On July 29, 2022, a minor, Kamila, represented by her mother Keila Robles Figueroa (“Plaintiff” or “Robles”), filed a medical malpractice lawsuit against Dr. Juan C. Castañer (“Castañer”), Presbyterian Community Hospital, Inc. (“the Hospital”) and the Hospital Pediátrico Universitario (collectively “Defendants”). The allegations of negligence in this lawsuit are centered on the medical care providers’ treatment of Robles and her baby during her pregnancy, delivery, and the neonatal care of her premature infant. Robles claimed that the Defendants deviated from the established standards of care.
Defendants sought to exclude the testimony of Plaintiff’s life care planning expert witness, Jocelyn Holt.
Life Care Planning Expert Witness
Jocelyn Holt is a certified life care planner since 2017. She is also a Licensed Occupational Therapist in the states of Florida and North Carolina. She holds a bachelor’s degree in Science, occupational therapy with a minor in Health Science Education from the University of Florida. In addition, she holds a Life Care Planning Certification Course from the Institute of Rehabilitation Education and Training. Her experience since 2002 has been mainly as an Occupational Therapist, yet since 2018 she is the owner of and life care planner at Planning Hope, LLC in Gainesville, Florida.
According to Defendants, Holt’s limited experience with pediatric patients, particularly infants and children with complex medical conditions like autism and brain injury, and her inexperience in preparing a life care plan for a medical malpractice case is a significant factor in disqualifying her testimony. They added that Holt did not collaborate with or consult any medical experts, including neurologists, pediatricians, or other relevant specialists, before rendering her life care plan. Specifically, they maintained that she prepared her life care plan without consulting any of Kamila’s treating physicians. In addition, Defendants argued that since Holt relied on generalized data from the Center for Disease Control and Prevention (“CDC”) as to life expectancy— that is not specific to Kamila’s condition— and did not consult appropriate experts, her testimony does not meet the Daubert standards because it lacked a reliable foundation. Defendants also questioned Holt’s methodology and conclusions as speculative and unreliable.
Plaintiff’s Arguments
In response, Plaintiff submitted that the motion in limine constitutes an untimely dispositive motion disguised as a motion in limine. To this extent, Plaintiff argued that this District has already held that “a motion in limine to exclude the Plaintiff’s expert on grounds that his opinion is unreliable was not the appropriate tool to move for judgment on a particular claim.”
She argued that “an expert witness may base his opinion on reports, writings or observations not in evidence which were made or compiled by others, so long as they are of a type reasonably relied upon by experts in that particular field.”
Analysis
A. Holt’s Qualifications
Based on her credentials and extensive experience, the Court determined that Holt was qualified to testify as a life care planner.
B. Holt’s Life Care Plan for Keila Robles on behalf of Kamila Robles (“Life Care Plan Report”)
Holt’s life care plan report, dated April 18, 2023, indicates that “the recommendations are gathered from information provided by [Kamila’s] medical providers through records and evaluations, Keila Robles, evidenced [sic] base practices, as well as knowledge/experience from this life care planner.”
Moreover, during her deposition, Holt admitted that she did not consult any physician before she rendered the life care plan report. She also stated that the life care plan reflects her opinion, based on her assessment after speaking with Kamila’s mother and reviewing her medical record. To this extent she expressed that she interviewed Kamila’s mother on two different occasions.
Holt used the National Vital Statistic Reports and CDC data and indicated she was not an expert in life expectancy. To that extent, in her life care plan Report, Holt clearly stated that “opinions on the life expectancy tables are deferred to an appropriate expert.”
In addition, in page 15 of her life care plan report, Holt listed a series of references used to prepare her report, which included various website links including the CDC and other publications from the pediatric and medical field.
Foremost, and Plaintiff admitted as much, Holt will only testify as a life care planner, and not as to the applicable medical standards of care; the departures from the medical standards of care by Defendants in the treatment of Kamila; or the causal relationship between the alleged departure from the medical standards of care with Kamila’s damages.
Reliability and Methodology
While Defendants questioned the reliability of Holt’s life care plan because she did not consult Kamila’s physicians and attacked Holt’s conclusion because of her methodology and basis, the Court noted that in the first few pages of his report, Holt employed the standard methodology applied by life care planners which requires consideration of: (a) available medical records; (b) assessment of the individual; (c) assessment of the data and the individual’s needs, and (d) research of the costs within the relevant geographical area of items needed for the proper care of the patient. This appeared to be a sufficiently reasonable and reliable method for formulating a life-care plan.
The Court agreed with the Defendants to the extent that there might be some deficiencies in the strength of support for some of the recommendations in Holt’s life care plan report, but concluded that those issues go to the weight, and not the admissibility, of Holt’s testimony. Holt will be able to testify, and be subject to cross-examination, about her opinions in this case.
Held
The Court denied the Defendant’s motion in limine to exclude the testimony of Plaintiff’s life care planning expert witness, Jocelyn Holt.
Key Takeaway:
Despite challenges to Holt’s qualifications, the Court determined she was qualified to testify, given her extensive experience as a certified life care planner and licensed occupational therapist. Defendants argued that Holt’s failure to consult Kamila’s treating physicians and her reliance on generalized data from the CDC rendered her testimony unreliable. However, the Court noted that life care planners are not required to consult with treating physicians when formulating life care plans. Furthermore, the Court found Holt’s methodology to be reasonable and consistent with standard practices in the field. While the Defendants raised valid concerns about the strength of some of Holt’s conclusions, the Court concluded that these issues affected the weight of her testimony, not its admissibility. As a result, Holt was allowed to testify, and the Court permitted cross-examination regarding her opinions.
Case Details:
Case Caption:
Robles-Figueroa V. Presbyterian Community Hospital, Inc. Et Al
Doket Number:
3:22cv1361
Court:
United States District Court for the District of Puerto Rico
On November 6, 2022, the Plaintiff, Jean Joyce Lejeune, was driving a 2021 Toyota Camry westbound on I-10. The Plaintiff alleged that while she was traveling, an 18-wheeler switched lanes and collided with her vehicle. The parties disputed which vehicle deviated from its respective lane. The Defendant, Moses Nganga Rugu, was the driver of the 18-wheeler. Rivatex Transport, Inc. owned the truck, and American was the insurer.
Defendant American hired Richard V. Baratta and intended to present him as an expert in biomedical and/or biomechanical engineering to testify at trial. The Plaintiff asserted that Baratta’s opinion was “bought and paid for” and challenged the methodology underlying his conclusions. Additionally, the Plaintiff argued that Baratta was not qualified to render biomechanical or biomedical opinions and that his opinions were not based on sufficient facts or data.
Biomechanical Engineering Expert Witness
Richard V. Baratta is a registered professional engineer licensed in Texas as a mechanical engineer, and biomedical specialist. He is also a licensed professional engineer in Florida, Louisiana, Illinois, Alabama, New York, Indiana, Georgia, Oklahoma, Colorado, and Mississippi.
He has been qualified as an expert in biomechanics and accident reconstruction over sixty times, including in the Western and Southern Districts of Texas. Baratta earned three degrees in Biomedical Engineering from Tulane University, including a masters’ degree and a doctorate degree.
Plaintiff initially claimed injuries at the scene, went to the emergency room, and was released that same night. Plaintiff sought treatment eleven days later and is seeking over $1.8 million in future medical expenses. Defendant challenged the nature and extent of Plaintiff’s alleged injuries. Defendant has retained Baratta to address what forces and mechanisms might have been at play, or were non-existent, with respect to the incident. Plaintiff argued that Baratta is not qualified because of his methodologies that formed his opinions. Plaintiff did not appear to challenge Baratta as an expert biochemical engineer.
Plaintiff’s Position
Plaintiff challenged Baratta’s review of the photographs, and argued that Baratta is not an expert in interpretation of photographs. This argument is nonsensical to the Court. Experts commonly review photographs to form opinions.
She also complained that Baratta relied on a Uniform Vehicle Traffic Crash Report, Autostats data, Plaintiff’s deposition relative medical summary, but did not appear to challenge the use of this information. Plaintiff complained that Baratta did not rely on the estimate of the actual body-shop mechanic but relied on another repair estimate and challenges whether the author of that estimate was qualified.
Plaintiff specifically challenged Baratta’s opinions because he did not rely on statements made by Trooper Matthew Gaspard in his deposition, or statements made by Defendant, Rugu. Also, Plaintiff challenged Baratta’s methodology because he did not inspect the accident scene, take measurements, determine the applicable “G-forces” involved in the accident, take any “delta-v” presented, render mathematical computations, measure crush damage, render or account for any methodology supporting his opinion, personally inspect the subject vehicles, determine Plaintiff’s actual levels, determine the angular approach of the alleged tortfeasor’s vehicle, weigh the vehicles involved, determine the speed or impact speed, conduct any tests to determine reliability, determine crush profiles, conduct or perform methodology to the facts, outline any of the principles of engineering to the facts, indicate that his opinions have been subject to peer review, and/or indicate whether his “methodology” is capable of being repeated.
Defendant’s Position
Defendant remarked that Baratta’s report indicated that he relied on and considered the Uniform Crash report, body camera footage, relevant statements made to the investigating officer, Plaintiff’s and the Officer’s depositions, damage photographs, an inspection of Plaintiff’s vehicle, statistical data of Plaintiff’s vehicle, an EDR report for Plaintiff’s vehicle, the Vehicle Control History report for Plaintiff’s vehicle, evaluation of that data through sophisticated and industry accepted crash analysis programs, and Plaintiff’s medical records.
Applying the principles of crash analysis to the facts of this case, and basing his opinion on industry-approved, peer-reviewed, and testable methods, Defendant argued that a review of the relevant and accurate data will assist the trier of fact.
Analysis
The Court reviewed Baratta’s report and considered Plaintiff’s complaints and found that they were unfounded, lacked specificity and authoritative support, and some were falsely presented to the Court. Additionally, Plaintiff’s complaint tends to bear on the weight of Baratta’s opinion rather than its admissibility. Furthermore, Plaintiff will be able to cross-examine Baratta as to his opinions and how he arrived at them at the trial of this matter.
Held
The Court denied Plaintiffs’ motion in limine to exclude the testimony of Richard Baratta.
Key Takeaway:
The trial court has broad latitude in determining the admissibility of expert testimony. Rejection of expert testimony is the exception rather than the rule, and the Court’s role as gatekeeper “does not replace the traditional adversary system and the place of the jury within the system.” Instead, vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.
Case Details:
Case Caption:
Lejeune V. American Inter-Fidelity Exchange Et Al
Docket Number:
2:23cv1364
Court:
United States District Court for the Western District of Louisiana, Lake Charles Division
This case involves a ski collision that occurred on March 19, 2023, involving Plaintiff, Tasha Barber and Defendant, Christine Mack that occurred at Aspen Highlands Ski Resort. The Plaintiff alleged that the Defendant was skiing uphill of her and had the primary duty to avoid colliding with the Plaintiff.
As a result, the Plaintiff sought damages for her injuries from the crash. The Defendant denied the allegations and, as part of her defense, retained Jonathan Delk as an expert. In his expert report, Delk included a section titled “Conclusion and Opinions” in which he reached a variety of factual conclusions and offers his opinions. At the end of that section, Delk offered three opinions:
1. Barber was responsible for avoiding the collision based on her being the uphill skier.
2. Barber was neither prepared nor aware enough to begin skiing, nor does she acknowledge that her being in motion (“coasting”) as skiing, which it is. These real facts and perspectives shared by Tasha Barber prove that Tasha was not sufficiently in control or aware of her surroundings to have avoided a collision.
3. Barber’s choice of actions to avoid the collision (shouting, leaning back, twisting) were ultimately the cause of her skis coming into contact with Christine Mack’s. Tasha Barber’s movements were the ultimate mechanism of her injury.
The Plaintiff challenged the admissibility of these opinions, characterizing them as paid advocacy masquerading as expert testimony.
Ski Safety Expert Witness
Jonathan Delk is an experienced trainer and risk manager with 15 years of ski, snowboard, and cycling coaching and training experience. From 2004 – 2019 he was employed in various roles in the ski industry including instructor, guide, coach, trainer, manager, and director of snowsports.
During his tenure in the ski industry, he created and administered safety trainings for instructors and resort staff related to the Skier’s Responsibility Code and the Colorado Skier’s Safety Act. While his primary work has shifted fields, he remains active in the ski industry both as an instructor and member of PSIA-AASI, the governing body of instructor certifications in the United States for which he was also employed during his career as an examiner.
According to Delk’s report, he considered deposition transcripts, documents from this case, the Colorado Ski Safety Act of 1979, the NSAA Skier’s Responsibility Code, and a video of the incident.
First Opinion
The Court held that the justification for Delk’s first opinion, for example, began by noting that the Colorado Ski Safety Act put the primary duty to avoid collision “on the person skiing downhill” as to “any person or objects below him.”
That is fine as far is it goes. But the main conclusion he employed in the opinion — that the Plaintiff was the uphill skier — is largely rooted in his estimation of the paths of travel of the various individuals involved. And it is unclear what methodology Delk employed in crafting that estimation. He provided terrain photographs and stated conclusions, but their provenance is a mystery: there is no analysis, measurements, information about the grade of the land, or any concrete methodology supporting the conclusions.
The Defendant protested, arguing that Delk applied specialized terrain knowledge to plot probable paths and project the parties’ trajectories. That is not what his report showed. Instead, Delk presented two maps with path lines drawn on them without explanation as to why those paths would be any more reliable than a casual skier’s guess. That will not do. It did nothing to “explain how [his] experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.”
Accordingly, the Court found Delk’s opinion—that Tasha Barber was responsible for avoiding the collision because she was the uphill skier—to be unreliable.
Second Opinion
The Court held that Delk’s opinion on the mental state of the Plaintiff appeared detached from any cognizable methodology. Indeed, he provided no clear path as to how he arrived at his conclusion. His statement that coasting is skiing — while potentially true — appeared to be pure ipse dixit on the face of the report. Accordingly, the Court concluded that the Defendant has not satisfied her burden of showing that the opinion is reliable.
ThirdOpinion
The Plaintiff characterized Delk’s opinions as irrelevant, devoid of legal support, prejudicial, and invading the province of the jury. The Court ultimately found that they were not supported by Delk’s qualifications or methodology.
It should be noted that Delk is experienced in ski instructor training and, through the Professional Ski Instructors of America and American Association of Snowboard Instructors, he is a certified instructor. While that background clearly made him knowledgeable about the general responsibilities of skiers, such as those enumerated in the Skier’s Responsibility Code and the Colorado Skier’s Safety Act, general qualifications alone did not end the analysis.
The Court held that the second sentence of Delk’s third enumerated opinion did not relate to Delk’s experience or training. To opine about the ultimate mechanism of injury is a medical conclusion, and neither Delk nor the Defendant contended that Delk had any medical training, education, or experience that would allow him to render an expert opinion on injury causation. And given that it is the Defendant who “bears the burden of establishing that the expert is qualified” to render his opinions, that alone defeated the propriety of this section of the opinion.
The Defendant demurred. That sentence, she insisted, simply weighed in on liability, not injury. That is not what it says. The first sentence is the one that opines on the cause of the collision; the second plainly adds a gloss regarding the cause of the Plaintiff’s injury. Delk has no qualifications permitting such a gloss. Accordingly, the Court excluded Delk’s opinion regarding the cause of the Plaintiff’s injuries.
The first sentence of the opinion fared no better for a different reason: it lacked reliability. Delk did not explain his methodology for reaching this opinion.
Held
The Court granted the Plaintiff’s motion to strike the opinions of Jonathan Delk.
Key Takeaway:
The Court held that Delk’s opinions incorporate little by way of reliable expertise. His first opinion is rendered not to illustrate the impropriety of skiing uphill — which could be a valid subject for expert testimony — but instead to opine that the Plaintiff was skiing uphill, grounded, apparently, in an “assum[ption].” Delk’s second opinion, rather than educating the jury as to how one would be prepared to ski, simply casts aspersions on the plaintiff’s preparedness level. His third appears to have “no application of knowledge, experience, or expertise to the conclusion” he “reaches about proximate cause.”
While a jury can consider opposing testimonies, when one of them comes from a purported expert, it must still be grounded in reliable experience or methodology to “help the trier of fact to understand the evidence or to determine a fact in issue.”
The Court held that Delk’s opinion was based almost entirely on his selection of facts, without apparent application of reliable principle or experience that grounds his selectivity or that would aid a jury. It therefore failed to “reveal how the experience led to the expert’s conclusion,” let alone “how the experience was reliably applied.”
Case Details:
Case Caption:
Barber V. Mack
Docket Number:
1:24cv260
Court:
United States District Court for the District of Colorado
On July 29, 2022, a minor, Kamila, represented by her mother Keila Robles Figueroa (“Plaintiff” or “Robles”), filed a medical malpractice lawsuit against Dr. Juan C. Castañer (“Castañer”), Presbyterian Community Hospital, Inc. (“the Hospital”) and the Hospital Pediátrico Universitario (collectively “Defendants”). The allegations of negligence in this lawsuit are centered on the medical care providers’ treatment of Robles and her baby during her pregnancy, delivery, and the neonatal care of her premature infant. Robles claimed that the Defendants deviated from the established standards of care.
On August 30, 2024, the Hospital filed a motion in limine to exclude Plaintiff’s neonatology expert witness, Carolyn Crawford. The Hospital argued that Crawford was neither qualified by education, training, and experience, to opine on the topic of autism or its causes, nor did her report or deposition testimony present opinions that could be said to be based on reliable methodology or rested on sufficient factual foundation.
On October 7, 2024, Plaintiff argued that Crawford had the necessary expertise to opine on autism and autistic-like behavior in children, as to assist the fact-finder. She also argued that concerns about Crawford’s qualifications and methodology go to “the weight of the testimony, rather than admissibility, which is properly reserved for the jury.”
Neonatology Expert Witness
Carolyn Stocker Crawford completed her B.S. from Dickinson College in Carlisle, Pennsylvania, in 1962, followed by an M.S. from St. Joseph’s University in Philadelphia in 1964. She then completed her M.D. from Jefferson Medical College in Philadelphia in 1971.
With nearly fifty years of practice in medicine, specifically in the areas of neonatal and perinatal medicine, her experience includes many publications and book chapters in the field of neonatology, including several related to Respiratory Distress Syndrome (RDS).
In her expert report dated December 30, 2022, Crawford provided her analysis of Kamila’s medical history, including alleged deficiencies in the prenatal care received by Kamila’s mother, Robles, and the perinatal and neonatal care Kamila received after birth. Defendants challenged the statements in the expert report that relate specifically with Kamila’s neurological status, including certain “autistic-like behaviors.”
Defendants argued that the Court should exclude these opinions from trial because Crawford was not qualified to make them, and argued that her methodology lacked a reliable basis.
A. Crawford’s Qualifications
Defendants argued that Crawford lacked the qualifications to testify as an expert on issues like autism and autistic-like behaviors in children or its causes. Defendants stated that Crawford’s expert qualifications are limited by her education, training, experience, and academic appointments to “pediatrics and neonatology.” As her CV is devoid of any publications on autism or neurology, Defendants claimed that Crawford’s experience reflected a “lack of dedicated research or deep knowledge in the field.”
a)Curriculum Vitae
The Court reviewed Crawford’s CV and found that she had practiced medicine for nearly fifty years, specifically in the areas of neonatal and perinatal medicine. Her experience included many publications and book chapters on neonatology, including several related to Respiratory Distress Syndrome (RDS). While the Court agreed that Crawford is an experienced physician in neonatology, it observed that any focus on childhood autism, autistic-like behaviors, or pediatric neurology was notably missing from her CV.
b)Deposition
During her deposition, Crawford was asked if she considered herself an expert in pediatric neurology, and she responded, “Yes. In certain areas, yes.”She elaborated: “the kind of complications that you see in premature infants as they develop and mature and age. The type of interventions, the causation of certain types of problems. Certain types of neurological problems.”
After being asked whether she is qualified to diagnose someone with autism, she responded, “I think I’m qualified to screen and to discuss with parents, but in terms of actually doing the testing, no. I have not been trained to do the actual testing for autism. But in terms of identifying risk factors and evaluating a child for the possibility of autism, I think, yes, I would consider myself reasonably qualified.” Despite admitting she lacks the qualifications to diagnose autism in children, Crawford stated regarding Kamila, “the child does not really have autism. The child may have some autistic-like features related to the brain damage she has.”
Because Crawford’s experience was not related to diagnosing autism and she had not issued or contributed to publications on autism or autistic-like behavior, Plaintiffs had not shown by the preponderance of the evidence that Crawford was qualified to testify in regard to autism in that case. As such, the Court found that Crawford’s testimony shall be limited to her areas of expertise, namely neonatology, and shall not veer into diagnosis and causation for autism or autistic-like behaviors.
B. Crawford’s Methodology
The Court also examined Crawford’s opinions as to Kamila’s autistic-like behaviors and the causal link to brain damage.
a)Expert Report
In drafting her expert report, Crawford reviewed Kamila’s medical records and had a phone interview with Kamila’s mother, Robles. Based on this review, Crawford concluded that “Kamila’s neurological injury is the result of her prematurity ‘Plus.’ The ‘Plus’ is the contribution from sepsis, hypotension, DIC, hypoxia/ischemia from multiple apneic episodes in the context of non-steroid benefitted RDS and delayed surfactant administration. As a result of her episodes of hypoxia and altered perfusion she also suffered irreversible brain damage with resultant developmental delay and abnormal neurological function including autistic-like behavior. No family history of developmental delay, autism or cerebral palsy was identified. Absent her significant RDS and NEC and their sequelae, Kamila would likely have developed normally.”
b)Deposition
At her deposition, Crawford stated that she believed Kamila “has cerebral palsy, has a brain injury, and [she] think[s] her behavior is explainable by the brain damage and not necessarily by some underlying autism.” When asked what evidence she relied on to support her opinion that Kamila has brain damage, Crawford stated, “she can’t do any self-care. She doesn’t eat. She’s non-verbal. I think motor-wise she’s very delayed. I don’t think she walks or runs. She doesn’t talk.” Crawford also stated that she had not seen an MRI for Kamila but that one “would be an appropriate test to assess her.”
It was noted that Plaintiff did not provide any scientific basis for Crawford’s belief that Kamila in fact has brain damage and that there is a scientific link between brain damage and autism or autism-like behaviors.
Plaintiff argued that this was simply a matter in which experts disagreed, thus pertained “to the weight of the testimony, rather than admissibility, which is properly reserved for the jury.”
The Court disagreed. The record before the Court revealed Plaintiff’s failure to demonstrate by a preponderance of evidence that Crawford’s testimony was the product of reliable principles and methods. Consequently, the Court did not allow Crawford to testify about autism, autism spectrum disorder, or autism-like behaviors during the trial.
Held
The Court granted the Defendant’s motion in limine to exclude Plaintiff’s neonatology expert witness Carolyn Crawford’s testimony regarding autism, autism spectrum disorder or autism-like behaviors.
Key Takeaway:
The Court excluded Crawford’s expert testimony regarding autism and autistic-like behaviors for two main reasons:
Lack of Qualifications: While Crawford’s expert qualifications are limited by her education, training, experience, and academic appointments to “pediatrics and neonatology.” She admitted herself that she has not been trained to do the actual testing for autism. Notably missing from her CV is any focus on childhood autism, autistic-like behaviors or pediatric neurology in general.
Unreliable Methodology: Plaintiff has not provided any scientific basis for Crawford’s belief that Kamila in fact has brain damage, and that there is a scientific link between brain damage and autism or autism-like behaviors. In this case, there is “too great an analytical gap between the data and the opinion proffered.”
Case Details:
Case caption:
Robles-Figueroa V. Presbyterian Community Hospital, Inc. Et Al
Docket Number:
3:22cv1361
Court:
United States District Court for the District of Puerto Rico
In this antitrust action, separate Plaintiff groups of users and advertisers sued Meta Platforms, Inc. (Meta), for alleged anticompetitive conduct under the Sherman Act and California state law in connection with the Facebook social-networking app.
The user group, headlined by named Plaintiffs Maximilian Klein, Sarah Grabert, and Rachel Banks Kupcho, alleged that Meta illegally acquired and maintained a monopoly in the “personal social network services” (PSNS) market “through repeated misrepresentations over its data collection and use practices” that “deprived its competitors of the ability to compete.” The user Plaintiffs have asked to certify a class of all persons in the United States who used a Facebook profile between December 2016 and December 2020.
The certification request rises or falls on the validity and reliability of the opinions of the user Plaintiffs’ economist, Nicholas Economides, with respect to antitrust injury and other elements required for proof of a monopolization claim. Meta asked to exclude the opinions of Dr. Economides under Federal Rule of Evidence 702 and related cases.
Meta illegally acquired and maintained a monopoly in the PSNS market
The user Plaintiffs’ main allegation is that Meta illegally acquired and maintained a monopoly in the PSNS market by deceiving users into believing that Facebook’s data collection and privacy practices were more protective than they actually were.
In Plaintiffs’ view, these false assurances prevented other firms from effectively competing in the alleged PSNS market. The user Plaintiffs contended that this barrier to competition injured them in a manner contemplated by the antitrust laws.
For the request to certify a class comprised of millions of Americans who used Facebook over the span of four years, the user Plaintiffs advance a single theory of antitrust injury. The theory is that, but for the misrepresentations about data privacy, Meta would have found itself in a competitive PSNS market that would have forced it to pay users for their data to retain robust user engagement. This theory is based entirely on the report of Economides, who opined that “Facebook would have compensated [users] a certain amount per month for their data in the but-for world where [users] knew the truth about Facebook’s data practices, because the alternative would have led to an unacceptable loss of market share for Facebook.”
Economics Expert Witness
Nicholas Economides is an internationally recognized academic authority on network economics, electronic commerce and public policy. His fields of specialization and research include the economics of networks, especially of telecommunications, computers, and information, the economics of technical compatibility and standardization, industrial organization, the structure and organization of financial markets and payment systems, antitrust, application of public policy to network industries, strategic analysis of markets and law and economics.
Professor Economides has published more than 100 articles in top academic journals in the areas of networks, telecommunications, oligopoly, antitrust, product positioning and on the liquidity and the organization of financial markets and exchanges. He holds a Ph.D. and M.A. in Economics from the University of California at Berkeley, as well as a B.Sc. (First Class Honors) in Mathematical Economics from the London School of Economics. Previously, he taught at Columbia University (1981-1988) and at Stanford University (1988-1990).
Economides starts with the general observation that, in competitive markets, “sellers must lower their prices or else lose market share.” He starts with the general observation that, in competitive markets, “sellers must lower their prices or else lose market share.”
This observation requires immediate modification for the alleged PSNS market because, as every online denizen knows, Facebook and other social-networking apps are provided without charge to users. Economides attempts to account for this fact by saying that, although users do not pay Meta to use Facebook, Meta “charges a price to users in the form of data collection and use.” He then proposes that, in a but-for world where competition in the PSNS market was not illegally constrained as alleged by plaintiffs, rival apps would offer “more competitive privacy practices” than Facebook, which would compel Meta to compete through “a reduction in the effective price of using Facebook.”
Economides postulated that this “reduction in the effective price” would take the form of a “negative price,” by which he means an affirmative payment by Facebook to users for their data. He quantified this but-for payment to be $5.00 per user per month.
Consequently, Economides concluded that the putative class of users suffered antitrust injury by being “overcharged” by Facebook, in that they were not affirmatively paid a flat rate of $5.00 per month for using Facebook, and that this resulted over the relevant class period in “total damages to the Class of $52.8 billion (pre-trebling).”
Meta’s Motion To Exclude Economides’ Testimony
Meta stated that Economides’ antitrust injury opinions amount to ‘junk science’ and should be excluded from the case under Federal Rule of Evidence 702 and the familiar standards set by the Daubert line of cases.
In Meta’s view, “the mere theory of ‘negative price markets’ . . . cannot bridge the analytical gap between how [Facebook] actually competes for users and how Economides speculates it would.”
Economides’ Antitrust Injury Opinions
Meta did not challenge Economides’ qualifications, and rightfully so. The record indicated that he is a qualified antitrust economist.
Meta’s main criticism was that Economides’ antitrust injury opinion, namely that Facebook users suffered the loss of direct payments for their data that they assertedly would have received in the but-for world, was unsupported by the record.
The necessary links in Economides’ theory of antitrust injury are: (1) Meta competes on price and quality (2) in the but-for world without the alleged data-privacy deception, Meta would face greater competition from rivals with respect to privacy practices (3) in response to greater competitive pressure, Meta would compete on price instead of quality to avoid losing users to rivals (4) even though the price for using Facebook is “zero,” in the sense that no money is exchanged, economic theory recognizes that competitive conditions in certain markets can result in “negative” prices (5) accordingly, Meta would pay users a “negative” price to retain them instead of collecting less data.
Because Economides cited credible sources for the various economic concepts he applied, the Court saw no basis for concluding those theories and principles themselves are not well accepted in the field of economics.
In response to greater competitive pressure, Meta would compete on price instead of quality to avoid losing users to rivals
Meta did not challenge Economides’ belief that Facebook would not change its data-collection practices in the but-for world. Rather, the thrust of Meta’s challenge to his opinions on antitrust injury concerns the third link described above that Facebook would choose to compete on price instead of quality in the but-for world to avoid losing users.
To be sure, Economides relied on economic literature discussing the theory and existence of negative prices in online and double-sided platform markets, which are the types of markets the PSNS market is said to be. However, the Court held that economic theory alone does not make his opinions admissible.
In addition, the user Plaintiffs did not even allege, let alone establish with evidence, that any other participant in the PSNS market has ever competed by paying users. In telling contrast, Meta provided evidence that firms in the PSNS and adjacent markets have never competed via “negative” prices.
The record undercuts the third link in Economides’ theory by demonstrating that firms in the PSNS market, including Meta, have consistently competed on the axis of quality through better content, functionality, services, and the like to keep users engaged and the stream of user data flowing, even if the firms theoretically could compete on price. The Court held that this undisputed record about the real world, and the lack of any meaningful contrary evidence, is a big red flag for Economides’ theory.
Also, citations to economic literature did not demonstrate that the economic principles of zero-and negative-price markets were reliably applied to the facts of this case.
Overall, Economides did not identify reliable and validated economic literature to support his specific conclusion that, upon coming to the proverbial fork in the road between quality and price, Facebook would choose price in the but-for world
Lack of Sufficient Factual Grounds
Besides, Economides pointed to research initiatives where Meta paid individuals in test groups to permit Meta to harvest and use a range of data from them. The problem for Economides is that these market-research programs entailed payments for user data outside the context of Facebook’s social-networking services, where Meta is not already “bartering” for user data with Facebook’s services and the quality thereof.
The problem of factual fit also affected Economides’ opinions about Meta’s internal discussions of paying users. The Court held that the two discussions that he highlighted actually concerned user data that Meta could not or did not already obtain through Facebook’s social-networking service.
A third proposal discussed by Economides arose in the context of Apple’s 2020 App Tracking Transparency (ATT) feature, which required apps running on Apple products to “obtain users’ agreement to ‘track’ users (i.e., collect and use their data) outside that app” through a pop-up prompt. This proposal contemplated paying a “data dividend” (i.e., money for relevant purposes) “to users to incentivize them to continue providing their data to Facebook” when confronted with the ATT prompt. The Court found Economides’ analysis of this proposal and its relevancy perfunctory to the point of being of little utility.
To be sure, a fourth and final proposal did contemplate “paying users for access to their personal information” as part of a “transparent approach to privacy that should become the model moving forward.”
The Court held that this idea alone, which Meta ultimately rejected, is too thin a reed on which to base the sweeping extrapolation Economides makes that Meta would pay all U.S. users money every month for using Facebook.
Analysis
Even taken as a whole, the Court held that the four proposals did not provide “sufficient factual grounds” for the third necessary link in Economides’ theory.
For all four, he opined that “Facebook recognized that the data it was collecting and using was responsible for much of its revenue and that it would make economic sense to compensate users in order to get that data (rather than lose it).”
But that conclusion does not necessarily follow from the starting point. Economides never explained why Meta would focus exclusively on answering new competition by paying users. There is no doubt, as he says, that Meta makes a lot of money from user data, but he did not demonstrate that Meta would be compelled to retain users by paying them, rather than through innovations in services and product quality. This shortfall goes beyond merely ignoring evidence that Meta in the real world has consistently competed on the basis of quality.
Consequently, the Court concluded that Economides’ opinions cannot be the basis for finding antitrust injury in this case.
Held
The Court granted in part Meta’s motion to exclude Economides’ opinions about antitrust injury. The Court denied the user Plaintiffs’ renewed motion for class certification.
Key Takeaway:
There is simply too great an analytical gap between the facts on which Economides relies and that third link in his theory. The purpose of the Court’s inquiry under Rule 702 is to “ensure that proposed expert testimony imparts ‘scientific knowledge’ rather than guesswork.” Because that necessary third step in his theory of antitrust is without basis, and so rests on guesswork, the Court cannot conclude that Economides’ methodology and opinions are reliable and consequently admissible.
An expert’s job is to consider existing data and make inferences, hypotheses, and extrapolations, and “for this reason, ‘an expert is permitted wide latitude to offer opinions.’” Even so, there must be a sound foundation in the evidence to support every step on the way to their conclusions.
Case Details:
Case Caption:
Klein Et Al V. Meta Platforms
Docket Number:
3:20cv8570
Court:
United States District Court for the Northern District of California
Plaintiff Brandeon Alexander (“Alexander”), a deckhand employed by Defendant Intracoastal Tug and Barge Company, LLC (“Intracoastal”), sustained serious injuries while working aboard the M/V California Chrome. As Alexander was reaching for a line on a piling, Alexander’s arm was crushed between the barge and the piling. Captain Paul Smith (“Captain Smith”) was operating the barge, and Frederick Deliphose (“Deliphose”) was the other deckhand at the time of the accident.
After the incident, Alexander filed a lawsuit alleging claims for Jones Act negligence, unseaworthiness, and maintenance and cure. To support his claims, he retained Gary Hensley as a marine safety expert in order to review the actions and omissions of the parties in this litigation. Hensley prepared a 16-page report (“the report”) which consisted of three part: an introduction, a fact section, and a section outlining his opinions. The report also included a list of the materials which Hensley reviewed to produce the report.
In response, Intracoastal, along with Navigators Insurance Company, Ascot Insurance Company, and Mitsui Sumitomo Insurance USA, Inc. (collectively, “Defendants”) sought to exclude 15 of Hensley’s opinions. They asserted three grounds for exclusion:
(i) that several opinions constituted improper legal conclusions
(ii) that several others opinions were speculative and unsubstantial
(iii) that the remaining opinions either invaded the province of or did not assist the factfinder
Maritime Safety Expert Witness
Gary Hensley is an experienced Towboat Pilot/Relief Captain and Captain (Master) of inland towing vessels with over 30 years of hands-on experience with various towing companies. Throughout his career, Hensley has worked with both single and multi-engine vessels, moving barges, supervising crews, and training new crew members, including deckhands, tankermen, Steersmen, and Pilots. With extensive experience working and operating under every type of conditions, both natural and man-made, he has expertly managed various sized barges and tows with different configurations of the tow.
Defendants asserted that opinions 1 through 3 should be excluded as impermissible legal conclusions. Those opinions were as follows:
1. Based on my 30 plus years of training, knowledge, and experience in the maritime industry, it is my opinion that Intracoastal Tug and Barge, LLC. did not provide Brandeon Alexander with a safe place to work and that the M/V California Chrome was not adequately crewed for its intended purpose.
2. Given the facts set forth herein, it is my opinion that the vessel was unseaworthy as it lacked an adequate, and trained crew.
3. Alexander testified that Intracoastal Tug and Barge had taken the other captain, John Joseph, off the M/V California Chrome and put him on another vessel. With Captain Smith being the only captain onboard the vessel, it is a great possibility that he violated the 12-hour rule. The master logs show that Captain Smith was the only captain onboard by himself for a few days, and he even testified that he was in bed asleep when they were called to dock.
Analysis of opinions 1 to 3
The Court concluded that opinion 1 was not inadmissible as an improper legal conclusion. The Court had previously found that expert testimony about the safety of the vessel was helpful and did not constitute impermissible legal conclusions. It held that Hensley might testify relative to his opinion that the vessel had an inadequate crew. The Defendants were free to raise an objection at trial if there was an insufficient evidentiary foundation.
Regarding opinion 2, the Court held that Hensley was not permitted to testify that the vessel was unseaworthy, as that opinion most bluntly tells the jury how the verdict form should read. However, Hensley was allowed to opine on the lack of an adequate and trained crew.
Defendants’ challenge to the admissibility of Opinion 3 was on the ground that it constituted a legal conclusion rather than its applicability. The Court cannot conclude that opinion 3 would not “bring to the jury more than the lawyers can offer in argument,” and that it is therefore an impermissible legal conclusion. Further, it should be noted that Hensley’s opinion as to the 12-hour rule did not tell the jury how the verdict form should read.
b. Opinion 4 through 8
Defendants asserted that opinions 4 through 8 were inadmissible because they were speculative and unsubstantiated. Those opinions were as follows:
Opinions 4 to 6
4. Captain Smith testified that 19 days after Alexander’s injury, as the M/V California Chrome was turning into Galveston, Texas, one of the rudders just fell off the vessel. With the rudder missing, you have very limited control of a vessel. Since the rudder fell off very shortly after Alexander’s accident, there is a great possibility that there were already problems with the rudder, such as a cracked rudder stock, bent rudder, so many things could have caused the rudder to fall off, but if it were bent prior to falling off, that could have contributed to Alexander’s injury.
5. Alexander testified that while his arm was between the piling and the barge, he informed Deliphose to call Captain Smith and have him back the tow up, but Deliphose was on the wrong VHF Channel, and Alexander was unable to tell Captain Smith to back up. If Deliphose had been trained in the proper use of the VHF Radio, he would have known that his radio had jumped channels, and he could have corrected it, but he was inexperienced and untrained.
6. Alexander testified that the only training he got while working at Intracoastal was some Safety Orientation videos. He continued by saying that the other companies had regular safety meetings, but they did not have regular safety meetings at Intracoastal Tug and Barge. With Deliphose being an inexperienced deckhand, and had only been on the boat for 2 days before Alexander’s injury, he should have had some type of land-based training, other than safety videos, before he went and caught a vessel.
Opinion 7 and 8
7. It is my opinion that since Captain Smith testified that he was in bed asleep and had to be awoken to go to the dock, and had only been to HOTFOOT Ship Dock #3 one time previously, I can tell you from my 35 years’ experience that doing this IS a very stressful situation, for you have no idea what the dock looks like.
Houston Ship Channel is one of the busiest ship channels in America, and with the M/V California Chrome and her tow going to ship dock 3, Captain Smith should have unsecured the vessel from the end he was made fast to and run around to the other end of the tow, and make fast to that end. That way he would not have had to top the tow around and he could have went straight on dock, instead of coming into the dock at an angle, like he did.
8. It is also my opinion that Captain Smith possibly became distracted by all the tows and ships on dock, traffic moving in the Houston Ship Channel, radio chatter, and attempting to listen to Alexander and Deliphose calling out instructions since Captain Smith was 400′ away from them, it was at night, and he had only been to HOTFOOT Ship Dock once previously.
Analysis of opinions 4 to 6
At the outset, the Court noted that the format in which Hensley produced his report—a facts section followed by three pages summarily listing his opinions—made it more difficult to discern the specific facts underlying each opinion. Alexander himself recognized that the report is not “artfully crafted.”
With respect to opinion 4, the Court concluded that it was inadmissible speculation. The report offered no evidence to support the opinion that the rudder was impaired at the time of the accident, except for the fact that it broke weeks after the accident. The jury could determine if this was the case, and counsel could argue the same. The Court also noted that the term “great possibility” was too vague and would confuse the jury as to the governing burden of proof—i.e., a preponderance of evidence.
With respect to opinions 5 and 6, the Court concluded that Alexander, as the proponent of the expert testimony, has not met his burden to show their admissibility because he does not show that the opinions are based on the record. Both opinions refer to the training that Deliphose did not have prior to the accident. However, as Defendants point out, there is no citation in the report to any document or record regarding Deliphose’s training prior to the accident.
Nor is there an indication that Hensley reviewed company records addressing the Deliphose’s training. Hensley’s opinions as to which training Deliphose should have had is necessarily speculative because the embedded assumption as to the training (or lack thereof) that he had is unsubstantiated.
Analysis of Opinion 7 and 8
With respect to opinion 7, the Court found that the opinion was admissible. Defendants asserted that the opinion was unsubstantiated because it misstated that Captain Smith had only visited dock no. 3 once before the accident. The Court determined that the accuracy of this statement was a matter for cross-examination at trial. Yet, Hensley’s opinion on how Captain Smith should have navigated the ship was deemed admissible, as it was based on his specialized knowledge and experience as a ship captain. Further, the opinion provided insight on a topic which the jury could not itself assess with common knowledge and experience.
With respect to opinion 8, the Court found that the opinion was speculative and therefore inadmissible. The opinion cited reasons as to why Captain Smith could have been distracted but cited no evidence to support the claim that he was, in fact, distracted. Such opinion had an insufficient basis in fact. Further, this is not the type of testimony that requires an expert as the jury is fully capable of discerning whether Captain Smith was distracted.
c.Opinions 9 through 15
Defendants asserted that opinions 9 through 15 were inadmissible because they either invaded the province of the jury or did not assist the factfinder. They argued that those opinions relate to issues discernible to the “common sense” of the jury. The opinions stated as follows:
Opinion 9 to 12
9. Reviewing the safety meeting documents submitted to me, there was not a single safety meeting on securing a tow to the dock, throwing a line, proper use of a spike/pike pole, and Alexander was not present for any of the safety meetings that were possibly being conducted.
10. In Intracoastal Tug and Barge, L.L.C.’s “Towing Safety Management System (TSMS)” there is a section on Job Safety Analysis (JSA) that is to be completed and filled out and signed, but on the night of Alexander’s injury, there was not a JSA performed by Captain Smith, even though it is required, and should have been done since Deliphose was inexperienced and new to the maritime industry. However, Captain Smith testified that he held a “toolbox talk” which only lasted a few minutes and did not cover all the topics of a JSA.
11. In the “TSMS”, the spike/pike pole is only mentioned one time, and that was for locking. There were no segments in the “TSMS” as to where it would give you details for securing a line to a piling, grabbing a line hanging off a piling, and the proper use of the spike/pike pole.
12. Intracoastal Tug and Barge, LLC. had the duty to exercise Safety Procedures & Precautions to their employees, but they failed to do so, resulting in Alexander’s injuries.
Opinions 13 to 15
13. Alexander testified in his deposition that he was initially going to catch their 1st line on the piling, and then flatten out on the dock. He went on to say that Captain Smith was on the wrong end of the barges, and was going to have to top the tow around. He continued by saying that when he reached down in front of the barge to retrieve the line that was hanging off the piling, Captain Smith started twisting the barges into the piling, instead of flattening out on the dock, which caused Alexander’s arm to be crushed. Alexander continued by saying that Captain Smith was holding the head of the barges against the piling, and had been doing so for approximately 5 seconds before he reached down to retrieve the line hanging off the piling.
14. If Captain Smith would have flattened the tow out on the dock, which would have brought the head of the barge off and away from the piling. Instead he chose to twist (turn) the head of the tow into the piling, which brought the stern away from the dock, thus catching and crushing Alexander’s arm and hand.
15. Captain Smith had the duty to exercise such reasonable care and skill as a prudent mariner would exercise under similar circumstances and conditions that existed the night of Alexander’s injury.
Analysis of opinions 9 to 15
The Court excluded opinions 9, 10, 11, and 13 to the extent they were factual recitations that did not form the basis of Hensley’s expert opinions. The opinions at issue are merely recitations of the facts and Hensley’s factual conclusions. On their own, they are plainly inadmissible because they do not serve to assist the trier of fact. At trial, the Court held that Hensley might recite these facts only if Alexander showed that these factual recitations and conclusions form the basis of Hensley’s admissible expert opinions.
With respect to opinion 12, the Court partly sustained the objection. The latter part of the opinion merely serves to “supply the jury with no information other than the expert’s view of how its verdict should read.” However, at trial, Hensley was permitted to testify about the relevant safety procedures and precautions, as well as Intracoastal’s compliance or noncompliance therewith.
The Court concluded that opinion 14 was admissible, though the opinion was somewhat cryptic because it included an incomplete sentence. However, the opinion plainly involved expertise in steering the ship, which is not within the common sense or experience of the jury.
With respect to opinion 15, the Court concluded that it was an inadmissible statement of the law, which did not assist the jury and encroached upon the role of the Court.
Held
The Court granted in part and denied in part the Defendants’ motion in limine to exclude the Plaintiff’s expert, Gary Hensley.
Key Takeaway:
The Court excluded certain opinions offered by Hensley because they were legal conclusions. An opinion which “would supply the jury with no information other than the expert’s view of how its verdict should read” is an unhelpful and therefore impermissible legal conclusion. The jury is fully capable of determining whether the vessel was indeed unseaworthy. That being said, Hensley’s specialized knowledge and experience as a ship captain provided valuable insights.
Case Details:
Case Caption:
Brandeon Alexander V. Intracoastal Tug And Barge Company, L.L.C.
Docket Number:
2:23cv2566
Court:
United States District Court for the Eastern District of Louisiana
This lawsuit stems from a motor vehicle accident. The two-vehicle collision occurred around 12:12 P.M. on January 4, 2023 in the left northbound lane of U.S. Highway 45, a divided four lane highway.
On the date and time in question, Plaintiff Kimberly Allcorn was driving a 2019 Kia Forte in the right lane of northbound traffic. She had been in Tupelo, Mississippi to pick up her car from a repair shop, and she intended to return to her residence in Corinth, Mississippi. Defendant Pamela Kay Beach was operating a 2023 Kenworth tractor-trailer truck that was owned by Western Express. Allcorn was traveling ahead of Beach on the roadway, both heading in the same direction.
After her vehicle began to exhibit additional problems, Allcorn decided to return to Tupelo. She switched from the right to the left lane of northbound traffic in an effort to proceed into a turn lane so that she could turn around and drive south back to Tupelo. Prior to the collision, Beach was traveling in the left lane at a higher rate of speed than Allcorn. When Allcorn switched into the left lane, Beach applied her brakes but a collision between the vehicles nonetheless occurred with the front of Beach’s tractor impacting the back of Allcorn’s car.
The posted speed limit in the area was 65 mph. The dash cam footage indicated that Beach was traveling 71 mph before she applied her brakes.
Allcorn filed suit against Beach and Western Express. She brought claims for negligence and negligence per se. On June 10, 2024, Allcorn designated Soan Chau as her expert in accident reconstruction. Chau prepared two reports summarizing his conclusions about the case. Defendants contended that the Court should prevent Chau from testifying because his opinions fell below the requisite threshold for expert testimony.
Accident Reconstruction Expert Witness
Soan Chau is a transportation consultant specializing in vehicular accidents with over twenty years of experience in analyzing cases involving passenger cars, tractor-trailers, motorcyclists, bicyclists, and pedestrians. He has analyzed over a thousand cases and has been intimately involved in scene preservation and documentation, surveying, reconstruction, simulation, animation, human factors and other transportation related matters.
Chau is also a certified Event Data Recorder (commonly known as “black box”) analyst and retriever, for both commercial vehicles and passenger cars.
In his initial report dated June 7, 2024, Chau opined that based on his calculations involving time, speed, and distance, Beachcould have avoided the collision if she had been traveling 65 mph when Allcorn initiated her lane change from the right lane to the left lane.
On July 8, 2024, the Defendants’ accident reconstruction expert witness, Benjamin Smith, prepared his written report. Smith identified errors in Chau’s calculations—namely, Smith opined that the calculations contained in Chau’s report equated to Beach’s speed being 76 mph, which is demonstrably false based on the dash cam footage indicating that she was traveling 71 mph. Smith ultimately concluded that based on his own calculations, even if Beach had been traveling at the posted speed limit of 65 mph, she could not have avoided the collision.
After Smith pointed out the errors in Chau’s calculations, Chau prepared a supplemental report. In that report, Chau corrected the mathematical errors that Smith identified. After doing so, Chau again concluded that if Beach had been traveling at 65 mph instead of 71 mph, she could have avoided the collision.
In the supplemental report, Chau reached the following conclusions:
1. Based on the materials that are available at the time of this report, it is safe to conclude that, had the tractor trailer been traveling at the speed limit of 65 mph:
a. There would have been approximately 84 feet between the tractor trailer and the Kia, when the lead vehicle (Kia) arrive [sic] at the same collision point
b. At an 84 feet distance between the vehicles, the tractor-trailer driver would have more time to slow down, make lane change, release accelerator, or brake
c. Kimberly Allcorn would also have entered the left turn lane by the time the tractor trailer arrive [sic] at point of collision
2. Because the tractor trailer was over the speed limit the entire 10 seconds (1.1 second braking) leading up to the collision, the Kia was not able to clear the left travel lane
Defendant’s Arguments
The Defendants emphasized three distinct arguments that they contended constituted bases for the exclusion of Chau’s testimony:
(1) that his opinions were not relevant and did not assist the trier of fact;
(2) that his opinions had “no methodology or principles”; and
(3) that his prior opinions in another case contradicted his opinions here.
Analysis
Relevance
Defendants argued that “Chau’s opinion is that Beach would not have been at the accident scene at the same time as Plaintiff if Beach had not been traveling 70 to 71 miles per hour. Because such an opinion is not valid under Mississippi law, the opinion is irrelevant and must be excluded.” The Defendants contended that multiple Mississippi federal and state court cases supported their contention that Beach’s speed is irrelevant.
The Court found that the Defendants mischaracterized Chau’s conclusions. The Court noted that Chau did not offer any opinion about Beach’s speed earlier in the trip. Instead, he reached conclusions as to whether Beach traveling the speed limit at the time of the collision and the seconds leading up to the collision would have enabled her to avoid the collision.
The Court found it difficult to see how the driver’s speed at the time of the collision, along with a concomitant conclusion that a slower speed would have enabled the Defendant to avoid the accident, lacked significant relevance in a case of this nature. The argument that speed was entirely irrelevant missed the mark. The Court rejected the Defendants’ argument.
Methodology
Initial Report
In his initial report, Chau provided the following information in a section described as “Video Analysis”:
a. currently only 10 seconds of footage before the collision was available
b. 8 seconds after collision
c. Impact occurred at +1.00
d. The 18 second Video Footage does not have evenly spaced time
e. At T= -1.80 seconds, Kia encroached into the left travel lane; the tractor-trailer was traveling at 71 mph
f. At IMPACT T= +1.00, Kia was approximately from auxiliary lane for median break; tractor trailer V=57 mph
g. The total distance traveled by the tractor trailer during 11 seconds (of video footage) prior to collision is approximately 1237 feet
h. Travel distance at 65 mph for 11 seconds is 1049 feet
Based on that information, Chau concluded that, if the tractor trailer had been traveling at the speed of 65 mph, “there would have been approximately 188 feet between the tractor trailer and the Kia, when the lead vehicle (Kia) arrive [sic] at the same collision point.” He additionally concluded that Allcorn “would also have entered the left turn lane by the time the tractor trailer arrived at point of collision.”
Supplemental Report
As noted above, the Defendants’ expert witness, Benjamin Smith, prepared a report that identified errors in Chau’s calculations.
Chau then prepared a supplemental report. In that report, the “Video Analysis” section contains much of the same information listed above but sub-sections (d), (f), and (g) were slightly different and provided as follows:
d. The 18-second video footage appeared to be at approximately 10 Hertz
f. At IMPACT T= +1.00, Kia was approximately 50 feet from beginning of auxiliary lane for median break; tractor trailer V=57 mph
g. The total distance traveled by the tractor trailer during 11 seconds (of video footage) prior to collision is approximately 1133 feet
The supplemental report then goes on to provide the following additional information:
11. Had the tractor trailer was traveling [sic] 65 mph for 11 seconds, there would be approximately 84 feet between the tractor trailer and the Kia Forte when Allcorn arrives that [sic] the same collision point (POC)
12. As seen in the video, this tractor trailer can decelerate from 70-57=13 mph in 1.1 second [sic], traveling a distance of approximately 102 feet
13. At 65mph [sic], the same decelerate [sic] from 65-52=13 mph in 1.1 second [sic], tractor trailer would travel a shorter distance of 94 feet
16. At collision, the Kia Forte’s front bumper appears to be within 20 to 30 feet of the beginning of the auxiliary lane
17. There was approximately 40 to 50 percent overlap between the tractor trailer and the Forte at impact
19. For every incremental seconds [sic] Beach was traveling at 65 mph beyond the 10 seconds (before braking), the incremental increase in distance would be (71-65)1.47=8.8 feet.
He ultimately reaches the same conclusion—that Allcorn would have been able to reach the left turn lane before the collision if Beach had been traveling at 65 mph prior to the collision..
Defendant’s Argument
The Defendants poked numerous holes in Chau’s conclusions. For instance, they noted that he provided no explanation for the change in his calculations from the initial report to the supplemental report. They also emphasized that in the initial report, Chau did not include a specific distance that Allcorn’s vehicle was from the turn lane at the time of the collision but that in page 3 of his supplemental report, he indicated a distance of 50 feet and then later referenced a distance of 20-30 feet. The Defendants ultimately contended that Chau was “simply putting numbers in his report to make it seem scientific.”
While the Court was cognizant of the Defendants’ concerns, it was noted that they concerned the weight of Chau’s testimony, not its admissibility. In his report, Chau included the formula that he used to reach his ultimate conclusion that Allcorn would have been able to reach the left turn lane ahead of Beach (and avoid the collision) if Beach had been traveling at a speed of 65 mph. The Defendants may disagree with those calculations, believe that they contain errors, and/or that they do not take into account all relevant information—the Court held that they will certainly be given an opportunity to cross-examine Chau on those topics at trial.
But to altogether exclude Chau at this stage of the proceedings would go too far, in this Court’s view. The Defendants have not shown that Chau failed to engage in reliable methodology in reaching his conclusions—just that they disagree with those conclusions.
Prior Testimony
Lastly, the Defendants pointed to testimony that Chau provided in a previous case and contended that his testimony here is contradictory to his conclusion in that case. This Court is concerned, however, with the methodology that Chau has employed in this case and whether his methodology is sufficiently relevant and reliable to be admitted into evidence. In other words, the Defendants will be given latitude to cross-examine Chau about his prior testimony; however, this is again an insufficient basis to completely exclude his testimony.
Held
The Court denied the Defendants’ motion to exclude the testimony of Plaintiff’s accident reconstruction expert witness, Soan Chau.
Key Takeaway:
The Court concluded that Chau’s testimony was admissible, primarily because his methodology met the basic threshold for admissibility, even though there were some inconsistencies in his calculations. The Court emphasized three key points in its reasoning:
Relevance: The Court rejected the Defendants’ argument that speed was irrelevant, noting that Chau’s analysis of how the speed limit would have affected the collision outcome was highly relevant to the case.
Methodology: While acknowledging the Defendants’ concerns about calculation changes and inconsistencies in Chau’s reports, the Court determined these were issues of weight rather than admissibility. The Court noted that Chau had included his formula and analytical process in his reports, providing a sufficient methodological foundation.
Prior Testimony: The Court found that potential contradictions between Chau’s current testimony and his testimony in a previous case were matters for cross-examination rather than grounds for exclusion.
Please refer to the blog previously published about this case:
This case arises from injuries Plaintiff Cherie Ferrell sustained on November 15, 2020 when she fell into a City of Atlanta water utility meter box. Ferrell alleged that the improperly secured water meter lid and the lack of “warning of the uneven pavement elevation change” caused her injuries.
On the morning of November 15, 2020, Ferrell went to 957 Ashby Grove, Atlanta, GA 30318 (property) to meet her son, Joshua Ferrell. It is undisputed that Cherie Ferrell and Joshua Ferrell owned the property at the time she fell.
Ferrell visited the property approximately five times prior to November 15, 2020 and more than five times after November 15, 2020. She had not observed a water meter at the property prior to her fall.
Several months before the incident, Joshua noticed a crack in the sidewalk near the water meter, but he did not contact the City regarding the sidewalk. Both Joshua Ferrell and Christopher Shiver noticed that the water meter was located below the sidewalk’s elevation. It is undisputed that the water meter box and the sidewalk are located within the City of Atlanta and the water meter was a part of the system of waterworks owned by the City of Atlanta.
Ferrell filed suit against the City asserting claims sounding in negligence.
Ferrell identified Christopher Shiver, P.E. as her expert engineer to opine on the condition of the water meter box, the water meter lid, and the sidewalk damage and elevation change. The City challenged Shiver’s testimony as unreliable and not based upon scientific theories, techniques, or principles.
Mechanical Engineering Expert Witness
Christopher Barrow Shiver performs engineering evaluations of equipment and systems involved in failures, accidents, fires/explosions and other abnormal incidents for claims and risk professionals, attorneys and products manufacturers and designers.
He has a degree in mechanical engineering from the Georgia Institute of Technology.
The City argueds Shiver’s opinions are unreliable because they are based on inaccurate temporal information — the date of the incident and when City workers accessed the water meter box and lid — and inaccurate topographical information of the residential neighborhood.
The Court held that Shiver’s opinions based on when the City accessed the water meter box in relation to November 15, 2020 are not wholly speculative: regardless of when Joshua Ferrell contacted the City, at no time did the City repair the sidewalk or water meter prior to Shiver’s February 22, 2021 inspection.
Shiver testified he “did a study of that [incident] area photographically, took measurements, you know, made observations, made notes.” He conducted his inspection on February 22, 2021 which included “visual observations, and [he] took a number of measurements, which [he] noted and are also documented in some of [his] photographs.”
Shiver’s Opinions are based on Inaccurate Timing and Incomplete Knowledge
The City is also critical that Shiver’s opinions are the result of applying legal principles such as the 1997 Georgia Accessibility Code and Federal 2010 ADA Standards for Accessible Design to a property’s neighborhood which was allegedly built in the early to mid-1900s. While the City argues that the codes and standards Shiver relied upon applies to construction or renovations after July 1997 and March 2012 and not a neighborhood build nearly a century prior, the Site Work Plan was developed and permitted in 2019. Shiver admitted he did not “have a full training in everything pertaining to the law, no, but [he does] in the specific areas that [he] practice[s] in and how to interpret those codes, standards, regulations, and ordinances with regards to how features are to be constructed, designed, and maintained.”
Even if Shiver’s opinions are based on inaccurate timing and incomplete knowledge of the neighborhood, the Court held that this does not mandate the exclusion of the opinion, but rather, presents a jury question as to the weight which should be assigned the opinion.
Shiver did not do any Reliable Testing during his February 22, 2021 Inspection
When Shiver went to the property he took photographs, measurements, and made observations. He used tape measurers, rulers, a pocket rod, and angular measurement instruments to measure slopes. He even took photographs of the water meter box. Shiver reviewed “City of Atlanta documentation regarding service activities to the water utility equipment at the subject address from 2008 through 2020.” Shiver spoke with Joshua Ferrell about the site conditions over time.
Ultimately, Shiver evaluated “the results of those measurements with regard to the standard of care and the actual written standards and codes that applied to this type of situation.” He detailed several deficiencies which he opined “could be expected to contribute to a pedestrian trip and/or loss of balance fall occurrence. On this basis, it is probably that deficient paved and unpaved walkway and city utility hardware conditions contributed to the fall incident reported for Cherie Ferrell.”
The Court concluded that Shiver’s measurements, observations, and testimony that he inspected the site and water meter lid were not mere guesses or wholly speculative. Thus, the Court held that the weight to be given to Shiver’s opinions “is a matter to be addressed by the trier of fact.”
Shiver’s testimony may be helpful to the jury
Lastly, the City argued that Shiver’s testimony should be excluded because it is not scientific, specialized, or technical and does not assist the trier of fact.
However, the Court found that Shiver’s testimony fits the pertinent causation inquiry and should be properly considered by the jury.
Held
The Court denied the Defendant’s Daubert motion to exclude the testimony of Christopher Shiver.
Key Takeaway:
Even if Shiver’s opinions are based on inaccurate timing and incomplete knowledge of the neighborhood, the Court held that this does not mandate the exclusion of the opinion. Moreover, Shiver’s measurements, observations, and testimony that he inspected the site and water meter lid were not wholly speculative. When Shiver went to the property he took photographs, measurements, and made observations. He used tape measurers, rulers, a pocket rod, and angular measurement instruments to measure slopes. He even took photographs of the water meter box.
Plaintiffs Weston D. McArtor (“McArtor”) and BEI Services, Inc. (“BEI Services”) (collectively, “Plaintiffs”), brought this civil action against the Defendants Valsoft Corporation Inc. (“Valsoft”) and Aspire USA, LLC dba Aspire Software (“Aspire”) (collectively, “Buyers” or Defendants”).
This action involved the sale of Plaintiffs’ business, Nexera, to Defendants. Prior to the acquisition, Nexera was in the business of “developing and providing data analytics software for performance measurement and benchmarking of service operations including, but not limited to, the printing industry.” Defendants, on the other hand, “specialize in the acquisition and development of software companies in vertical markets.”
In 2022, McArtor “began an extensive search to find a buyer to purchase and continue [Nexera’s] operations.” Ultimately, he found Valsoft and “initiated discussions wherein Defendants would purchase [Nexera], retain the employees and continue its operations.” These negotiations culminated in the parties entering into an Asset Purchase Agreement (“APA”). Under the APA, Defendants purchased Nexera, and the majority of BEI’s assets for $3.5 million. The APA also contained a provision allowing “BEI to receive future contingent payments and earnout payments if Nexera met certain performance goals for Defendants after the acquisition.” Additionally, BEI and Aspire entered into a Consulting Agreement…by which McArtor would serve as a part-time consultant on business related matters for a six-month term with a renewal option thereafter.
In the instant suit, Plaintiffs claimed Defendants breached the APA by fraudulently conspiring and intentionally underperforming, thereby thwarting BEI’s ability to receive the contingent and earnout payments. Further, Plaintiffs alleged that Defendants breached the Consulting Agreement by terminating McArtor as a post-acquisition consultant, less than six months after entering the Consulting Agreement. In sum, Plaintiffs asserted nine causes of action in both contract and tort.
Defendants filed a motion to strike Plaintiffs’ expert Brian Lappen.
Accounting Expert Witness
Brian Lappen holds a Master of Accountancy degree from the University of Wisconsin-Madison; he is a licensed CPA in Illinois and a Forensic & Valuation Principal with Plante Moran, an audit, tax, consulting, and wealth management firm. Lappen has 23 years of experience in public accounting, which includes “consulting with clients on a diverse array of forensic accounting engagements and litigation and dispute matters, including matters involving merger and acquisition disputes, damage calculations, and the application and interpretation of Generally Accepted Accounting Principles (“GAAP”) for the financial reporting of both private and publicly traded companies.”
Generally, Defendants argued that (1) Lappen’s opinions were not based on sufficient facts or data; (2) Lappen did not use reliable methodologies or reliably apply those methodologies; and (3) Lappen’s opinions would not assist the trier of fact.
Lappen has met the requirements of Rule 26(a)(2)(B)
The Court found that Lappen gave a satisfactory statement of all the opinions he will express, the bases/reasons for those opinions, the facts and data considered, and the exhibits that will be used to summarize or support his opinions.
Lappen has also satisfactorily set forth his qualifications. His curriculum vitae includes a list of all the publications he has authored in the past 10 years, and all the cases he has testified as an expert at trial or been deposed for in the last four years.
Finally, Lappen noted that he is being compensated “on an hourly basis at $525 per hour.” In reviewing Lappen’s expert report and attachments, the Court concluded that he has satisfied the requirements of Rule 26(a)(2)(B).
Lappen possesses the requisite “knowledge, skill, training, or education” required under Rule 702
First of all, Defendants did not directly question Lappen’s qualifications. In reviewing Lappen’s background, the Court concluded that he is qualified by his years of training, education, and experience.
Lappen’s opinions are sufficiently reliable
Lappen ignored certain facts and data when arriving at the conclusion that price increases post-acquisition had a material adverse effect
Defendants first argued that Lappen ignored certain facts and data when arriving at the conclusion that price increases post-acquisition had a material adverse effect. Defendants further argued that Lappen did not provide definitive proof that numerous customers left due to the purported rushed price changes.
However, Defendants conflate the appropriate standard; as noted, an expert does not need “definitive proof” to reach their conclusions. To the contrary, even if the Court thinks an expert’s conclusion is incorrect, it will be admissible so long as the expert’s opinions are based on reliable reasoning or methodology.
As Plaintiffs pointed out, Lappen based his opinion, at least in part, upon a spreadsheet that identified the reasons customers left. Moreover, Lappen and Defendants’ expert agreed that at least four customers left Nexera because of the rushed price increases.
Lappen’s opinions regarding firing Nexera personnel and cutting costs post-closing are unreliable
Defendants took issue with Lappen’s conclusion that Defendants’ decisions to fire certain Nexera personnel and cut costs post-closing was materially adverse to the operations of Nexera.
Once again, the Court found that Lappen’s opinions are supported by the record evidence—e.g., sworn testimony from Defendants’ employees, Bethany Sondeno and Nicola De Blasi.
Defendants argued that there were other explanations that could account for a decrease in business post-closing, and Lappen did not consider those potentialities.
However, as Plaintiffs correctly pointed out, “Lappen can evaluate the record evidence and accept or reject [it] in accord[ance] with what he deems credible based on his experience. Defendants cannot wish away record evidence damaging to their case any more than [they] can prevent Lappen from relying on the same as a basis for his opinions.”
The Court agreed and found that Lappen’s opinions regarding firing Nexera personnel and cutting costs post-closing are rooted in sufficient reasoning and methodology to meet the reliability threshold under Rule 702.
Defendants’ concerns with respect to the methodology, evidence, and data relied upon and not relied upon, go to the weight of the evidence, not admissibility
Finally, Defendants argued that Lappen’s opinion that “Defendants’ failure to cross-sell Nexera with another company…negatively affected Plaintiffs’ ability to meet the earnout and contingent payments” is methodologically flawed and fails to account for a software conflict that prevented cross-selling.
Once again, Defendants’ argument concerned the weight of the evidence, not its reliability. As far as the Court can surmise, in reaching his conclusions on cross-selling, Lappen relied upon the record evidence and his own experience. While Defendants clearly disagreed with his conclusion, the Court found Lappen’s opinion was sufficiently reliable under Rule 702.
Ultimately, the Court found that Lappen adequately set forth his opinions and the corresponding bases for those opinions based upon the inspection, review, and interpretation of facts and data; subsequently, he utilized his own personal knowledge, experience, and understanding of the industry to reach his opinions.
Lappen’s opinions will assist the trier of fact
In Cook v. Rockwell Intern. Corp., 580 F. Supp. 2d 1071 (D. Colo. 2006), it was held that “doubts about whether an expert’s testimony will be useful should generally be resolved in favor of admissibility unless there are strong factors such as time or surprise favoring exclusions.”
The Court must determine whether Lappen’s opinions will assist the trier of fact. In this case, the Court is the trier of fact. As such, the Court is afforded far greater leeway in determining whether expert testimony will assist the fact finder, i.e., itself. In this case, the Court found no such countervailing factors, and as such, the Court found that Lappen’s testimony and report will assist the fact finder.
Concerns about reliability are diminished in a bench trial
In a bench trial setting, it is appropriate for the Court to allow the expert to testify, and later make determinations about the admissibility, weight, and credibility of the expert’s testimony.
The fact that the Court will sit as the finder or fact alone is not dispositive of the inquiry of expert qualification; however, given that Lappen met the requirements of Rule 26 and Rule 702—and concerns about presenting unreliable or irrelevant testimony to the jury are effectively neutralized—the Court saw no reason why Lappen should be barred from testifying, nor why his expert report should be stricken. Further, the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system. Vigorous cross-examination, and presentation of contrary evidence are the traditional and appropriate means of attacking shaky but admissible evidence.
Held
The Court denied the Defendants’ motion to strike Plaintiffs’ expert Brian Lappen.
Key Takeaway:
In reaching most of his conclusions, Lappen relied upon the record evidence and his own experience. The Court found that Lappen adequately set forth his opinions and the corresponding bases for those opinions based upon the inspection, review, and interpretation of facts and data; subsequently, he utilized his own personal knowledge, experience, and understanding of the industry to reach his opinions. The absence of strong factors such as time or surprise favoring exclusions was noted.
Every year millions of workers set aside their hard-earned dollars to save for retirement. To protect the interests of these workers, Congress passed the Employee Retirement Income Security Act of 1974 (“ERISA”), to remedy “the great personal tragedy” caused by mismanagement of retirement plans that left workers with little to no savings.
This class action lawsuit is about whether American Airlines (“American”) and the American Airlines Employee Benefits Committee (“EBC” and, together with American, “Defendants”) breached certain fiduciary duties under ERISA when investing—or relying on others to invest—their employees’ retirement assets towards environmental, social, and governance (“ESG”) objectives. In response to Defendants’ ESG-focused investment practices, Plaintiff Bryan Spence, on behalf of the class members, asserts two causes of action under ERISA: (1) Defendants breached their duties of loyalty and prudence and (2) Defendants breached their duty to monitor.
Plaintiff argued that Defendants violated these fiduciary duties by mismanaging the retirement plan when they utilized “investment managers pursuing non-financial and non-pecuniary ESG policy goals through proxy voting and shareholder activism” — specifically, BlackRock Institutional Trust Company, Inc. According to Plaintiff, BlackRock pursues a pervasive ESG agenda that “covertly converts the [retirement] [p]lan’s core index portfolios to ESG funds.”
As a result, Plaintiff contended that BlackRock’s inclusion as an investment manager harmed the financial interests of retirement plan participants and their beneficiaries due to pursuing socio-political outcomes rather than exclusively financial returns.
Defendants filed a motion to partially exclude Plaintiff’s expert witness, J.B. Heaton.
Finance Expert Witness
James Breckenridge Heaton, III received Ph.D. and MBA degrees from respected programs at the University of Chicago Booth School of Business. He likewise graduated from the University of Chicago School of Law. His professional experience includes publishing extensively in several peer-reviewed journals on finance topics, including key issues in this case: asset management, index investing, shareholder activism, hedge fund activism, event studies and price impact in securities litigation, corporate finance, corporate governance, and ESG investing. Given his expertise in these subject areas, Heaton has also taught law and finance courses at law schools and business schools across the nation. Beyond his academic experience, Heaton practiced law at the litigation boutique Bartlit Beck LLP for nearly two decades and even served as a fiduciary member of Bartlit Beck’s 401(k) plan committee. During his fiduciary tenure, he monitored the 401(k) plan’s investment options and performance.
Defendants’ motion largely challenged Heaton’s methodology for calculating losses to the Plan as well as the economic value of a potential injunction. Defendants also sought exclusion of any testimony from Heaton about whether Defendants met their fiduciary obligations in accordance with then-prevailing standards and practices, as well as how BlackRock would have responded to a hypothetical proxy voting intervention.
It should be noted that the the standards for admitting expert testimony in a bench trial are lower than a jury trial.
Qualifications
Starting with Heaton’s qualifications, the Court held that his research and background fit squarely with Plaintiff’s theory of the case and his expert testimony is precisely what the Federal Rules of Evidence contemplate by requiring an “expert by knowledge, skill, experience, training, or education” who will apply that “specialized knowledge” to “help the trier of fact to understand the evidence or to determine a fact in issue.”
Due to his extensive education, research, and overall experience, it should be noted that Heaton has developed particular skills and specialized knowledge to help the Court—the trier of fact in this case—understand the evidence and determine facts in issue.
Relevance
Plaintiff has shown by a preponderance of the evidence that both the nature of Heaton’s testimony and purpose for which he offers it are relevant to key issues in this case, including whether BlackRock engaged in ESG activism through proxy voting and whether any losses occurred as a result. The Court held that such testimony can properly be applied to the facts at issue and will assist the Court with understanding the evidence. To the extent Heaton’s testimony could be viewed in any way as attempting to opine on whether Defendants qualified as ERISA fiduciaries or whether they breached their fiduciaries duties, those are questions of law for the Court to determine—not Heaton.
According to the Court, the closest any expert testimony may permissibly get to these legal questions is by offering an opinion as to whether a particular party’s conduct fell short of prevailing fiduciary practices. Because Heaton’s reports offered no such opinions and his testimony at trial focused on (1) “whether and how BlackRock engaged in ESG-driven proxy voting and shareholder activism, and (2) “whether that ESG-driven proxy voting and shareholder activism injured [P]lan participants,” there is no reason to exclude Heaton’s non-existent testimony regarding prevailing fiduciary standards.
Reliability
Plaintiff has proved by a preponderance of the evidence that Heaton’s testimony is reliable. The Court held that many of Heaton’s opinions are based on, among other things, his clear experience in asset management and research on shareholder activism. His opinions regarding BlackRock’s ESG activism do not require specific scientific support because Heaton relies on his personal observations, professional experience, training, and education. Given Heaton’s qualifications, the Court found him sufficiently qualified to opine on this topic. As to his opinions regarding the economic effects of BlackRock’s ESG activism on the Plan, the event studies used by Heaton are widely accepted. Even Defendants’ own expert uses the event study methodology. Courts across the country have also cited Heaton’s article regarding statistical power.
Although Defendants challenged the statistical significance of Heaton’s results and argued his methodology diverges from standard scientific practices, the Court held that these arguments are more properly applied to the weight of Heaton’s testimony rather than its admissibility.
While the Court takes note of Defendants’ arguments—particularly those regarding the reliability and relevance of Heaton’s expert testimony—these are not grounds for exclusion.
Held
The Court therefore denied Defendants’ motion to partially exclude and admitted J.B Heaton as an expert.
Key Takeaway:
The Court concluded that Heaton’s testimony is unquestionably relevant to this case and sufficiently reliable to permit admission. Instead, Defendants’ arguments (and any counter-expert testimony) bear on the weight assigned to Heaton’s testimony, which will matter when the Court addresses in a subsequent ruling the deferred issues of any losses suffered by the Plan and the appropriateness of an injunction.
