur and Signature.”
The Court held that Bleyer failed to provide a sufficient basis and support for his opinions that the Various Defendants met the standard of care. Although given several opportunities to do so in his deposition, Bleyer failed to identify a measurable standard of care or the source of what he believes the standard of care is. Instead, his opinions are based solely upon his professional judgment, to be applied on a “case-by-case” basis.
Plaintiff’s Motion to Exclude the Testimony of Daryl Douglas
Douglas is a licensed attorney who has had practiced in an insurance claims department and has had various roles in the insurance coverage and defense fields. While Douglas has a both legal and practical experience in the insurance claims industry, as Plaintiff correctly notes, “he simply opines that he would have acted differently, without offering any analysis of ‘how his experience informs his conclusions’ or sufficiently linking ‘his expertise to his opinions’ as Daubert requires.”
The Court held that Douglas defaults to a “case-by-case” analysis instead of a measurable standard of care. For instance, when asked what the standard of care was, he said “I think the standard of care depends upon the liability and exposure and circumstances and facts of each case.” When asked, repeatedly, how he would define a “high exposure” case that would necessitate additional attention from claims managers, he finally said, “there are number of things that create exposure to the insurance company that could result in a future payout, and they are going to be different in each case.”
At bottom, Defendants have failed to meet their burden of demonstrating that Douglas’ proposed testimony is the product of reliable principles and methods. Therefore, the Court finds that his testimony will not assist the jury in understanding the evidence or determining a fact in issue in this case.
Held
The Court granted the Plaintiff’s motion to exclude the testimony of Joseph Bleyer and Daryl Douglas.
Key Takeaways:
When an expert’s opinions are grounded solely on his experience, those opinions must be based on sufficient facts, data, and relevant standards, and must be the product of methodology that is generally accepted in the expert community. Bleyer’s methodology is nothing more than what he would have done under the circumstances presented. He did not cite to or attempt to apply the Rules of Professional Conduct or any other identifiable source for the applicable standard of care in his report or testimony.
Defendants have failed to meet their burden of demonstrating that Douglas’ proposed testimony is the product of reliable principles and methods because Douglas defaults to a “case-by-case” analysis instead of a measurable standard of care.
This case arises from the international kidnapping of then-seven-year-old Isabella Miller Jenkins in September 2009 by her mother Lisa Miller to keep her away from her other mother, Janet Jenkins. Isabella remains missing to this day.
Plaintiff Janet Jenkins, for herself and as next friend of her daughter Isabella Miller-Jenkins, has brought suit against several individuals and organizations, alleging that they kidnapped and conspired to kidnap Isabella. Plaintiffs asserted claims of commission of, and conspiracy to commit, an intentional tort of kidnapping and conspiracy to violate civil rights.
Plaintiff Janet Jenkins filed a motion to exclude the testimony of expert witness Lawrence Daniel.
Software Development Expert Witness
Lawrence Daniel has over 40 years of experience in software development, data recovery, computer and server diagnosis and repair, and network administration. He began performing digital forensics in 2001 and has thousands of hours of experience in this area.
Defendants retained Lawrence Daniel to analyze a phone call placed by Philip Zodhiates to Matthew Staver, the founder and chairman of Defendant Liberty Counsel. The call was allegedly made while Zodhiates was driving back to Virginia after dropping off Lisa Miller and Isabella Miller-Jenkins in Buffalo, New York, prior to their departure from the United States.
To analyze the call, Daniel reviewed records from nTelos and AT&T. The nTelos record indicated a call length of one minute, though Daniel believed the call duration was shorter and that nTelos rounded its call lengths to the nearest minute. The AT&T records reportedly showed that the call was forwarded to voicemail, that no conversation took place, and that the call lasted nine seconds. Daniel was able to determine this after interpreting certain codes in those records. Daniel also called the receiving phone number to confirm the length of the voicemail greeting. He discovered that the greeting itself was 19 seconds and, having been informed by Defendants’ counsel that the voicemail message had not changed since the Zodhiates call in 2009, concluded that Zodhiates ended the call prior to leaving a message.
Plaintiff’s Objections:
Plaintiff argued that Daniel’s opinion is not based on any technical, scientific, or specialized knowledge. Specifically, she contended that Daniel merely called a phone number and reviewed phone records. To the extent that the AT&T records required knowledge of the company’s codes, Daniel applied a records key. Plaintiff argued that the jury will be capable of using that same key.
Plaintiff further argued that Daniel’s conclusion about whether a message was left is speculative. The call was placed in 2009, and Daniel assessed the length of the voicemail greeting in 2024. Although Defendants’ counsel informed Daniel that the voicemail greeting did not change between 2009 and 2024, and Staver has since attested to that fact in an affidavit, Daniel conceded that there is no scientific method for proving that the voicemail was unchanged between 2009 and 2024. Finally, Plaintiff submitted that Daniel’s testimony is irrelevant since fact that there was a call, standing alone, provides circumstantial evidence supporting her conspiracy claim.
Analysis
Reliability of scientific methods is not at issue here. Furthermore, the record suggested that certain phone records will be admitted, that those records will include codes, and that explanation of those codes – even through the use of a key – by a qualified professional is likely to assist the jury.
The Court therefore found that Daniel may testify about his conclusions regarding the content of the relevant phone records. Daniel may also testify about the call to Staver’s voicemail. While a representation by counsel that the voicemail did not change since 2009 would be insufficient at trial, Staver’s subsequent affidavit confirming that fact now supports counsel’s assurance. With respect to relevance, the parties may each argue that the call is either significant or insignificant as evidence of a conspiracy. Whether a message was left may add to, or take away from, the persuasiveness of those arguments. Testimony from Daniel on that question will “assist the trier of fact to understand the evidence.”
Held
The Court denied the Plaintiff’s motion to exclude the proposed testimony of Lawrence Daniel.
Key Takeaway:
To be admissible, expert testimony must both rest on a reliable foundation and be relevant to the task at hand.”
Daniel may testify about his conclusions regarding the content of the relevant phone records. The record suggested that certain phone records will be admitted, that those records will include codes, and that explanation of those codes – even through the use of a key – by a qualified professional is likely to assist the jury.
Case Details:
Case Caption:
Jenkins V. Miller Et Al
Docket Number:
2:12cv184
Court:
United States District Court for the District of Vermont
