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  • Orthopedic Surgery Expert Witness is Qualified to Diagnose Cervicogenic Headaches

    Orthopedic Surgery Expert Witness is Qualified to Diagnose Cervicogenic Headaches

    This is a dispute regarding uninsured motorist (“UIM”) coverage. Perez was a passenger in a car accident on April 18, 2018, and sought coverage for past and future medical expenses arising from this accident under an Allstate insurance policy. Perez intended to rely on the expert opinion of Dr. David Badger at trial.

    The March 2022 report summarized Perez’s medical treatment after the accident, her current symptoms, notes from the in-person examination, and states four diagnoses, with a treatment plan and estimated cumulative cost. Badger also stated, “All diagnoses listed above are due to the motor vehicle accident of 04/28/2018 on a more probable than not basis.”

    The June 2024 report reiterates Perez’s medical treatments since the accident and ends with Badger discussing specific questions, including whether Perez’s current symptoms relate to a preexisting condition, whether Perez suffered permanent injury, and whether and to what extent Perez will need future treatment.

    Perez then attempted to deliver a third “report” to Allstate in the form of a letter attached to an email on November 22, 2024, but the email and attachments were not received by Allstate until January 14, 2025. Allstate moved to exclude portions of Badger’s opinion. 

    Orthopedic Surgery Expert Witness

    David Badger is a board-certified orthopedic surgeon with over thirty-five years’ experience, including treating trauma-related injuries from motor vehicle accidents and a concentration in sports medicine. He has performed over ten thousand rotator cuff surgeries over the course of his thirty-five year career, and has provided expert medical opinion testimony on thirteen previous occasions in other Superior Court cases in Washington.

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

    Discussion by the Court

    Allstate sought to exclude multiple portions of Badger’s opinion. The Court will address each argument in turn.

    Badger May Testify About Perez’s Headaches

    Allstate avers that Badger’s opinion diagnosing Perez with “posttraumatic cervicogenic pain with headaches” should be excluded because Badger is not qualified, and his opinions are not reliable or relevant. 

    Badger identified various examples in his career when he diagnosed or was exposed to patients with cervicogenic headaches. The evidence showed that Badger did not just “believe he can diagnose” cervicogenic headaches, but that he has done so in his practice. 

    While Allstate’s arguments that Badger has not received specialized training or is unaware of certain diagnostic criteria are areas ripe for cross-examination, the Court held that Allstate has not shown that Badger is unqualified to diagnose cervicogenic headaches such that his testimony is inadmissible. 

    Allstate also pointed to conflicting evidence to undermine Badger’s diagnosis, which is proper for cross-examination but does not make Badger’s testimony inadmissible. 

    Lastly, Allstate argued that Badger “provided no information about how he reached [this diagnoses] or what information he relied upon to determine that she had an impaction injury to her greater occipital nerve at the base of her skull.”  However, Badger can “expand or explain information contained in his report during oral testimony.” Thus, while any new opinions would be improper, the Court held that Badger may connect his diagnoses with the facts and assessments provided in his report.

    Badger May Testify About Perez’s Shoulder

    Allstate argued that Badger’s opinion on Perez’s shoulder pain and diagnosis of a right rotator cuff tear should be excluded because it lacks corroborating evidence. Like Allstate’s argument about the reliability of Badger’s opinion on Perez’s headaches, the Court held that the lack of shoulder imaging, other doctors’ corroboration, or fulsome explanation connecting the injury and accident is appropriate for cross-examination, but did not go to admissibility.

    Badger May Testify About Perez’s Pre-Existing Conditions

    Next, Allstate asserted that Badger cannot opine on Perez’s past medical conditions because he did not review any medical records from before the 2018 accident. 

    But Badger’s report included a section entitled “Past Medical History” indicating he obtained some information regarding Perez’s past medical conditions and history. There is some basis for Badger’s opinion. The Court held that whether more reliable or conflicting evidence on any pre-existing conditions exists is a matter appropriate for cross-examination or Allstate’s case-in-chief.

    The Court Limits Badger’s Testimony on the Permanency of Perez’s Injuries

    Badger’s March 2022 report did not state any opinions regarding the permanency of Perez’s injuries or pain. The June 2024 report stated Perez “has not undergone sufficient treatment to determine whether she has permanent injury.”

    Badger’s deposition testimony reiterated this opinion. But during Badger’s deposition, Perez’s counsel attempted to obtain testimony about her ongoing pain and symptoms. Perez then attempted to submit an untimely third expert report in the form of a November 22, 2024 letter stating

    “However, even if she were to undergo some or all of the recommended treatments she will still have some degree of residual symptoms and limitations from her collision related injuries for the remainder of her life. This is on a more probable than not basis, to a reasonable degree of medical certainty.”

    Perez’s efforts to add a new opinion about the permanency of Perez’s injuries to Badger’s report failed when the deposition testimony went beyond, and conflicted, with Badger’s report. The Court held that Badger’s only properly disclosed opinion on the permanency of Perez’s injuries is that he could not opine on the topic.

    Second, the November 2024 letter is untimely, whether sent on November 22, 2024 or January 14, 2025. The deadline to disclose expert reports was July 8, 2024. Perez’s argument that the November 2024 letter was timely because it was delivered on the deadline to complete fact discovery improperly ignores the July 2024 deadline for expert reports. The Court held that Perez did not provide any reason why this untimely disclosure should be accepted.

    Badger May Testify Regarding His Opinion on Perez’s Future Treatment

    Lastly, Allstate argued that Badger’s opinions on Perez’s future treatment were too speculative. Allstate pointed to the lack of imaging, the factors that could impact future treatment, and various other reasons this opinion is uncertain. Again, the Court held that these topics are appropriate for cross-examination and/or rebuttal testimony but did not warrant exclusion.

    Held

    The Court granted in part and denied in part Allstate’s motion to exclude portions of Dr. David Badger’s testimony.

    The Court held that Badger can only testify about his opinions on the permanency of Perez’s injuries that were disclosed in the March and June 2024 reports; any opinion outside those bounds is excluded. The remainder of Allstate’s arguments are denied.

    Key Takeaways:

    • While any new opinions would be improper, Badger may connect his diagnoses with the facts and assessments provided in his report.
    • An expert cannot salvage a deficient report by supplementing it with later deposition testimony.

    Case Details:

    Case Caption: Perez V. Allstate Fire And Casualty Insurance Company
    Docket Number: 2:23cv681
    Court Name: United States District Court, Washington Western
    Order Date: February 25, 2025
  • Mechanical Engineering Expert Witness is not Qualified to Opine as to the Copyright Infringement Analysis Itself

    Mechanical Engineering Expert Witness is not Qualified to Opine as to the Copyright Infringement Analysis Itself

    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 unique attraction that provides a complete roller coaster experience on a very small footprint, unlike traditional roller coasters which require several acres of land.

    On January 15, 2015, the Parties entered into a Confidentiality and Non-Disclosure Agreement (the “CNDA”) to allow them to begin conversations. In the CNDA, Defendant agreed that information about the Polercoaster was protected and agreed not to create products similar to those offered by Plaintiffs, or to enable or cause others to do so. Once the CNDA was executed, Plaintiffs began discussions with Defendant about serving as the manufacturing partner for Polercoasters they were selling to their customers in different parts of the United States. Ultimately, Defendant was chosen to be the manufacturer for the US Projects.

    Later, Plaintiffs executed a letter of acceptance (the “LOA”) with Emaar Entertainment, LLC (“Emaar”) to build a Polercoaster at the Dubai Hills Mall. Unbeknownst to Plaintiffs, Defendant was actively undercutting them, negotiating directly with Emaar and submitting its own bid, in secret, to build the ride without Plaintiffs’ involvement or permission. The result was that Plaintiffs were terminated and Defendant was hired.

    Emaar and Defendant entered into a Letter of Intent, memorializing their agreement to move forward on developing a smaller roller coaster for the Dubai Hills Mall. Ultimately, this roller coaster was built and named the Storm Coaster.

    Plaintiffs alleged that Defendant unlawfully breached the CNDA and is also liable under various Florida and federal laws for wrongfully using Plaintiffs’ intellectual property in connection with the Dubai Project.

    Defendant filed a motion to exclude the expert testimony of Plaintiffs’ expert Nathan Macdonald.

    Mechanical Engineering Expert Witness

    Nathan Macdonald is a registered professional engineer, a certified safety professional, and a certified commercial building inspector. He has a Bachelor of Science degree in mechanical engineering and eleven years of experience working as a mechanical engineering consultant, including experience working on the design, manufacture, and testing of amusement rides. 

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

    Discussion by the Court

    Defendant sought to exclude the following opinions of Plaintiffs’ expert, Nathan Macdonald: (1) designs and drawings created for the Storm Coaster are substantially similar to and incorporate major design features of USTR’s copyrighted materials; and (2) the Storm Coaster design is both similar to the Polercoaster designs developed by USTR and embodies and is derived from Confidential Information and Intellectual Property Rights (as defined by the CNDA) conveyed by USTR to Defendant pursuant to the CNDA.

    Qualifications

    First, Defendant argued that Macdonald is not qualified to opine on any of the issues here because he did not have specific experience with roller coaster design. While Macdonald has not designed a roller coaster, he has has a significant amount of experience related to coasters and the engineering and design work that is involved. Therefore, Macdonald’s experience and training makes him qualified to opine on the mechanics, engineering, and technical design aspects of the roller coasters and drawings at issue here.

    Second, Defendant also challenged Macdonald’s qualifications to opine as to analyzing copyright, trade secret, and misuse of confidential information issues. The Court held that Macdonald is qualified to conduct a technical and engineering comparison between Plaintiffs’ designs and drawings with Defendant’s designs, drawings, and the Storm Coaster. Macdonald is also qualified to testify regarding how confidential information and trade secrets are treated and used within the industry.

    On the other hand, Macdonald is not qualified to opine as to whether information constitutes a trade secret or is confidential information as this is a legal analysis, not a technical one. Nor is he qualified to opine as to whether the copyright “substantial similarity” analysis is satisfied. To be clear, Macdonald could testify that certain aspects of Defendant’s design drawings are similar to certain aspects of Polercoaster’s copyrighted drawings from a technical or engineering standpoint. And Plaintiffs’ attorneys could then use that testimony to argue that the “substantial similarity” analysis for copyright infringement is satisfied. But Macdonald is not qualified to opine as to the copyright infringement analysis itself.

    Methodology

    As to Macdonald’s methodology, Defendant first argued that Macdonald’s copyright opinions must be excluded because Macdonald did not conduct a copyright protectability analysis and because his opinions regarding substantial similarity invade the province of the jury. These issues were addressed in the qualifications analysis—Macdonald is only permitted to testify as to similarities between Defendant’s purportedly infringing drawings and Polercoaster’s copyrighted drawings from a technical and engineering standpoint. He is not permitted to testify as to whether these similarities are protectable under copyright law.

    Defendant also objected to Macdonald’s opinions because they assume that the designs and drawings attributed to Polercoaster actually belong to Polercoaster, and Defendant argues that they do not. This is not an issue with Macdonald’s methodology in comparing the designs. The Court held that the Defendant is free to offer evidence at trial that the drawings do not belong to Polercoaster, but an expert is allowed to offer opinions based on assumptions given to them. 

    Next, Defendant argued that Macdonald’s opinions comparing Polercoaster’s copyrighted works to the as-built Storm Coaster must be excluded because an as-built structure cannot infringe Polercoaster’s copyrights. Polercoaster conceded that Defendant is correct. Additionally, Defendant’s remaining objections to Macdonald’s opinions were rendered moot by the Court because Plaintiffs’ trade secrets and non-copyright-based breach of the CNDA claims failed on the merits.

    Held

    The Court granted in part and denied in part Defendant’s motion to exclude the testimony of Nathan Macdonald.

    Key Takeaway:

    Macdonald is only permitted to testify as to similarities between Defendant’s purportedly infringing drawings and Polercoaster’s copyrighted drawings from a technical and engineering standpoint. He is not permitted to testify as to whether these similarities are protectable under copyright law.

    Case Details:

    Case Caption: US Thrillrides, LLC & Polercoaster, LLC V. Intamin Amusement Rides Int. Corp. Est.
    Docket Number: 6:22cv2338
    Court: United States District Court, Florida Middle
    Order Date: February 19, 2025
  • Automotive Engineering Expert Witness’ Testimony Regarding the Latent Defect in Airbag Inflators Admitted

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

    Plaintiff, William Harrison Sims’ claims arise out of an October 24, 2019, two-vehicle collision involving Plaintiff, who was operating the 2004 BMW (“Subject BMW”). Tameca Harris-Jackson (“Harris-Jackson”) was operating the Hyundai that collided with the Subject BMW. Plaintiff alleges he sustained “severe, permanent, and life-altering injuries” due to the driver-side Takata airbag unexpectedly rupturing and shooting “metal shrapnel into his face and body.”

     Defendants procured and installed the airbag inflator during the process of “designing, manufacturing, assembling, and producing” the vehicle. Plaintiff brought this action for damages against both Defendants BMW of North America (“BMW NA”) and Bayerische Motoren Werke AG (“BMW AG”), alleging strict liability and negligence from procuring and installing the airbag.

    Plaintiff submitted that Mr. Robert C. Lange, BMW’s mechanical engineer, is prepared to opine that he is unaware of any evidence showing the Defendants “could have been aware air bag systems supplied by Takata to BMW AG were defectively designed prior to Takata’s announcement of defect findings beginning in 2014.” 

    Lange will also opine that when the subject 2004 BMW was distributed by BMW NA, “no motor vehicle manufacturer or distributor could have known of the technical research findings regarding the latent defect in Takata air bag inflators because the science was not settled until 2015-2016.”

    He also contended that Takata falsified data provided to vehicle manufacturers through 2015 and failed to correct the false data once the defect was discovered. Plaintiff argued that Lange’s opinions were unsupported and unreliable. 

    Automotive Engineering Expert Witness

    Robert Lange has over 50 years of experience in automotive engineering. He specializes in motor vehicle systems architectures, structures, safety, and public health.  

    Lange has experience in statistical analysis of motor vehicle service performance databases, statistical forecasting and reliability analysis, FMEA and failure mode avoidance methods, collision-related data acquisition and analysis, safety rulemaking, strategy, and the like. 

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

    Discussion by the Court

    The issue is whether Lange’s opinions are based on sufficiently reliable methods and principles. If they are, then Lange’s opinions are undoubtedly helpful to the jury. If his opinions are unsupported ipse dixit, they must be excluded. 

    Lange’s Methodology and Opinions

    Plaintiff contended that BMW knew that the subject vehicle was defective because the airbag inflator used phase-stabilized ammonium nitrate (“PSAN”) as the airbag’s propellant, causing the inflator to rupture when the airbag deployed during the accident. 

    Lange discussed his investigation into the Takata air bag failures. He noted that Honda conducted the first recall of Takata air bag systems for inflator failure in a letter dated November 11, 2008. 

    National Highway Traffic Safety Administration (“NHTSA”) hired Dr. Harold Blomquist to assist in its Takata defect investigation and issued his report in 2015. 

    Documents from the Recall Query revealed that Takata represented to Honda that the ruptures were caused by a “Stokes press” that forms propellant into a wafer, causing the propellant to burn too quickly and rupture the inflator. Accordingly, in 2010, Honda expanded the recall to include the new basis. Between 2010 and 2013, Honda and Takata continued to receive reports of inflator ruptures, and Takata retained consultants to conduct a root cause analysis. 

    Takata’s root cause analysis continued, and in 2014, research pointed to moisture and temperature in high absolute humidity regions as causing an increased propellant burn rate. Lange, however, concluded that “during the inflator development phases, Takata falsified data provided to vehicle manufacturers. When the false data was discovered, Takata failed to correct the false data by informing the manufacturer and correcting the record.”

    Plaintiff’s Objections

    Plaintiff challenged the admissibility of the following opinions offered by Lange:

    75. I am unaware of any evidence showing BMW AG and BMW NA could have been aware air bag systems supplied by Takata to BMW AG were defectively designed prior to Takata’s announcement of defect findings beginning in 2014.

    76. As of the date of distribution of the Subject 2004 BMW 330Ci, by BMW NA, no motor vehicle manufacturer or distributor could have known of the technical research findings regarding the latent defect in Takata air bag inflators. The science was not settled until 2015-2016.

    Plaintiff also challenges the following statement made by Lange:

    “During the inflator development phases, Takata falsified data provided to vehicle manufacturers. When the false data was discovered, Takata failed to correct the false data by informing the manufacturer and correcting the record. Takata’s false dealings with vehicle manufacturers evidently extended into 2015.”

    Plaintiff contended that Lange will confuse the jury if permitted to offer evidence that Takata lied to other vehicle manufacturers without having proof Takata lied to BMW. Moreover, Lange “knows little about the relationship between BMW and the supplier of the defective airbag inflator at issue in this case, Takata.”

    Plaintiff also argued that Lange’s opinion that he is “unaware of any evidence” showing BMW’s knowledge of the defect is not helpful to the jury. Plaintiff asserted that Lange failed to inform himself on the subject matter sufficiently, and his lack of evidence that BMW was aware of the risks attendant to using PSAN does not equate with BMW’s lack of knowledge.

    Ruling

    Lange has extensive experience working at Ford Motor Company, Failure Analysis Associates, and the General Motors Corporation. During his work with Ford, Lange was responsible for vehicle design and remedying safety defects serviced as recall actions. As the Safety Executive with General Motors, Lange oversaw research projects involving air bags, occupant restraint systems, driver assist technology, and other vehicle systems. He also supervised the “Product Investigations” Department and was responsible for identifying potential safety defects and initiating investigations. In other words, the Court held that  Lange possesses the requisite experience to review the data, investigative reports, and shifting root-cause analysis discussed in his report.

    On balance, the Court did not find that Lange’s opinions rest on mere ipse dixit and instead are based on his review of relevant documents showing Takata’s shifting root cause analysis. Takata initially focused on a manufacturing defect before conceding that the defect had broader implications, which was consistent with Takata hiding the ball from BMW. Basing one’s opinions on the Honda recall and subsequent NHTSA investigations to conclude that the science was not settled until the mid-2000s is a sufficiently reliable methodology. Lange’s opinion that BMW NA was not responsible for the defective design of the subject inflator and that BMW was not on notice until around 2015 was supported by these evolving investigations. 

    Held

    The Court denied Plaintiff’s motion to exclude certain opinions of Robert C. Lange.

    Key Takeaway:

    Lange reviewed the data, investigative reports, and shifting root-cause analysis to conclude that Takata falsified data provided to vehicle manufacturers through 2015 and failed to correct the false data once the defect was discovered.

    Case Details:

    Case Caption: Sims V. Bmw Of North America LLC
    Docket Number: 6:22cv1685
    Court: United States District Court, Florida Middle
    Order Date: February 20, 2025

    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

  • Anthropology Expert Witness’ Testimony on Gift-Giving Customs Excluded

    Anthropology Expert Witness’ Testimony on Gift-Giving Customs Excluded

    It all started when a grand jury indicted Senator Robert Menendez (“Menendez”), Nadine Menendez, Wael Hana, Fred Daibes, and Jose Uribe for their roles in a complex scheme to bribe Menendez to take official acts to benefit them and foreign governments in September 2023. After a nine-week trial, a jury found Defendants Menendez, Hana, and Daibes guilty on all counts with which they had been charged. 

    Defendant sought to introduce testimony pursuant to Rule 702 from Christa Salamandra, a professor of anthropology at Lehman College of the City University of New York. Her opinion is on “how Middle Eastern cultures—in particular, the Lebanese and Armenian cultures where Ms. Nadine Menendez’s family has its roots—treat and regard gifts of things of value between friends and business associates.” 

    The question before the Court is whether Salamandra is qualified by “knowledge, skill, experience, training, or education.”

    Anthropology Expert Witness

    Christa Salamandra is a Professor of Anthropology at Lehman College and the Graduate Center, City University of New York, who specializes in Arabic language fictional media. She received a Ph.D. from  the Institute of Social and Cultural Anthropology, University of Oxford, where she also served as Postdoctoral Research Associate. 

    Salamandra served as a Visiting Lecturer in the Department of Anthropology, The School of Oriental and African Studies, University of London; a Fulbright Scholar and Visiting Professor at Lebanese American University in Beirut; a Visiting Fellow at the New Islamic Public Sphere Programme, University of Copenhagen, a visiting Scholar at The Center for Middle East Studies, Lund University; and a Fulbright Scholar and Visiting Scholar at the Department of Mass Communication, American University of Sharjah.

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

    Discussion by the Court

    Salamandra Is Not Qualified to Give the Proffered Expert Testimony

    Defendant’s expert notice states that Salamandra is “an expert in Middle Eastern cultures and has lived, worked, and conducted ethnographic research in Beirut.” Salamandra has co-edited two books, written numerous articles, and given many conference presentations. While the Court is impressed with Salamandra’s credentials, a review of Salamandra’s CV, however, reveals that her scholarship overwhelmingly focuses on popular culture in Syria and specifically, Syrian television.

    Indeed, 10 of her 12 peer-reviewed articles concern either Syria, television, or both. Not a single article, presentation, book, or chapter states that it analyzes or even discusses gift-giving practices and there is no indication that Salamandra has conducted any research of any kind concerning gift-giving in Middle Eastern cultures.

    Since there is no mention of Armenia in Salamandra’s CV and living in Beirut for two years and conducting ethnographic research while there—on an undisclosed topic—is not enough to render her an expert on how Middle Eastern cultures “treat and regard gifts of things of value between friends and business associates,” the Court held that she is not qualified as an expert capable of opining on gift-giving among Lebanese and Armenian cultures—much less on the culture of individuals with Middle Eastern roots who have lived in the United States for decades.

    Salamandra’s Testimony Would Not Help the Jury

    It should be noted that while Nadine Menendez’s grandparents are apparently Armenian and she was born in Lebanon, Menendez left the Middle East when she was approximately 11 or 12 years old. Since the beginning of high school, Menendez has resided in the United States. Thus, at 57 years of age, she has not lived in the Middle East for more than 40 years.

    As for Menendez’s early childhood in Lebanon, the Court held that there is no evidence that Salamandra’s testimony would account for the fact that Defendant has not lived in the region for most of her life (were these even to be topics within her expertise). 

    In other words, no sufficient link has been established between Menendez’s early childhood in Lebanon and her state of mind when she received gold bars and other high-value items some 40 years later.

    The defense proffered that Salamandra will testify that “a gift is an expression of affection, affinity, and respect,” that “part of what makes a gift a gift is that, while some form of reciprocity is expected, it cannot be immediate or in kind,” and that “a gift often is intended to foster trust and good will.” However, these concepts regarding gifts and gift-giving are well within the ken of the average juror.

    The Court held that even if her testimony were otherwise admissible, Salamandra may not define or opine on legal terms for the jury. Specifically, Salamandra would not be permitted to testify that “a gift . . . does not necessarily connote a ‘quid pro quo,’” as her counsel proposes. That is a legal term and far beyond the bounds of proper expert testimony.

    Defendant’s Expert Notice Pursuant To Federal Rule Of Criminal Procedure 16 Is Deficient

    Federal Rule of Criminal Procedure 16  requires a Defendant to disclose, inter alia, “the bases and reasons” for “all opinions that the Defendant will elicit from the [expert] witness.”

    Here, Defendant’s expert notice under Rule 16 stated simply that Salamandra “is an expert in Middle Eastern cultures and has lived, worked, and conducted ethnographic research in Beirut” and then proceeded to list the conclusions Salamandra drew from that experience.

    This notice failed to explain “how Salamandra came to these conclusions.” In response to the government’s motion, Defendant contended that “cultural opinions,” unlike scientific expert testimony, are purely “observational.”

    Even assuming that to be true, the notice did not identify what observations Salamandra has made that inform or otherwise support her proffered testimony and what those observations are based on. The Court held that Salamandra’s CV did not explain how her research and professional experience led her to her proffered opinions concerning gift-giving. 

    Salamandra’s Testimony is Precluded Pursuant to Federal Rule of Evidence 403

    There is essentially no probative value to Salamandra’s testimony concerning gift-giving in Middle Eastern cultures. Menendez and her family settled in the United States more than 40 years ago; her proposed expert has demonstrated no expertise in Lebanese or Armenian culture in the diaspora; and the defense has offered no evidence that defendant herself actually subscribes to the gift-giving customs about which Salamandra has proposed to testify.

    Under Rule 403, the Court also weighs the risk that this evidence would confuse or mislead the jury, waste time and lengthen the trial, and be cumulative of any lay witness testimony on this issue. Accordingly, the Court precludes Salamandra’s testimony under Rule 403 because the low probative value of her testimony would be substantially outweighed by a danger of confusing or misleading the jury, wasting time and lengthening the trial, and needlessly presenting cumulative evidence.

    Held

    The Court granted the government’s motion in limine and precluded the testimony of Christa Salamandra pursuant to Federal Rules of Evidence 702 and 403 and Federal Rule of Criminal Procedure 16.

    Key Takeaway:

    Christa Salamandra has demonstrated no expertise in Lebanese or Armenian culture in the diaspora. Despite her early childhood in Lebanon, Menendez and her family settled in the United States more than 40 years ago. Salamandra’s CV did not explain how her research and professional experience led her to her proffered opinions concerning gift-giving. Moreover, the defense has offered no evidence that Menendez herself actually subscribes to the gift-giving customs about which Salamandra has proposed to testify.

    Case Details:

    Case Caption: United States V. Menendez
    Docket Number: 1:23cr490
    Court: United States District Court, New York Southern
    Order Date: February 19, 2025
  • Alternative Damages Calculation Included in the Fraud Investigation Expert Witness’ Supplemental Report Excluded

    Alternative Damages Calculation Included in the Fraud Investigation Expert Witness’ Supplemental Report Excluded

    Plaintiff Aaron Edwards filed this lawsuit against his former employer,
    Defendant First Trust, alleging that he was terminated in retaliation for engaging in purported whistleblowing activities. He asserted claims under the anti-retaliation and whistleblower protection provisions provide under the Sarbanes-Oxley Act (“SOX”), the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”), and the Consumer Financial Protection Act (“CFPA”).

    Michael Spindler is Plaintiff Aaron Edwards’ retained damages expert. He
    was designated on August 22, 2024, and produced his expert report on October 3, 2024 (the “Original Report”), which was the deadline for Edwards to serve his expert reports.

    The Court set a November 14, 2024, deadline for the parties to complete
    discovery. And this case is set for trial on February 24, 2025.

    In his original report, Spindler opined that Edwards was entitled to
    $5,920,897 in lost earnings (after subtracting the value of his mitigating earnings). Spindler forecasted the value of Edwards’ lost earnings
    through his projected retirement at age 67 using a “conservative” compound annual growth rate (“CAGR”) of one percent.

    Edwards provided First Trust with an addendum to Spindler’s original
    report for mediation purposes on October 25, 2024 (the “Mediation Report”). In his Mediation Report, Spindler opined that Edwards was entitled
    to $15,133,349 using a 7.6 percent CAGR.

    First Trust timely served its rebuttal expert report on November 13, 2024.

    On February 11, 2025, Edwards produced Spindler’s supplemental report.
    The supplemental report provided an “alternative damages calculation,” which opined that Edwards is entitled to $11,052,917 using a 5.4 percent CAGR.

    First Trust filed a motion to strike Spindler’s supplemental report as untimely under Federal Rules of Civil Procedure 26 and 37.

    Fraud Investigation Expert Witness

    Michael Spindler  is a CPA and Certified Fraud Examiner who brings over 40 years of experience to complex disputes including matters related to forensic accounting and business fraud investigations across a wide range of industries. He has provided expert testimony on dozens of occasions in bench trials, jury trials and arbitration proceedings. He has provided Foreign Corrupt Practices Act investigations and training services in various countries around the world, including China, Russia, India and Saudi Arabia.

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

    Discussion by the Court

    Supplemental Report

    Specifically, First Trust objected to Spindler’s opinion regarding Edwards’ alleged entitlement to monies from First Trust’s discretionary bonus program known as the “Jerries Bonus,” which served as a basis for applying a 5.4 percent CAGR to calculate Edwards’ lost earnings of $11,052,917 (after subtracting the value of his mitigating earnings).

    Spindler’s original report opined that Edwards was entitled to $5,920,897 using a CAGR of one percent. Edwards contended that the methodology applied in the original report and supplemental report was the same. And, Edwards said, “for all practical purposes, the only difference in the damages calculation set forth in the original report and the alternative damages calculation set forth in the supplemental report is changing one number (i.e., the CAGR percentage) in the same equation.”

    However, the Court disagreed with this characterization of Spindler’s supplemental report. Moreover, Edwards’ distinction between a “methodology” and “calculation” in attempting to justify the contents of his supplemental report was not persuasive.

    The result is materially different, regardless of how CAGR is classified, considering that the increase in CAGR from one to 5.4 percent almost doubles Spindler’s damages approximation in his original report. And Edwards did not point to any newly produced information that Spindler relied on to develop his supplemental report calculation. And, so, Spindler’s supplemental report consisted of an untimely expert opinion that is based on information available before the deadline for expert disclosures and that departs from his original report in material respects.

    Basically, Edwards offers no explanation regarding the timing of his supplemental disclosure – less than two weeks before the start of trial. But he contended that First Trust is not prejudiced by the supplemental report.

    Mediation Report

    Edwards asserts that any alleged surprise or prejudice was belied by Spindler’s mediation report, which was provided to First Trust on October 24, 2024, before First Trust’s rebuttal expert disclosed his report.

    In his mediation report, Spindler opined that Edwards was entitled to
    $15,133,349 using a 7.6 percent CAGR. And, so, Edwards asserted that “First Trust and its rebuttal expert knew Spindler developed an alternative damages calculation using a higher CAGR percentage months ago.”

    The mediation report may have provided First Trust with notice of Edwards’ intent to use a greater CAGR percentage to calculate damages. But, when Edwards did not timely supplement Spindler’s expert report for Rule 26 purposes, First Trust had reason to believe that Edwards would not rely on this “alternative damages calculation” for trial. Also, Edwards himself characterized the mediation report as “for mediation purposes only.”

    And he further admitted that the CAGR used in the supplemental report (5.4%) lies between the original report (1%) and the mediation report (7.6%).

    Therefore, the Court is not persuaded by Edwards’ argument that the “alternative damages calculation” disclosed in the mediation report – prepared only for mediation – absolves him of his failure to timely disclose the Supplemental Report.

    And, even insofar as First Trust provided the mediation report to its rebuttal expert, it would still be prejudicial to allow a new damages calculation two weeks before the start of trial.

    As noted above, the Court is not persuaded by Edwards’ argument that the supplemental report uses the same “methodology” generally – especially because the “methodology” involving a higher CAGR is based on the mediation-only report of several months ago. Edwards could have disclosed the supplemental expert report for purposes of trial at that time but did not.

    Held

    In conclusion, the Court granted Defendant First Trust’s motion to strike the supplemental report of Plaintiff’s retained expert Michael Spindler.

    Key Takeaway:

    Even if an allegedly supplemental report is untimely, to assess whether to permit testimony based on an untimely supplemental expert report, the Court, in exercising its discretion, considers (1) the explanation for making the supplemental disclosure at the time it is made; (2) the importance of the supplemental information to the proposed testimony of the expert, and the expert’s importance to the litigation; (3) potential prejudice to an opposing party; and (4) the availability of a continuance to mitigate any prejudice.

    However, Edwards offers no explanation regarding the timing of his supplemental disclosure – less than two weeks before the start of trial.

    Case Details:

    Case Caption: Edwards V. First Trust Portfolios L.P.
    Docket Number: 3:23cv2239
    Court: United States District Court, Texas Northern
    Order Date: February 18, 2025

     

  • Accounting Expert Witness Reliably Concludes That There Is No Common Value Ascribed to Points Universally

    Accounting Expert Witness Reliably Concludes That There Is No Common Value Ascribed to Points Universally

    Plaintiffs, Angelique L. Lingard and Sudarien D. Smith brought this proposed consumer class action on behalf of themselves and other military servicemembers who are similarly situated against Defendants Holiday Inn Club Vacations, Inc. f/k/a Orange Lake Country Club, Inc. (“HICV”) for alleged violations of the Military Lending Act.

    Plaintiffs and the proposed class members purchased timeshare interests from Defendants. Defendants are in the business of selling timeshare plans to consumers throughout the United States. These plans give their owners’ points, which allow them to stay at Holiday Inn Club Vacation Resorts throughout the United States, stay at out-of-network resorts around the world, and buy airline tickets, cruises, rental cars, and other vacation services. Plaintiffs alleged that Defendants’ timeshare contracts violate the MLA. Specifically, Plaintiffs alleged that their and proposed class members’ contracts contain mandatory arbitration, class action waiver, and jury trial waiver provisions in violation of the Act. For these alleged violations, Plaintiffs, on behalf of themselves and the class, sought an order declaring the contracts void from inception and awarding actual damages.

    Motion for Class Certification

    Pursuant to Federal Rules of Civil Procedure 23, Plaintiffs moved to certify the following class and subclass:

    MLA Class: All persons who have entered into Timeshare Purchase Agreements to purchase one or more timeshare interests in the Orange Lake Revocable Trust, in substantially the same form as Exhibit C, after February 24, 2018[,] and who were identified as an active duty servicemember or a dependent within a [Department of Defense (DoD)] Man[p]ower database on the contract date. Default Subclass: All members of the MLA Class whose accounts are or were delinquent as evidenced by [Holiday Inn Club Vacations (HICV)] imposing a “use restriction” on their timeshare interest for nonpayment.

    Defendants relied on the report of its expert, Paul Habibi, in its response in opposition to Plaintiffs’ motion for class certification. In rebuttal to Defendants’ expert, Plaintiffs disclosed Dr. Christopher Young and sought to rely upon his report to refute Habibi’s report. The parties sought to exclude each other’s proposed experts.

    Economics Expert Witness

    Christopher Young, Ph.D., MBA, MAFF, CVA is a professor of business ethics in the Department of Management and Global Business and a research fellow at Rutgers’ Institute for Ethical Leadership. His research focus is in the area of forensic economics, legal and business ethics. He holds a Ph.D. and M.B.A. in global political economy, finance, and accounting from Rutgers University.

    Young is a nationally recognized testifying expert and writer in the field of economics, finance and business ethics. He has testified in state and federal courts, with respect to economics, financial policy, and business ethics matters. He has been invited to speak at many government and industry trade organizations. In addition to his academic career, Young has more than twenty-five years of experience in corporate finance, strategy, business ethics, and economic analysis. Outside of the University, he manages various research and consulting projects through his company, Red Maple Economics.

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

    Accounting Expert Witness

    Paul Habibi is the owner of a real estate expert services firm. He is also a senior continuing lecturer at the University of California Los Angeles Schools of Management and Law, where he teaches in the areas of real estate, finance, and accounting. He holds a Master of Business Administration and is a licensed realtor, broker, and certified public accountant. Habibi teaches a course on timeshares for the MBA program at UCLA. He also teaches a course on business skills for lawyers, which covers business valuations and economic damages. 

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

    Discussion by the Court

    Christopher Young

    A full Daubert analysis is only required at the class certification stage “when an expert’s report or testimony is critical to class certification.”

    The Court held that Young’s report is not critical to the its determination of whether to certify the proposed class because Plaintiffs have not heavily relied upon it for class certification. Indeed, Plaintiffs only refer to Young’s report in one sentence related to the manageability requirement for class certification under Federal Rule of Civil Procedure 23(b)(3)(D).

    Plaintiffs sought to rely upon Young’s report to rebut Defendants’ expert’s opinion on the issue of class certification. Defendants have moved to exclude Young’s report on two grounds. Defendants contended that Young’s report was untimely disclosed and lacked reliability under Daubert.

    Late Disclosure

    The case management and scheduling order expressly stated that Plaintiffs’ deadline for disclosing class action expert reports was March 26, 2024. According to Defendants, Plaintiffs did not identify any expert or serve any expert report on that date. Instead, Defendants asserted that Plaintiffs disclosed Young’s identity and report on May 28, 2024, the day that class discovery closed. 

    The crux of Young’s opinion is that a common methodology can be used to estimate the offset owed to Holiday Inn from the proposed class members who used their timeshare points. 

    Although Plaintiffs recited the substantially justified or harmless standard under Rule 37, the Court held that they did not make any argument in support of their position. Rather, Plaintiffs explained that Young’s expert report was timely provided as a rebuttal expert report. The Court has rejected that argument. Plaintiffs have, therefore, failed to meet their burden of showing that their late disclosure was substantially justified or harmless.

    Defendants maintained that they were prejudiced because Plaintiffs disclosed Young on the day class discovery closed. Although Defendants deposed Young after the Court granted an extension to the class discovery deadline solely for this to occur, Defendants asserted there is still unfair prejudice because many topics could not be fully explored at the deposition.

    Given the prejudice caused by the untimely disclosure, the inability to cure the prejudice at the deposition, and the fact that the trial is only months away, the Court decided that Young’s opinion will be excluded.

    Reliability

    The Court held that Young’s report is full of limitations because he has not tested the theories he asks the Court to accept. For example, he opines that the market approach methodology “can be used” to estimate the offset due to Holiday Inn.

    According to Young, this approach entails evaluating the following market observations to determine the value of the Holiday Inn points: (1) the purchase of points by the issuer, (2) the purchase of points in order to complete a transaction, (3) the sale of points in secondary markets, and (4) the redemption of points for items such as holiday stays, cruises, and car rentals, versus the cost of purchasing them. Young did not analyze these observations to make any calculations because he was not provided with this data, and he speculates as to whether Holiday Inn maintains this data. 

    In his report, Young offered only methods unapplied to this case that might determine the value of potential class members’ Holiday Inn points. According to the Court, this unapplied and speculative methodology did not support that a reliable class-wide damages methodology existed.

    Paul Habibi

    Defendants heavily relied on Habibi’s report to oppose Plaintiff’s motion for class certification. Specifically, they referred to the report to challenge Plaintiffs’ assertion that the issues in the proposed class action that are subject to generalized proof predominate over the damages issue subject to individualized proof. Plaintiffs challenged the admissibility of Habibi’s report under Daubert. 

    Habibi provided three opinions based on his training and experience: (1) Plaintiffs and proposed class members acquired unique and variable timeshare interests in different structures with different use rights, financing terms, and financing disclosures before and during the Proposed Class Period; (2) any negative impact on Plaintiffs’ and proposed class members’ credit scores, ability to obtain financing, and professional careers in the military cannot be reliably assessed using a common approach across the entire class; and (3) the remedies sought by Plaintiffs would require an individualized analysis of each proposed class member’s respective purchase, interest, and use history. 

    Qualifications

    Plaintiffs asserted that Habibi is not qualified to render an opinion in this matter because his curriculum vitae does not refer to expertise in timeshares or economics or valuing non-traditional property interests such as timeshare vacation points.

    However, the Court disagreed. Habibi’s extensive educational background and experience qualify him to provide expert testimony in this matter.

    Relevance and Helpfulness

    Plaintiffs maintained that Habibi’s first opinion is irrelevant and unhelpful because Plaintiffs’ proposed class definition is now limited to servicemembers who purchased one type of timeshare interest, an interest in the Orange Lake Revocable Trust. Initially, in the operative complaint, Plaintiffs’ proposed class definition was not limited to one type of timeshare interest and sought to include “all covered borrowers who financed a timeshare from Holiday Inn.” 

    Plaintiffs have the burden of showing that rescission is feasible and equitable on a class-wide basis based on the facts of the case. 

    According to Habibi, Plaintiffs have offered no way to determine, on a class-wide basis, the type of timeshare interest purchased by each proposed class member and the use rights of each proposed class member.

    The Court held that Habibi’s first opinion is relevant to the predominance class certification analysis because the parties dispute whether actual damages can be easily calculated for all class members. 

    Plaintiffs contended that Habibi’s second opinion is also irrelevant and unhelpful because Plaintiffs did not seek damages for the harms described in the opinion.

    The Court held that Habibi’s second opinion is relevant to the predominance class certification analysis because Defendants challenge whether determining standing for each proposed class member will predominate over issues subject to generalized proof. 

    As for Habibi’s third opinion, Plaintiffs maintained that it is irrelevant and unhelpful because Defendants failed to plead set-off as an affirmative defense.  The Court found this argument unpersuasive because Habibi opined concerning Plaintiffs’ ability to establish a class-wide damages methodology, which they bore the burden of proving during the class certification stage and at trial. 

    The Court held that Habibi’s third opinion is relevant to the Court’s predominance class certification analysis since the parties dispute whether actual damages can be easily calculated for all class members.

    Reliability

    Plaintiffs argued that Habibi should have reviewed the third-party contracts that Holiday Inn had with other companies. 

    According to Plaintiffs, such a review would help determine a dollar value of points redeemed by class members for services provided by these third parties, which would help calculate the potential setoff for class members.

    The Court found that Habibi analyzed the timeshare points usage history data of 300 proposed class members. Based on his analysis, Habibi determined the following: (1) 39% of the proposed class members redeemed all of their timeshare points to stay at another Holiday Inn resort, and (2) for the proposed class members who redeemed their points for external stays or outside services, the average class member used 26.9% of their total timeshare points towards outside services.

    The Court held that Habibi’s analysis supported his conclusion that proposed class members have redeemed their points in various ways at different times such that there is no common value ascribed to points universally that could be used as a basis to ascribe a specific dollar value to the points on a class-wide basis.

    Further, as mentioned above, Plaintiffs bore the burden of establishing that calculating damages on a class-wide basis predominates over issues subject to individualized proof. Defendants only offered Habibi’s testimony to rebut Plaintiffs’ assertion they have met their burden on this issue. Habibi’s nonscientific opinion about whether there is a common methodology that can be used to determine the value of the points redeemed by the proposed class members is reliable based on his training and experience, and the Court has already found this testimony to be relevant and helpful to the Court’s predominance class certification analysis.

    Held

    1. The Court denied Plaintiffs’ motion in limine to exclude the report and testimony of Paul Habibi.

    2. The Court granted Defendants’ motion to exclude the opinions of Plaintiffs’ proposed expert Christopher Young.

    3. The Court denied Plaintiffs’ motion to certify class. On or before March 14, 2025, Plaintiffs shall file a third amended complaint which omits class action allegations.

    Key Takeaways:

    • Young’s report is full of limitations because he has not tested the theories he asked the Court to accept. 
    • So long as the expert is minimally qualified, objections to the level of the expert’s expertise go to credibility and weight, not admissibility.
    • The fact that some of their contracts with their third-party vendors may provide some mechanism for reimbursement in dollars did not render unreliable Habibi’s opinion that there is no common approach that can be used to value the redeemed points of the proposed class members.

    Case Details:

    Case Caption: Lingard Et Al V. Holiday Inn Club Vacations, Inc. Et Al
    Docket Number: 6:23cv323
    Court: United States District Court, Florida Middle
    Order Date: February 14, 2025
  • Law Enforcement Expert Witness Cannot Opine on the Duties of Railway Police Officers in Idaho

    Law Enforcement Expert Witness Cannot Opine on the Duties of Railway Police Officers in Idaho

    On February 28, 2022, Adam Bennett stole a ride on a BNSF railcar in Kootenai County. BNSF Special Agent Daniel Mattson intercepted him and was informed by police dispatch—erroneously—that he had a warrant for his arrest in Washington but not Idaho. Based on this information, and COVID procedures governing misdemeanor arrests, Agent Mattson released Bennett with a citation for trespass and stealing a ride.

    Roughly two hours later, Bennett murdered Dennis Rogers after setting fire to his barn. Plaintiff John Hazell, who was driving by, saw the fire and rushed to provide aid. Bennett shot Hazell and seriously injured him. Bennett is now serving a life sentence.

    Hazell and his minor daughter, C.H., brought this lawsuit against BNSF Railway Company based on the failure to initially arrest Bennett. They asserted claims for negligence, negligence per se, loss of consortium, and intentional infliction of emotional distress.

    BNSF provided a  a declaration and report from Jonathan Brandel, a former Kootenai County Sheriff Sergeant, about Agent Mattson’s legal duties and authority as a railway police officer. Plaintiffs filed a motion to strike that testimony, arguing that it constituted improper legal opinion and unfounded speculation.

    Law Enforcement Expert Witness

    Jonathan Brandel has 28 years of law enforcement experience, including marine law enforcement, patrol, narcotics, undercover investigations, as well as field training and supervision, and certified instructor in numerous law enforcement disciplines.

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

    Discussion by the Court

    Sergeant Brandel’s Opinions on the Authority and Duties of Railway Police Officers in Idaho

    Sergeant Brandel opined on the authority and duties of railway police officers in Idaho. This, as BNSF itself points out, is a question of law concerning the intersection between state and federal statutes. Interpreting those statutes is the province of the Court and clearly not a proper subject for an expert declaration. 

    BNSF suggested that it is “axiomatic that the most appropriate person to speak on the topics of law enforcement is a law enforcement officer.” This is a gross oversimplification of the rules on expert testimony. The Court could not allow a police officer to testify on the legal contours of the Fourth Amendment, even though the officer must know and implement those principles. Likewise, although the Court appreciates Sergeant Brandel’s experience, it is not appropriate for him to testify about the meaning of the statutes governing railway police officers.

    Accordingly, the Court struck the portions of Sergeant Brandel’s declaration and report that involved legal conclusions about Agent Mattson’s duties and authority.

    Sergeant Brandel’s Analysis of the Interaction between Agent Mattson and Bennett

    The remaining sections primarily concern Sergeant Brandel’s analysis of the interaction between Agent Mattson and Bennett. Here, the expert testimony performs its designed function: elucidating and explaining facts. For example, paragraph E of the report explains the practical significance of a law enforcement note that Bennett had violent tendencies, and paragraph F discusses COVID-era arrest practices. These opinions are properly based on Sergeant Brandel’s professional experience and his study of the record of this case. Accordingly, the remaining portions of the report are admissible.

    Finally, Plaintiffs argue that Sergeant Brandel’s declaration should be excluded as untimely. Though BNSF timely disclosed Sergeant Brandel’s identity and expert report, Plaintiffs say that the declaration contains testimony beyond the matters addressed in the report. To the extent that this argument might have had merit, the Court held that those concerns are addressed by striking the portions of the declaration and report described above.

    Held

    The Court granted in part and denied in part the Plaintiffs’ motion to strike and exclude the Defendants’ expert, Jonathan Brandel 

    Key Takeaway:

    Sergeant Brandel was not allowed to testify about the meaning of the statutes governing railway police officers. The Court could not allow a police officer to testify on the legal contours of the Fourth Amendment, even though the officer must know and implement those principles.

    Case Details:

    Case Caption: Hazell V. BNSF Railway Company
    Docket Number: 2:23cv474
    Court: United States District Court, Idaho
    Order Date: February 14, 2025
  • Computer Science Expert Witness’ Testimony About the Disclosure of App Users’ Email Addresses Admitted

    Computer Science Expert Witness’ Testimony About the Disclosure of App Users’ Email Addresses Admitted

    In this putative class action, Plaintiff Charles Therrien claimed that Defendant Hearst Television, Inc. (HTV or Hearst), unlawfully disclosed his personally identifiable information – including a record of every video he had viewed on Hearst’s Apps – to two third parties, Braze and Google, in violation of the Video Privacy Protection Act.

    HTV argued that its news and weather apps share only specific data with its vendors, Braze and Google Ad Manager (“GAM”), limited by each user’s
    permissions. None of those data points identify a specific person as having requested a specific, prerecorded video. HTV’s separate video identifier value is never shared. Nor is there any evidence that HTV knew that the data it did share could identify a user, let alone connect a user to specific video content, as required to be deemed personally identifying information under the Video Privacy Protection Act.

    Hearst filed a motion to strike the expert testimony of Dr. Narseo Vallina-Rodriguez for all purposes pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Hearst also moved to strike the allegedly untimely expert report of Dr. Jason Polakis.

    Computer Science Expert Witnesses

    Narseo Vallina-Rodriguez has considerable experience in the fields of mobile platforms and application analysis, computer network analysis and measurement, and mobile privacy and security risks. His 15-year career in these fields includes his work at the International Computer Science Institute at University of California, Berkeley, analyzing mobile applications’ privacy and security practices, and his work at AppCensus Inc., analyzing Android users’ geolocation data and unique identifiers – along with his education – which includes a M.Sc. in Telecommunications Engineering from the University of Ovideo and a PhD in Computer Science from the University of Cambridge.

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

    Jason Polakis has focused on understanding the security and privacy limitations of Internet technologies and mobile systems, and designing fully automated auditing frameworks and robust defenses. His work has revealed significant flaws in popular web services and browsers, and major vendors have deployed his proposed defenses, leading to concrete security and privacy benefits for billions of users.

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

    Discussion by the Court

    In Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998), it was held that “Daubert does not require that a party who proffers expert testimony carry the burden of proving to the judge that the expert’s assessment of the situation is correct . . . . In short, Daubert neither requires nor empowers trial courts to determine which of several competing theories has the best provenance. It demands only that the proponent of the evidence show that the expert’s conclusion has been arrived at in a scientifically sound and methodologically reliable fashion.”

    Narseo Vallina-Rodriguez

    To begin with, Hearst argued that Vallina-Rodriguez’s testimony should be stricken as it is based on an unreliable methodology.

    In forming his opinion that the disclosure of App users’ email addresses, geolocation, and AAIDs (Mobile Advertising IDs) was reasonably and foreseeably likely to reveal their identities to Braze and Google, the Court held that Vallina-Rodriguez relied on a systematic literature survey of various peer-reviewed empirical studies that include data aggregations similar to those in this case, e.g., timestamped geolocation data points collected by GPS sensors on cell phones.

    The idea that individuals are likely to be identified and de-anonymized by cross-referencing external data sources against frequented locations is a conclusion accepted within the data privacy research community.

    Although, as HTV points out, Vallina-Rodriguez has not conducted an empirical analysis involving Therrien personally, he was given access to only a single datapoint, which was the last known geolocation coordinate of Therrien. Moreover, Vallina-Rodriguez did not analyze the 78 points of geolocation data for former named Plaintiff Michele Saunders because he was not attempting to identify her.

    The Court held that Hearst’s challenges to Vallina-Rodriguez’s testimony, at best, addressed the weight of the evidence as opposed to its admissibility. To the extent Vallina-Rodriguez’s opinions constitute legal conclusions or are based on insufficient anecdotal evidence, they may be subject to a proper motion in limine or appropriate objection at trial. 

    Jason Polakis

    When considering whether to strike an untimely expert report, the Court may consider various factors: (1) the history of the litigation; (2) the sanctioned party’s need for the precluded evidence; (3) the sanctioned party’s justification (or lack of one) for its late disclosure; (4) the opponent-party’s ability to overcome the late disclosure’s adverse effects (e.g., the surprise and prejudice associated with the late disclosure); and (5) the late disclosure’s impact on the district court’s docket.

    On Friday, December 6, 2024 at 5:31 pm, Plaintiffs’ counsel emailed Hearst’s counsel an expert report from Polakis, who had not previously been identified by the Plaintiff.

    The scheduling order entered by the Court in this case made it clear, as recently as May 0f 2024, that Plaintiff’s expert reports were due on October 18, 2024, and that all expert discovery was to be completed by December 6, 2024. 

    However, Therrien failed to disclose Polakis or his expert report within this Court’s discovery deadlines and offered no reason as to why he could not have identified him earlier and provided his report in a timely manner. In other words, the Court did not accept Therrien’s lame characterization of the report as a “rebuttal” and made particular note of the fact that there was no effort on Plaintiff’s part to seek an amendment extending the Court’s discovery schedule and its deadlines. 

    Moreover, Rule 26 provides a schedule for a rebuttal report only in the absence of a scheduling order (which is not the case here).

    In conclusion, to permit Therrien to ambush the Defendant with a previously undisclosed expert report of a previously unidentified witness would “undermine the purpose of setting deadlines for expert disclosures; those deadlines must have some force if the courts are to be able to manage their dockets in any meaningful way.” 

    Held

    The Court denied Hearst’s motion to strike the testimony of Dr. Narseo Vallina-Rodriguez but allowed the motion to strike the report of Dr. Jason Polakis.

    Key Takeaway:

    • Vallina-Rodriguez’s testimony was based on a reliable methodology because he relied on a systematic literature survey of various peer-reviewed empirical studies that include data aggregations similar to those in this case, e.g., timestamped geolocation data points collected by GPS sensors on cell phones.
    • Therrien failed to disclose Polakis or his expert report within this Court’s discovery deadlines and offered no reason as to why he could not have identified him earlier and provided his report in a timely manner. The Court did not accept Therrien’s lame characterization of the report as a “rebuttal” and made particular note of the fact that there was no effort on Plaintiff’s part to seek an amendment extending the Court’s discovery schedule and its deadlines. 

    Case Details:

    Case Caption: Therrien V. Hearst Television
    Docket Number: 1:23cv10998
    Court: United States District Court, Massachusetts
    Order Date: February 14, 2025
  • Insurance Law Expert Witness’ Testimony Does Not Survive the Rule 37 Challenge

    Insurance Law Expert Witness’ Testimony Does Not Survive the Rule 37 Challenge

    A fire took place overnight at Tiffany Keen and Trevor Wogrin’s newly-purchased residence at 45100 County Road 1 in Parker (the “Home”), on June 5-6, 2022 (the “Fire”), causing damage. The Home was insured by a homeowner’s insurance policy issued by Allstate (the “Policy”). The Insureds submitted a claim to Allstate on June 6, 2022 for the payment of covered benefits under the Policy (the “Claim”).

    Allstate refused to pay Dwelling benefits under the Policy. Almost ten (10) months after the Claim was submitted, Allstate filed this action against the Insureds seeking a declaration that the intentional acts exclusion applies to the Claim to bar coverage.

    Defendants designated an insurance industry expert in support of their counterclaims for breach of insurance contract and bad faith. However, Allstate did not designate an affirmative insurance industry standards expert; instead, it designated its industry standards expert, Keith Olivera as a rebuttal expert.

    To begin with, Defendants sought to strike Olivera on the ground that he was not a proper rebuttal expert. Alternatively, they claimed that he was unqualified to offer certain opinions asserted in his expert report and sought to limit other aspects of his testimony as unnecessary, irrelevant, confusing, or usurping the Court’s prerogative to instruct the jury on the law. 

    Insurance Law Expert Witness

    Insurance Law Expert Witness

    Keith R. Olivera has been an attorney practicing in the field of insurance law for 30 years. Much of his practice involves advising insurers on claim handling practices and claims decisions.

    He advises insurers on claim handling decisions involving both first- and third-party claims. Moreover, he has represented or assisted insurers in hundreds of cases or claims where the insurer has been alleged to have engaged in unreasonable claim handling.

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

    Discussion by the Court

    As per Fed. R. Civ. P. 26(a)(2)(D)(ii), a rebuttal expert opinion is one “intended solely to contradict or rebut evidence on the same subject matter identified by another party.”

    The Court found that, superficially, this is what Olivera’s opinion appeared to do. In other words, Olivera contradicted the opinions of the Defendants’ industry standards expert witness, Douglas Meier, who asserted that Allstate’s handling of the Defendants’ insurance claim was unreasonable.

    However, where the subject matter of the expert’s testimony concerns a matter the designating party knew or should have known would be part of its opponent’s case-in-chief, that expert is an affirmative expert.

    To prove their substantive claim, Defendants perforce will be required to show Allstate “acted unreasonably and with knowledge of or reckless disregard for the fact that no reasonable basis existed for denying [Defendants’] claim.” Accordingly, Allstate absolutely should have predicted Defendants would offer an industry standards expert. They could not lay behind the log and only designate their own industry standards expert in rebuttal. Accordingly, the Court held that Olivera is not a proper rebuttal witness.

    Under Rule 37, a party is required to show that the violation of the discovery obligations was substantially justified or harmless.

    Allstate has failed to even acknowledge Rule 37 standards, must less attempt to show how they might be satisfied in this case.

    Held

    The Court granted the Defendants/Counterclaim Plaintiff’s motion to strike or limit the opinions and testimony of Plaintiff’s retained insurance law expert witness, Keith Olivera.

    Key Takeaway

    A rebuttal expert addresses “new unforeseen facts” that emerge in the opposing side’s case. Basically, Allstate tried to present Olivera as a rebuttal expert to counter the Defendants’ expert testimony about insurance industry standards. However, where the subject matter of the expert’s testimony concerns a matter the designating party knew or should have known would be part of its opponent’s case-in-chief, that expert is an affirmative expert.

    When given the chance to justify the violation of its discovery obligations under Rule 37(c)(1), Allstate failed to address any of the required factors for showing their violation was either substantially justified or harmless. Allowing Olivera to testify would have prejudiced Defendants and disrupted the trial. This failure further cemented the Court’s decision to strike his opinions and bar him from testifying.

    Case Details:

    Case caption: Allstate Vehicle And Property Insurance Company V. Wogrin Et Al
    Docket Number: 1:23cv803
    Court: United States District Court for the District of Colorado
    Date: December 23, 2024
  • Transportation Safety Expert Witness’ Testimony About the Road Conditions Admitted

    Transportation Safety Expert Witness’ Testimony About the Road Conditions Admitted

    Plaintiff, Luvelle James alleged that during a winter storm on January 6, 2022, his car was struck on Interstate 55 by an Aramark truck being driven by Steven Moore. As a result of this crash, Plaintiff alleged injuries to his back, neck, and head. He sought damages for past and future medical bills, past and future mental and physical pain and suffering, past and future lost wages, the loss of earning capacity, and loss of enjoyment of life. 

    James alleged claims of negligence (Count I), negligence per se (Count II) and negligent hiring, training and supervision against Defendants Steven Moore and Aramark Uniform & Career Apparel, LLC. He also sought punitive damages against both Defendants.

    Plaintiff’s expert Michael Connelly testified that Defendant Moore failed to meet industry standards of care for a commercial driver in his operation of the Aramark truck on the day of the accident. Second, that Defendant Aramark failed to meet industry standards of care for a motor carrier with respect to Aramark’s training, supervision, and monitoring practices over its employee, Steven Moore. Defendants filed a motion to exclude Connelly’s testimony.

    Transportation Safety Expert Witness

    Michael Connelly is the president of Transhield, Inc. He and the Company specialize in providing third party safety and compliance solutions to transportation, distribution, and logistics companies nationwide.

    A graduate of Clemson University, Connelly has been in the transportation industry for over 20 years. A licensed CDL driver, he has served many operational roles in both the Truckload and LTL industry sectors. Upon entering the field of transportation safety, he quickly rose to the top of an industry leading fleet in Western Maryland.

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

    Discussion by the Court

    Defendants did not challenge Connelly’s qualifications. Instead, Defendants argued that Connelly’s opinions were not based on sufficient facts to be reliable and helpful to the jury.

    Failure to Consider Deposition Testimony

    First, Defendants contended that Connelly’s opinions were unreliable because Connelly did not consider or even review the testimony of Plaintiff James, and that Connelly therefore inaccurately stated that the road conditions were disputed at the time of the accident. Defendants maintained that James admitted the road was not snow-covered until he stopped on the interstate immediately before the accident. Similarly, Defendants pointed out, Defendant Moore testified there was no snow or ice on the road until just before the accident.

    Both parties therefore appeared to agree that there was no snow on the roadway until just before the accident; however, what they mean by those statements could be different. Plaintiff James’s actual testimony is that “when I got to the major incident and stopped the car, the road was snow covered because there wasn’t – wasn’t nothing moving.”

    Defendants also asserted that Connelly improperly relied on a Missouri Highway Patrol officer’s testimony regarding the severity of the road conditions. Defendants argued that the officer could not have known the road conditions at the time of the accident because he did not arrive at the scene until sometime later.

    Because Connelly based his opinions on this allegedly incomplete or misleading information, Defendants said that his testimony should be excluded. However, the Court held that Connelly’s opinion was not fundamentally unsupported and that the Defendants’ concerns about any “cherry-picked” facts may be addressed through cross-examination.

    Other Accidents on the Interstate

    Next, Connelly’s opinion stated that Defendant Moore would have passed at least four accidents prior to the collision with Plaintiff. 

    However, Connelly admitted he was mistaken, and the four accidents to which he referred actually happened after the parties’ collision.

    The Court held that  Connelly may therefore not testify as to the existence of the four accidents.

    Opinion Regarding when to Slow Vehicle

    Next, Defendants addressed Connelly’s opinion that Defendant Moore waited too long to slow his vehicle. Defendants complained that Connelly improperly “assumed that Moore encountered hazardous weather conditions well before” the time and location of the accident. Defendants quibble again with the testimony from the Plaintiff, Defendant, and the highway patrol officer. Again, as with the question of when the roads became snow-covered, the Court held that the factual basis for Connelly’s opinion was subject to cross-examination.

    Citation for driving too fast

    Defendant objected to Connelly’s report stating that Defendant Moore was ‘cited’ for driving too fast. Connelly now admits that Defendant Moore received no citation or ‘ticket’ for driving too fast for conditions. The Court held that Connelly may not testify that such a citation exists.

    Held

    The  Court granted in part and denied in part the Defendants’ motion to exclude the testimony of Michael Connelly.

    Key Takeaway:

    Because Connelly’s opinion is not fundamentally unsupported, Defendants’ concerns about any “cherry-picked” facts may be addressed through cross-examination. After all, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.

    Case Details:

    Case Caption: James V. Moore Et Al
    Docket Number: 1:23cv115
    Court: United States District Court, Missouri Eastern
    Order Date: February 14, 2025