Plaintiff Craig Yoho filed a lawsuit on behalf of himself and a putative class of mineral interest owners alleging damages from subsurface interactions between ten pairs of horizontally drilled and hydraulically fractured “parent” and “child” wells. Specifically, he alleged that the drilling and completion of a child well caused the parent well to produce less hydrocarbons and financial harm by decreasing the amount of royalties that will ultimately be received over the life of the parent well.
Plaintiff’s expert Paul Dudenas issued a supplemental report in which he opined that ten (10) of the fourteen (14) wells included in the original class definition suffered a permanent decline in the Estimated Ultimate Recovery (“EUR”), a projection of future oil and gas production.
The drop in EUR for a given well is how Dudenas calculated the alleged damages. In addition to damages opinions, Dudenas also opined on the cause of the alleged decline in EUR: “My analysis assumed that the drop in production seen in each Parent well correlates with a frac hit from the drilling of a Child well.”
Dudenas also admitted that there could be many other reasons for the perceived drop in EUR—not just the completion of the Child wells.
Defendants asserted that Dudenas “improperly assumed what it is Plaintiff’s burden to prove: that Defendants’ actions in drilling ‘child’ wells caused damage.” Defendants stated that Dudenas “fatally conceded that many possible causes exist for the alleged production declines, but he did not consider them, rule them out, or even review the available data.”
Petroleum Engineering Expert Witness
Paul Dudenas has more than 50 years of diverse engineering, management and teaching experience. He has developed and coordinated reservoir depletion strategies and production optimization programs for both conventional and unconventional shale, oil and gas fields.
Defendants argued that Dudenas did not consider: whether there was (1) an intentional shut in for mechanical issues with the parent well unrelated to completion of the child well; (2) an intentional shut in of the parent well for market reasons; (3) an intentional shut in to ensure that operations on the surface well pad could be conducted safely; (4) a production decrease because of a pressure reduction in the parent well caused by depletion of the reservoir; (5) issues with scale build up on the parent well; (6) gathering system interruptions; or (7) pressure in the gathering system reduced the well’s production.
In addition, Defendants argued that Dudenas did not consider whether mitigating actions were taken by SWN Production. Defendants asserted that data concerning these other potential causes of EUR decline was made available to Dudenas; he just did not consider it.
Dudenas’ opinion offered a possible cause, but failed to consider other possibilities
Federal courts applying Daubert—including the Fourth Circuit—require the expert to consider other potential causes. The requirement that a causation expert consider and rule out other potential causes is not limited to medical experts.
The Court held that Dudenas’ opinion offered a possible cause, but failed to consider other possibilities. That there are alternative causes, and that Dudenas did not consider them, is undisputed. Dudenas admitted that other causes were possible but he did not consider them or rule them out.
For example, although each of the Parent Wells is surrounded by numerous Child Wells, not just the particular Child Well identified by Plaintiff, Dudenas did not consider whether these other Child Wells could have caused the alleged drop in EUR.
Beyond an analysis of each Parent Well’s Estimated Ultimate Recovery, other factors necessary for a causation inquiry include: mechanical and gathering system issues, location and timing of any Child Wells, the age of Parent Wells, and whether any mitigation techniques were employed.
To assess whether drilling of a Child Well was negligent, for example, this Court would need to consider factors such as market considerations at the time of drilling of the Child Well, the location and spacing of each Child Well relative to each Parent Well and safety requirements such as the drilling of another well on the same pad. The Court held that Dudenas did not take into account any of the considerations.
Held
The Court granted the Defendants’ motion to exclude the opinions of Plaintiff’s expert Paul Dudenas.
Key Takeaway:
Dudenas was of the opinion that the drilling and completion of the child well near Plaintiff’s parent well caused a drop in the production of minerals in the parent well. The Court held that while Dudenas’ opinion offers a possible cause, it fails to consider other possibilities.
Asking and determining what caused a decline is not a common question. To assess why there was a decline requires analysis of facts surrounding the operation of each of the Parent Wells and nearby wells. This is a complex and individualized analysis that is not susceptible to classwide proof.
Beyond an analysis of each Parent Well’s Estimated Ultimate Recovery, other factors necessary for a causation inquiry include: mechanical and gathering system issues, location and timing of any Child Wells, the age of Parent Wells, and whether any mitigation techniques were employed.
Case Details:
Case Caption:
Yoho Et Al V. Southwestern Energy Company Et Al
Docket Number:
5:23cv101
Court:
United States District Court, West Virginia Northern
This is a maritime personal injury case. Plaintiff Elvis Lopez alleged that on August 2, 2023, he was offloading cargo from the M/V Harvey Intervention in the scope of his employment with Harvey Gulf. While unloading the cargo, he tripped on the grating of the vessel’s stairs, which he alleges was “unstable because it was not braced and secured.” Lopez injured his knee, back, and neck in the fall. Harvey Gulf brought him to their company doctor, who performed surgery on the torn medial meniscus in his right knee.
Moreover, Lopez alleged that he complained of further pain in his neck and back, but that Harvey Gulf did not arrange for him to undergo MRIs of those areas. According to Lopez, Harvey Gulf released him to return to work too soon, and without obtaining a fit for duty release from the doctor. Lopez stated three causes of action in this case: (1) Jones Act negligence; and (2) general maritime negligence and unseaworthiness and (3) a claim for maintenance and cure.
Harvey Gulf moved to exclude the testimony of Lopez’s safety expert, Robert Borison. Borison provided a report in which he offered two opinions. First, he opined that Harvey Gulf allowed others to improperly install the fiberglass stair grating which Lopez tripped on. Specifically, Borsion opined that the installation of the grating did not meet American Society for Testing and Materials (“ASTM”) safety standards because the edges, where two panels of grating met, were not properly supported or fastened together. Second, Borison opined that Harvey Gulf failed to properly inspect the grating after its installation. He avers that testimony suggests that the grating moved or deflected when walked on, which should have put Harvey Gulf on notice that it was unstable and a tripping hazard.
Safety Expert Witness
Robert E. Borison possesses over 50 years of safety experience in industries related to the exploration, production, and transport of oil and gas, as well as the marine, general, and commercial sectors. His expertise encompasses safety issues across various settings, including production platforms, barges, structural and fabrication yards, as well as vessels/boats, commercial and industrial buildings, and building projects. Borison obtained his degree in Business Administration from Louisiana State University. He currently serves as the President of Total Safety Services, Inc.
To begin with, Harvey Gulf avers that Borison’s testimony should be excluded as it will not help the jury. It avers that “no expertise of any kind was required or used to render Borison’s opinions” and that “this incident falls well within the common knowledge of the jury.”
Lopez contended that Borison’s opinions are “based on specialized knowledge of ASTM standard specifications.” Harvey Gulf replied, arguing that Borison’s explanation of the ASTM safety standards is not helpful to the jury.
The Court notes that Borison has expertise in maritime safety matters. He has analyzed the application of ASTM standards to the facts of this case, which the Court finds would be beyond the knowledge of an average juror. Other distrct courts have indeed held that an expert’s knowledge and application of ASTM standards in a maritime trip and fall case is relevant and admissible.
The Court likewise finds that Borison’s testimony will likely be useful in explaining the ASTM standard and its application to the jury. The proper installation technique of fiberglass grating on a vessel is not within an average juror’s common knowledge. Thus, although this is a tripping case, the Court found that it is more complex than other tripping cases where Borison’s testimony was excluded.
The Court is not persuaded that the jury can use their “common sense” to determine whether the fiberglass grating was properly installed, with the correct use of grid overlap and fasteners.
Held
The Court denied Harvey Gulf’s motion to exclude Robert Borison’s testimony.
Key Takeaway:
Borison has expertise in maritime safety matters and his testimony will likely be useful in explaining the ASTM standard and its application to the jury. He has also analyzed the application of ASTM standards to the facts of this case.
Plaintiffs Jennifer Le Pape (“Mother”) and Frederic Le Pape (“Father”) (collectively, “Parents”), on behalf of their child, Alexandre Le Pape (“Alex”), and Alex, individually, (collectively, “Plaintiffs”) bring intentional discrimination claims under the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”) against Defendant Lower Merion School District (the “District”), alleging that the District failed to take appropriate steps to ensure that communications with Alex were as effective as communications with others and failed to provide Alex with the appropriate auxiliary aids and services necessary to afford Alex an equal opportunity to participate in and enjoy the benefit of various school services and programming.
Alex is a nonspeaker. He learned to communicate using a letterboard and communication support person (“letterboard”). The District precluded Alex from using a letterboard and communication partner at school.
The District filed objections to the qualifications of Plaintiffs’ anticipated expert witnesses—Dr. William Young, Dr. Mary Stephens, and Vanessa von Hagen—to opine on the efficacy of the letterboard and communication partner as a means of communication for Alex.
Young, Stephens, and Von Hagen did not submit expert reports in this case, as Plaintiffs identified these three witnesses pursuant to Federal Rule of Civil Procedure 26(a)(2)(C) as experts who have not been retained or specially employed to provide expert testimony.
Young has provided both in-patient and out-patient treatment for Alex’s migraines since May 2019. Stephens has been Alex’s primary care doctor since Spring 2019, and she has also interacted with Alex “through Alex’s contribution to the education of doctors concerning neurodiversity” while von Hagen served as the lead clinician on Alex’s home behavior team for six years, beginning in 2012.
Neurology Expert Witness
William Young is board-certified in neurology, psychiatry, and headache medicine, and he is the director of the Jefferson Headache Center of Jefferson University Hospitals.
Mary M. Stephens is board-certified in family medicine and is the director of Jefferson University Hospitals’ Continuing Care Program. She has “extensive experience . . . providing medical services to neurodiverse individuals in medical settings.”
Vanessa von Hagen is a board-certified behavior analyst with more than 13 years of experience implementing, planning, and developing client-specific programming and interventions based on the principles of applied behavior analysis.
Plaintiffs intended to call Young to testify that “Alex’s communication with the letter board and communication partner is effective communication for Alex” or “at a minimum,” to testify “as to why he deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of his medical treatment.”
The District argued that Young is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because he has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further contended that Young’s alternative opinion as to why he determined Alex’s communication through Spelling to Communicate (S2C) to be sufficiently reliable for purposes of his medical treatment, which Plaintiffs proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”
Aside from his interactions with Alex using the letterboard and communication partner, Young does not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, augmentative and alternative communication (“AAC”), facilitated communication, or other facilitator-dependent communication methods used with minimally verbal or non-verbal autistic individuals like Alex. Accordingly, the Court found that Plaintiffs have failed to establish by a preponderance of the evidence that Young has the necessary expertise to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.
Mary Stephens
Plaintiffs intended to call Stephens to testify that “Alex’s communication with the letter board and communication partner is effective communication for Alex and that his communications on it are his own” or “at a minimum,” to testify “as to why she deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of [her] medical treatment.”
As it argues with respect to Young, the District similarly contended that Stephens is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because she has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further argued that Stephens’ alternative opinion as to why she determined Alex’s communication through S2C to be sufficiently reliable for purposes of her medical treatment, which Plaintiffs again proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”
Since Stephens does not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, AAC, or facilitator-dependent communication techniques, the Court found that Plaintiffs have failed to establish by a preponderance of the evidence that Stephens has the necessary expertise to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.
Vanessa von Hagen
Plaintiffs intended to call von Hagen to testify that “Alex’s communication with the letter board is effective, that he communicates his wants, needs, and thoughts with it, and that he could not do so without it” or “at a minimum,” to testify “as to why she deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of her clinical work with him.”
The District argued that, like Young and Stephens, von Hagen is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because she has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further contended that von Hagen’s alternative opinion as to why she determined Alex’s communication through S2C to be sufficiently reliable for purposes of her clinical work, which as with Young and Stephens, Plaintiffs proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”
The Scope of von Hagen’s Clinical Experience is Not Clear
While von Hagen does not appear to have any education or research experience in the fields of speech-language pathology, AAC, or facilitator-dependent communication techniques, the scope of von Hagen’s “clinical experience . . . concerning communication strategies for persons with autism” is not clear from Plaintiffs’ pretrial memorandum or letter brief, von Hagen’s curriculum vitae, or von Hagen’s testimony at the due process hearing.
The Court cannot yet ascertain whether von Hagen’s clinical experience is sufficient to qualify her to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.
Held
The Court held that Young and Stephens will not be permitted to opine on the efficacy of the letterboard and communication partner as a communication method for Alex, which includes any testimony about their determinations that Alex’s communication with a letterboard and communication partner is sufficiently reliable for purposes of their medical treatment of Alex. It reserves ruling on the District’s objection to the qualifications of von Hagen to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.
Key Takeaway:
Defendants argued that Young, Stephens and von Hagen lacked the qualifications to opine on the efficacy of the letterboard and communication partner as a means of communication for Alex.
While the scope of von Hagen’s experience was not clear, both Young and Stephens did not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, augmentative and alternative communication, or facilitator-dependent communication techniques.
Please refer to the blog previously published about this case:
On October 25, 2024, Petitioner Prasanna Sankaranarayanan filed a petition seeking the return of the parties’ minor son, S.A., to his habitual residence. The petition claims that Respondent Dhivya Sashidhar unlawfully took S.A. from Singapore to the United States on October 14, 2024. On November 1, 2024, Sashidhar was served with the summons and complaint in Redmond, Washington.
Hague Convention cases are typically expedited, with a six-week resolution period recommended. In this case, the Court held a telephone conference with the parties on November 22, 2024, and scheduled an evidentiary hearing for January 6, 2025.
After the conference, the Court issued a scheduling order that outlined deadlines for filings and disclosures, as proposed by the parties. However, the parties later disagreed on whether the deadlines applied to both sides.
On December 27, 2024, Sashidhar filed a motion to exclude Petitioner’s psychology expert witness, Peter Favaro. Sashidhar argued that Sankaranarayanan had violated the scheduling order by disclosing the expert witness after the deadlines for such disclosures had passed.
Psychology Expert Witness
Peter Favaro is a psychologist licensed in the state of New York and has been in private practice since 1986. His area of expertise is psychology within court-related matters. Since 1986, he has been privately hired or court-appointed to thousands of cases to provide evaluation and expert opinion in matters involving domestic violence, custody disputes, and child abuse. He also offers court-related services such as supervised visitation, family mediation, anger management, family therapy, civility training, and parenting coordination. Additionally, he has been appointed or hired on cases involving the 1980 Hague Child Abduction Convention.
In its motion, the Respondent sought to exclude the testimony and report of Peter Favaro, Petitioner’s psychology expert witness.
On December 10, 2024, Petitioner’s counsel emailed Respondent’s counsel to reveal that they had retained Favaro as a rebuttal expert. However, Petitioner had not disclosed Favaro in their initial filings. Following this, Respondent arranged for the child to meet with Favaro on three consecutive days for an evaluation.
Respondent argued that Favaro should be considered an affirmative expert, not just a rebuttal expert, as Petitioner claimed. Respondent pointed to several factors to support this argument:
The report’s title did not suggest it was a rebuttal report
The content included definitive conclusions, and
The opinions went beyond simply addressing the Respondent’s expert reports.
In fact, according to the Respondent, Favaro’s report claimed that the Respondent may have been exerting undue influence over the child and potentially mistreating the child.
Additionally, Respondent asserted that the disclosure of Favaro’s report on December 23, 2024, was untimely and caused significant prejudice. The late disclosure left Respondent with insufficient time to retain a rebuttal expert to challenge Favaro’s conclusions. Furthermore, Respondent was unable to depose Favaro before the Court’s deposition deadline, further hindering its ability to respond effectively.
2. Petitioner’s Position
Petitioner argued that they complied with the Court’s scheduling order, as the dates and language were meant for Respondent to disclose experts and serve expert reports. Petitioner opposed the motion to exclude, stating that the order did not set specific dates for Petitioner’s affirmative or rebuttal experts. Therefore, Petitioner claimed they had not missed any deadlines.
Petitioner further maintained that Favaro was solely a rebuttal expert, a child forensic psychologist retained to address Respondent’s affirmative defenses of grave risk and mature child. Petitioner emphasized that Favaro’s report was properly disclosed on December 23, 2024.
B. Analysis
1. The Scheduling Order
The Court needed to determine whether the expert disclosure deadline applied to both parties. The parties interpreted the scheduling order differently. The order required Respondent to serve expert disclosures by December 2, 2024, and initial expert reports by December 9, 2024. However, the order did not specify deadlines for Petitioner’s affirmative expert disclosures. It only mentioned that both parties were to serve rebuttal expert reports by December 20, 2024.
The minute entry accompanying the order outlined the schedule, including expert disclosures, initial reports, and rebuttal reports, but it did not address the timing for Petitioner’s disclosures. The entry and the order were silent about rebuttal expert disclosure.
Petitioner’s attempt to distinguish between the scheduling order’s text and the minute entry was viewed as an attempt at gamesmanship. The Court found the minute entry to be an integral part of the order. If Petitioner found any confusion, they could have sought clarification instead of using the discrepancy for tactical advantage. The Court found the order’s deadlines to be clear and applicable to both parties.
Petitioner’s claim that they did not know if experts were needed after December 2, 2024, was deemed disingenuous. During the November telephone conference, Petitioner’s counsel repeatedly discussed experts. Respondent’s counsel had also indicated that an expert had been retained and was ready for disclosure.
The Court concluded that the expert disclosure deadline applied equally to both parties. Petitioner was aware of Respondent’s expert well before the disclosure deadline, as discussed in the telephone conference. The Court then considered the disclosures for both affirmative and rebuttal experts.
1. Affirmative Expert Testimony
Although Petitioner argued that all of the testimony was purely rebuttal, the Court was not fully convinced. The 20-page expert report was detailed and appeared to offer opinions and conclusions beyond those necessary for rebutting the affirmative defenses. For instance, Favaro’s opinion that Respondent’s “parental gatekeeping” amounted to maltreatment of the child did not address the grave risk or mature child defenses. As a result, the Court determined that the scope of Favaro’s report went beyond rebuttal testimony. Therefore, Petitioner had untimely disclosed Favaro as an affirmative expert witness.
2. Rebuttal Expert Testimony
Since the scheduling order did not specify deadlines for disclosing rebuttal experts, the Court considered the timeframes typically outlined in the Federal Rules of Civil Procedure. According to these Federal Rule of Civil Procedure 26(a)(2)(D)(ii), a rebuttal expert may be disclosed within 30 days after the other party’s expert disclosure, provided the evidence is intended solely to contradict or rebut the other party’s evidence on the same subject. However, this guideline offered limited guidance in this case due to the tight deadlines in expedited Hague Petition cases. Given the silence in the scheduling order and the inapplicability of the Federal Rules, the Court turned to other authorities to resolve the issue.
Persuasive cases from this District and elsewhere suggested that the party with the burden of proof, in this case, the party asserting an affirmative defense, should disclose its expert testimony before the opposing party discloses an expert to rebut it. The Court referenced several cases supporting this approach.
Based on this guidance and the lack of clarity in the scheduling order, the Court concluded that Petitioner’s disclosure of Favaro on December 10, 2024, shortly after Respondent served affirmative expert reports, was appropriate. Therefore, the Court determined that Petitioner had timely disclosed Favaro as a rebuttal expert.
3. Sanctions
Petitioner has failed to demonstrate that disclosure for any affirmative testimony was substantially justified or harmless. To the extent Favaro’s opinions exceed the scope of Respondent’s affirmative defenses, the late disclosure is harmful to Respondent’s ability to prepare for the evidentiary hearing. The Court will not infer that the violation is harmless from Respondent not deposing one expert to be definitive that Respondent would not have deposed Favaro if properly disclosed as an affirmative expert witness.
Similarly, in light of the lengthy discussions about experts during the telephone conference, Petitioner cannot reasonably maintain that the knowledge about experts did not arise until December 2, 2024. Therefore, the Court concluded that sanctions are warranted because Petitioner has not shown that the discovery violation was substantially justified or harmless.
The Court observed that Favaro’s testimony is important to resolving this matter on the merits, but the Court still finds that sanctions are warranted in this matter. Accordingly, the Court will limit Dr. Favaro’s testimony and opinions in the report solely to rebuttal opinions. “[A] rebuttal expert cannot offer evidence that does not contradict or rebut another expert’s disclosure merely because [the expert] also has also offered some proper rebuttal [evidence].”
Held
The Court granted in part and denied in part Respondent’s motion to exclude Petitioner’s expert witness Peter Favaro’s testimony.
It excludes any of Favaro’s testimony or portions of the report that exceed the scope of rebuttal testimony for Respondent’s affirmative defense.
The Court directed Petitioner to provide Respondent an articulation of Favaro’s rebuttal testimony by January 4, 2025 at 12:00 pm (PST).
Key Takeaway:
Portions of Peter Favaro’s report exceeded the scope of permissible rebuttal testimony and the Court deemed the disclosure of his affirmative expert opinions untimely. While the Court accepted Favaro’s rebuttal testimony, it excluded his opinions on matters unrelated to the grave risk or mature child affirmative defenses—such as allegations of “parental gatekeeping” and maltreatment.
Case Details:
Case caption:
Sankaranarayanan V. Sashidhar
Docket Number:
2:24cv1745
Court:
United States District Court for the Western District of Washington
Elevation placed two orders for, and Icon delivered two shipments of, iHealth COVID-19 Antigen Rapid Test Kits (“Test Kits”) to Elevation pursuant to those orders. Elevation paid Gypset for the first shipment but refused to pay Icon for the second. In March, Elevation’s counsel sent a letter purporting to reject both the first and second shipment—the first because the Test Kits were delivered 45 days after payment and bore “extremely short expiration dates” and the second because the Test Kits were delivered “without order or authorization” and also bore “extremely short expiration dates.”
Icon filed this instant collection action against Elevation Health. Elevation Health responded by asserting counterclaims against Icon and third-party claims against Gypset, which arranged for the first shipment.
Basically, Elevation intended to proffer expert testimony from purported FDA regulatory expert Evan Parker Phelps, an attorney. Phelps’ expert report indicates that he intends to rely primarily on two documents (1) a December 22, 2021 U.S. Food and Drug Administration Letter of Authorization to iHealth Labs, Inc. (“iHealth”) authorizing the COVID-19 Antigen Rapid Tests (the “December 21, 2021 iHealth Authorization Letter”) and (2) an Authorized Distributor Agreement between iHealth and Icon for COVID-19 Antigen Home Test, effective February 1, 2022 (the “February 1, 2022 Distributor Agreement”).
Icon argued that Phelps’ testimony should be excluded because he is not qualified to offer the opinions in his expert report, his opinions are not based on reliable methodology, and his opinions are impermissible legal conclusions.
Law & Legal Expert Witness
Evan P. Phelps is a seasoned FDA legal practitioner specializing in medical device regulation with additional experience with issues related to U.S. Food and Drug Administration (FDA) regulation of pharmaceutical products, Human Cell and Tissue Products (“HCT/P”), and electronic products, among others.
Based on these documents and Phelps’ experience as a lawyer specializing in FDA regulations, he offers the following opinions: (i) neither Icon nor Gypset was an authorized distributor that could lawfully distribute the Test Kits to Elevation Health prior to February 1, 2022; (ii) neither Icon nor Gypset lawfully could have been in possession of Test Kits prior to February 1, 2022; (iii) communications from Icon and Gypset indicating possession and authority to distribute Test Kits to Elevation Health prior to February 1, 2022 are not consistent with the lawful distribution of Test Kits; and (iv) Elevation Health should not have distributed the Test Kits, which were potentially counterfeit, without confirming their authenticity.
According to Icon, Phelps’ experience as a lawyer specializing in FDA regulations is not sufficiently related to his opinions regarding whether Icon was an authorized distributor of iHealth test kits prior to February 2022 as his opinions are not based on FDA regulations and the documents on which he relied did not support his conclusions. Elevation disagreed and pointed to an FDA regulation that requires iHealth to identify authorized distributors to the FDA as reliable support for his opinion that Icon and Gypset could not lawfully have distributed or possessed iHealth test kits before February 2022.
Legal Conclusions
Icon also argued that Phelps’ testimony should be excluded because each of his opinions offer improper legal conclusions as to whether Icon and Gypset acted “lawfully” or were “legally prohibited from further distributing the tests.” Seemingly conceding that Phelps’ opinions are legal conclusions, Elevation argued that they are permissible because they are not the “ultimate legal conclusions” in the case since there is no cause of action for violating FDA regulations.
But Elevation pointed to no case law that states that an expert may offer legal conclusions as long as they are not the ultimate legal conclusions of the case.
The Court held that Phelps’ proposed opinions are legal conclusions on their face and improperly invaded the province of the jury to apply the law to the facts. Phelps stated that: (i) neither Icon nor Gypset could “lawfully distribute” or “lawfully” posssess iHealth test kits by a certain date; (ii) that Icon and Gypset’s statements “indicating the possession and authority to distribute” prior to that date were thus false; (iii) that the test kits that were distributed were “potentially counterfeit” and as such, Icon and Gypset were “legally prohibited from further distributing the tests without first confirming their authenticity.
Testimony only qualifies as an “expert opinion” if it “concerns matters that the average juror is not capable of understanding on his or her own.” Here Phelps’ determination that Gypset and Icon were not legally authorized to possess iHealth test kits is largely based on the dates of two documents—one authorizing iHealth test kits themselves and the other apparently permitting Icon to distribute those kits. The Court held that Elevation’s argument does not require complex analysis of these documents beyond the ken of the average juror.
Held
The Court granted Icon’s motion to exclude the testimony of Evan Phelps.
Key Takeaway:
To begin with, one of the fundamental requirements of Rule 702 is that the proposed testimony assists the trier of fact to understand the evidence or to determine a fact in issue. Testimony only qualifies as an expert opinion if it concerns matters that the average juror is not capable of understanding on his or her own. Moreover, a district court may commit manifest error by admitting expert testimony where the subject matter of the expert’s testimony is not beyond the ken of the average juror.
On September 6, 2018, Rochester Police Department (“RPD”) officers Jeremy Nellist (“Nellist”) and Joshua P. Kelly (“Kelly”) traversed through the backyard of Plaintiff Erin Gursslin’s (“Plaintiff”) property on St. Paul Street, in the City of Rochester (the “City”), during the course of executing a search warrant at a location three properties north of Plaintiff’s home. On their return trip, Nellist and Kelly encountered Plaintiff’s foster dog, Nina, whom they shot and killed. Plaintiff thereafter sued the City, Nellist, Kelly, RPD Commander Fabian Rivera (“Rivera”), and RPD Lieutenant Aaron Springer (“Springer”) (collectively “Defendants”) pursuant to 42 U.S.C. § 1983 for having unreasonably searched the curtilage of Plaintiff’s property, for having unlawfully seized Nina, and for having unlawfully seized Plaintiff, all in violation of the Fourth Amendment.
Defendants filed a motion to preclude Plaintiff from using James Crosby (“Crosby”) as an expert in this matter.
In his expert report, Crosby offers 23 opinions, which Defendants have separated into five categories: (1) the Fourth Amendment (opinions 1, 3, and 7); (2) SWAT tactics and operations (opinions 2, 4, 5, 6, 8, and 9); (3) “dogs, dog behaviors, and law enforcement encounters with dogs” (opinions 10, 11, and 13); (4) firearms (opinion 12); and (5) training and municipal liability (opinions 14-23).
Law Enforcement Expert Witness
James Crosby holds a Ph.D. in Veterinary Medical Science from the College of Veterinary Medicine, University of Florida, with specialization in Veterinary Forensics; [and] a Master of Science degree from the College of Veterinary Medicine, University of Florida, with specialization in Veterinary Forensics. He is also a Certified Behavior Consultant—Canine-Knowledge Assessed. Crosby served as a police officer with the Jacksonville Sheriff’s Office from 1977 to 1999, “performing twenty-two years of active service.” During his career Crosby served as “a Patrolman, a Sergeant, and a Lieutenant.”
He is a Certified Animal Control Officer in the state of Florida and “served as the Animal Control Division Manager for Bay County, Florida, from February 2008 to September 2010.” He also served as “the acting Chief of Animal Care and Protective Services for the City of Jacksonville, Florida from March through December of 2016.” Crosby has “trained police departments in the proper and effective use of less- and non-lethal force; recognition of canine body language, behavior, and dog bite risk analysis; and methods for safe engagement with domestic dogs across the United States.”
Defendants argued that Crosby “should be precluded from testifying as an expert in all five of the proposed areas, mainly because he lacks expertise in the majority of them. His opinions also lack factual support, are not reliable, and seek to tell the jury what to conclude.” The Court considers these arguments below.
1. Fourth Amendment Opinions (Opinions 1, 3, and 7)
Defendants first argued that Crosby should be precluded from offering opinions 1, 3, and 7, regarding the Fourth Amendment and Nellist and Kelly’s entry into Plaintiff’s yard. The Court need not reach this argument, because opinions 1, 3, and 7 are all related to Plaintiff’s claim for an unreasonable search of her curtilage, on which the Court has already granted summary judgment to Defendants. This portion of Defendants’ motion is accordingly denied as moot.
2. SWAT-Related Opinions
Defendants next argued that Crosby has “no SWAT experience or training” and that his opinions on SWAT-related issues are not based on “sufficient facts on which to make a reliable opinion.” Plaintiff argued that this argument is a “red herring” because Crosby “is not offering an opinion on specialized SWAT tactics or procedures,” but instead is focusing on “the straightforward issue” of “why Officers Nellist and Kelly chose to trespass through Gursslin’s yard after the conclusion of the SWAT operation when they could have simply exited through the vacant lot.”
Opinion 2
Opinion 2 reads in relevant part: “Any reasonable officer in 2018 would have known that because exigent circumstances did not exist to justify entry into the yard, they were required to request permission prior to entering the yard, or at least provide a warning to the home’s occupants of their presence.”
“In deciding whether expert testimony will be helpful to the fact-finder, the Court must determine whether the testimony ‘usurps either the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it.’”
The Court held that Opinion 2 not only runs afoul of this prohibition but also offers a legal opinion on issues that this Court has already considered in ruling on the motion for the first summary judgment.
Opinion 4
Opinion 4 reads: “Even as overwatch sniper units, Nellist and Kelly should have been equipped with and prepared to use less-lethal tools should they have encountered any person or animals not posing a threat of death or serious injury during their passage to and from their position, especially considering that an uninvolved person or homeowner could reasonably be expected to have confronted them, not recognizing they were police officers.”
The Court agrees with Defendants that this opinion falls outside the scope of Crosby’s expertise. Crosby has never been a member of a SWAT team nor has he ever supervised a SWAT team.
Plaintiff has not demonstrated by a preponderance of the evidence that Crosby has any basis of knowledge regarding the proper equipment and training for a SWAT team’s overwatch sniper units.
Opinion 5
Opinion 5 relates to Nellist and Kelly’s prior “scout” of Plaintiff’s back yard, and reads in relevant part: “In short, they did nothing in the planning phase to learn whether Nina or any other dog resided at the property, despite having the time and opportunity to do so. Nellist and Kelly’s failure to conduct a proper scout or do anything whatsoever to learn whether a dog resided at the property was unreasonable under the circumstances and constituted a violation of good and accepted police practices and professional standards of care.” The Court did not find that this opinion is specifically related to SWAT tactics or organization, as opposed to planning for the possible presence of a dog in connection with the execution of a search warrant, which is a topic in which Crosby does have expertise.
Further, while Defendants argue that it is “demonstrably false” that Nellist and Kelly took no steps to investigate whether a dog resided on the property, that argument is based solely on the fact that they conducted a scout, which Crosby acknowledges in his expert report. The Court held that it is a factual dispute, not a reason to exclude expert testimony.
Opinion 6
Opinion 6 reads:
“Nellist and Kelly demonstrated a lack of situational awareness when they reentered Gursslin’s back yard while exfiltrating from their Final Operating Position. Prior to entering Gursslin’s back yard, they should have recognized that there was an additional car parked in her driveway that was not there when they arrived; that there were lights on inside of the house that were not on when they arrived; and that the motion sensor light on the side of the house was on. At this point, good and accepted police practices and professional standards of care required that they radio to their supervisors to learn whether anyone was home and whether it was safe to enter the yard.
At the least, they should have recognized the heightened possibility that they might encounter a person or a dog in the yard, and paused and developed a plan for what to do if they encountered a person or a dog in the yard. Their failure to do so was unreasonable under the circumstances and contrary to the actions of any reasonably and properly trained police officer and constituted a violation of good and accepted police practices and professional standards of care.”
Like opinion 5, opinion 6 is not SWAT-specific, but relates generally to procedures after execution of a search warrant. Further, while Defendants attacked the factual basis for this opinion, their citations did not support their argument. The Court will not preclude opinion 6 on this basis.
Opinion 8
Opinion 8 relates to Springer and Rivera’s supervision of the execution of the HRSW. Specifically, opinion 8 concluded that Springer and Rivera did not properly supervise and oversee the SWAT operation because “the uniformed police officers stationed in front of Gursslin’s property—Herbert McClellan and Jonathan Kent—failed to appreciate that Nellist and Kelly were exfiltrating from their final operating position by walking through Gursslin’s back yard” and “[i]f Springer and Rivera had properly informed McClellan and Kent, then they could have warned Gursslin on her arrival at the home that police officers were using her backyard as part of the SWAT operation and prevented her from going into her back yard on the morning of the incident.”
The Court agreed with Plaintiff that this opinion is not specifically related to SWAT tactics, as opposed to general law enforcement practices when accessing citizens’ properties during the execution of a search warrant.
The Court further rejects Defendants’ contention that opinion 8 lacks a sufficient factual basis. Defendants argue that “neither Officer McClellan nor Officer Kent saw Plaintiff or anyone the morning prior to the dog being shot.” But Plaintiff testified that she and her boyfriend went up to a police officer in a car and asked him what was going on. And McClellan only testified that he did not remember anyone coming to his car and speaking to him. Again, this is a factual dispute, not a basis to preclude expert testimony. The Court will not exclude opinion 8.
Opinion 9
Finally, opinion 9 is that “Nellist and Kelly had no plan for the use of less-lethal or non-lethal force regarding encountering Nina, or indeed any dog, in this incident. . . . In 2018, no reasonable and well-trained officer would fail to make and implement such a plan—especially considering that they had at least one week prior to the incident to conduct such an investigation—and the lack of planning directly led to the needless shooting of Nina. Failure to recognize the availability of, or to attempt to use less- or non-lethal methods in their encounter with Nina constituted objectively unreasonable action by Nellist and Kelly.” This opinion has nothing to do with the specifics of SWAT-related operations, and is within the scope of Crosby’s expertise. The Court will not preclude opinion 9.
Defendants also make a general argument that Crosby’s opinions regarding “good and accepted police practices” and “professional standards of care” are unreliable. The Court is unpersuaded by this argument, which cites no case law. Crosby’s opinions are based on his experience and training.
The Court is also unpersuaded by Defendants’ argument that opinions 5 and 9 contradict one another, such that Crosby is not a reliable witness. Defendants argue that it is inherently contradictory to acknowledge that Kelly and Nellist scouted Plaintiff’s property but to also opine that they took no steps to ascertain whether a dog resided at the property. But in reviewing Crosby’s expert report, it is clear that his view is that during the scout, Kelly and Nellist took no steps to ascertain whether a dog resided at the property. There is no inherent contradiction.
Opinions on Dog Behavior and Dog Encounters (Opinions 10, 11, and 13)
Defendants next sought to preclude Crosby’s opinions on dog behavior and dog encounters, arguing that: (1) expert testimony on this topic is not needed; (2) Crosby seeks to replace the jury and not to aid it; (3) Crosby has not adequately defined “good and accepted police practices”; and (4) Crosby has not reliably applied his principles to the facts of this case. The Court is unpersuaded by these arguments.
As to the first argument, while lay people may be generally familiar with dogs, the Court finds that the jury would benefit from expert opinion on police tactics for dealing with pet dogs.
Defendants’ second argument fails as a matter of law. Defendants argue that Crosby “should also be precluded, because he impermissibly decides a jury question.” But Federal Rule of Evidence 704(a) expressly provides that “[a]n opinion is not objectionable just because it embraces an ultimate issue.” This is not a basis to preclude Crosby’s testimony.
The Court has already rejected Defendants’ third argument regarding “good and accepted police practices,” and that analysis applies with equal force here. Finally, Defendants’ fourth argument is nothing more than a disagreement with Crosby’s conclusions regarding Kelly’s placement of his rifle bag between himself and Nina. Specifically, Crosby has criticized Kelly for throwing the bag down in front of Nina instead of holding it between himself and the dog. Defendants contended that this is an improper conclusion by Crosby regarding the use of a barrier versus a shield, but this is merely their interpretation of Crosby’s testimony. Defendants are free to cross-examine Crosby on this topic at trial. The Court will not preclude Crosby from testifying regarding dog behavior and dog encounters.
Firearms Opinion (Opinion 12)
Defendants contended that Crosby’s opinion 12 relates to firearms and that he is not an expert in this topic. Defendants further argued that this opinion is unsupported by facts.
Opinion 12 states:
“Nellist and Kelly were, by their own admission, firing without regard for any potential collateral risk to person(s) that might have been behind Nina in the yard or in Gursslin’s home. Nellist and Kelly never checked for other occupants in the yard or in the home, nor did they contact Plaintiff to ascertain whether there were other animals or persons within the home lawfully. They fired their sidearms at Nina as Gursslin was in the backyard just several feet behind Nina.
They also fired while facing towards the back of Gursslin’s home, where Gursslin’s downstairs neighbors were present in their apartment, and her boyfriend was present in the upstairs apartment. Nellist and Kelly should have recognized that a distinct possibility existed that a human or other animal subject could have been within the yard and the home and thereby needlessly and recklessly exposed to injury or death from one or more of the bullets fired.”
The Court disagrees that this is an opinion about firearms, as opposed to an opinion about when it is appropriate for a police officer to use his firearm and what he should take into consideration before doing so. Crosby’s law enforcement experience and training qualifies him to opine on a police officer’s use of his firearm.
Defendants’ Factual Attacks on this Opinion lack Merit
Defendants claimed that it is “possible” that Nellist and Kelly were not facing Plaintiff’s house when they shot Nina, but it is equally possible that they were. They also claimed that it is “misleading to state that the officers Nellist and Kelly fired their sidearms at Nina as Ms. Gursslin was in the backyard just several feet behind Nina when neither Sgt. Kelly nor Officer Nellist saw Plaintiff prior to shooting the dog or knew anyone was in the yard.” But this argument actually reinforces Crosby’s conclusions. Kelly and Nellist did not ascertain whether there were human beings present in the yard before opening fire, causing them to shoot bullets only feet from Plaintiff, who was doing nothing more than standing in her own yard. The Court will not preclude opinion 12.
Training and Municipal Liability Opinions (Opinions 14-23)
Finally, the Court considered Defendants’ argument that Crosby should not be permitted to opine on issues related to municipal liability. Defendants contend that Crosby is not an expert on municipal liability and that he improperly attempts to take the role of the jury. The Court has carefully reviewed opinions 14 through 23 and finds that only opinion 14 can fairly be said to be about municipal liability as a legal concept, as opposed to the adequacy of the RPD’s training regarding use of force in dog encounters.
The Court does agree with Defendants that opinion 14, which states, “In my professional opinion, the City of Rochester exhibited deliberate indifference by failing to provide any of the free and effective trainings that were widely available and easily accessible regarding how to safely and lawfully interact with dogs,” goes beyond the scope of Crosby’s expertise. “Deliberate indifference” is—as discussed further below—a legal concept that has a specific meaning in this context, and Crosby has no particular expertise in whether or not that definition has been satisfied. The Court will preclude opinion 14 on this basis. But, according to the Court, opinions 15 through 23 do not suffer from similar infirmities.
Defendants have also made specific factual arguments about opinions 19 and 21. As to opinion 19, in which Crosby “states that the City should have taken notice of the demonstrably effective trainings on dog encounters and provided those effective trainings to RPD officers,” Defendants argue that Crosby “does not know how many dogs shootings occurred in each year or if the annual numbers decreased after the City gave” a training in 2014. But Defendants have not provided the Court with the portions of Crosby’s deposition transcript that they claim support this argument.
Crosby has significant experience in training law enforcement officers how to interact with dogs
Opinion 21 is about the training provided by the RPD to its officers, and includes the opinion that “best practices require at least a four-hour training.” Defendants argued that this opinion is outside Crosby’s expertise, because he “does not have advanced education or training in teaching, course development, pedagogy, etc.” However, the Court held that Crosby has significant experience in training law enforcement officers how to interact with dogs, and his lack of formal training in teaching and course development does not prevent him from being an expert in this field.
Held
The Court granted in part and denies in part Defendants’ motion to preclude Plaintiff’s expert witness James Crosby.
Key Takeaways:
The jury would benefit from Crosby’s opinion on police tactics for dealing with pet dogs. Most jurors have no law enforcement experience, and are unlikely to be familiar with the circumstances in which law enforcement are likely to encounter pet dogs, or what options they have available to them in such circumstances.
Crosby has significant experience in training law enforcement officers how to interact with dogs, and his lack of advanced education or training in teaching, course development and pedagogy does not prevent him from being an expert in this field.
However, Crosby has never been a member of a SWAT team nor has he ever supervised a SWAT team. Plaintiff has not demonstrated by a preponderance of the evidence that Crosby has any basis of knowledge regarding the proper equipment and training for a SWAT team’s overwatch sniper units.
For over 10 years, Fisher-Price sold a product called the Rock ‘n Play Sleeper (RnP). The Plaintiff, Ameena Brown, argued that the defective design of the RnP was to blame because her infant son, A.B., had died from sleeping in it. The dangers of this inclined sleeper product were widely debated in this case.
It all started when A.B.’s mother, Plaintiff Ameena Brown, was gifted a secondhand Rock ‘n Play for A.B. During naptime and overnight sleep, Ameena would place A.B. supine in the RnP, which she kept in the living room.
On January 15, 2018, the day before A.B.’s death, there was nothing out of the ordinary about A.B.’s health or demeanor. At approximately 6:00 AM the next morning, Ameena awoke and went to check on A.B. A.B. was found dead in the Rock ‘n Play.
Plaintiffs sought to introduce Darlene Calhoun‘s testimony to show: (1) the design of the RnP increased the risk of harm; (2) A.B. died from suffocation after rolling onto his side and pressing his face against the side of the RnP; (3) A.B. could have expected a normal life expectancy despite his premature birth; and (4) A.B. experienced conscious pain and suffering before death. Calhoun’s report also touches on the topic of rebreathing.
Defendants contended Calhoun: (1) lacked the requisite qualifications to opine on cause of death; (2) had no basis to conclude the RnP’s design is defective aside from the opinion of other experts in this case; (3) bases her conclusions on “mere association” as opposed to “reliable scientific opinions;” and (4) relied on a theory of increased risk causation which is impermissible under Pennsylvania law.
Pediatrics Expert Witness
Darlene A. Vasbinder-Calhoun, D.O. is a retired Neonatalist-Perinatalist. She received her D.O. degree in 1991 from the Ohio University College of Osteopathic Medicine. She is board certified in pediatrics. Calhoun describes her experience as “clinical practice in Neonatal-Perinatal Medicine,” working in Neonatal intensive care units, and conducting academic research.
During her deposition, Calhoun stated “[m]y opinion is that [A.B.] died from suffocation related to the compression of his mouth and nose against the fabric of the Rock ‘n Play Sleeper.”
Calhoun formed that opinion based on her review of A.B.’s medical records, the witness statements of A.B.’s mother, various studies Calhoun cited in her report, and her own training and experience.
Calhoun May Not Offer General Causation Testimony
Defendants asserted that Calhoun does not qualify as a biomechanical engineer, or a forensic pathologist, and so cannot opine as to design flaws or cause of death. Further, Defendants contended that Calhoun relies upon “mere association”—the fact A.B. was found deceased in the device—rather than reliable scientific opinions, testing, or data demonstrating causation.
Calhoun’s general causation opinion “is simply saying that here the Rock ‘n Play can cause death.” The Court held that a review of Calhoun’s report as it pertains to general causation shows little analysis based upon her own expertise. Although she bases her general causation opinion on the type of “information reasonably relied upon by experts in the particular field,” she does not add any of her own context as to how the design of the RnP can cause death.
Defendants further contended Calhoun “does not have any experience related to product safety testing” which would render her discussion of Fisher-Price’s testing procedures and recall decisions admissible. The Court held that Calhoun has never conducted tests on infant sleep products, and her discussion about whether Fisher-Price knew the RnP posed a threat to infants amounts to a recounting of alleged facts generated without her particularized skills and education. Admitting this testimony may also mislead the jury and would permit Calhoun to testify about recalls and test procedures of which she has no expertise to testify.
Calhoun’s Specific Causation Testimony Is Admissible
Though Calhoun did not formally label her opinion as the result of a differential diagnosis, Plaintiffs contended that is precisely the methodology Calhoun utilizes in her report. A differential diagnosis involves the doctor creating a list of possible causes of death, and then working through the medical records to exclude each of those potential causes until only one reasonable explanation remains.
In her report, Calhoun considers as possible causes of death, and then excludes: Sudden Infant Death Syndrome; Gastroesophageal Reflux Disease; complications from A.B.’s Atrial Septal Defect; complications from A.B.’s Nasogastric Feeding Tube; and A.B.’s respiratory conditions. She also considered A.B.’s developmental age, his preference to turn to his right side, and the way he was found in the RnP the morning of his death.
Calhoun provides her reasoning, based on her training and experience, for concluding that she can rule out the alternative causes of death she considered. She then concludes, based on those exclusions and the information available to her, that A.B. died of asphyxiation. Further, she concludes due to A.B.’s developmental delays that he would have been unable to roll onto his side, absent the design of the RnP facilitating his roll. Calhoun created a list of possible causes of A.B.’s death, and her report explains why she excluded each alternative.
Defendants raise several specific issues with Calhoun’s methodology, but these issues, according to the Court, relate to the credibility of her opinion, not its admissibility.
For instance, Defendants’ argument based on Calhoun’s inability to know exactly what transpired during the time between Brown placing A.B. in the RnP and his death amounts to an argument against the credibility of Calhoun’s diagnosis, but not its admissibility.
Calhoun Cannot Rely On Increased Risk Of Harm To Establish Causation
Defendants contended Calhoun impermissibly relied on an “increased risk” standard, which Pennsylvania law prohibits in product liability cases. Calhoun’s ultimate conclusion stated, “[i]t is my opinion that the design of the Rock ‘n Play Sleeper increased the risk of harm for and was the direct cause of [A.B.’s] asphyxiation, physical pain and suffering, and death.”
After extensive argument, Defendants conceded their position with Plaintiffs as they “understood counsel to be acknowledging that they were not trying to substitute increased risk for proof of causation.” Here, Calhoun offered a basis for specific causation which goes beyond her reliance on increased risk. Moreover, Defendants have conceded that Plaintiffs are not attempting to substitute increased risk for causation. Accordingly, the Court held that Calhoun may not testify that increased risk establishes causation.
Held
The Court held that Calhoun’s training and expertise qualifies her to opine on the specific cause of death in this case. She may not provide an opinion on general causation based on the design of the RnP. She may not opine that increased risk establishes causation.
Key Takeaway:
The Court concluded that Calhoun’s general causation opinion, which primarily restates the opinions of other experts, lacked analysis rooted in her own expertise and risked misleading the jury; therefore, it must be excluded. However, her specific causation opinion was deemed admissible, as it relied on a reliable differential diagnosis methodology, which considered and ruled out alternative potential causes of death based on her training and experience. The Court also added that while Calhoun may testify that the RnP’s design increased the risk of harm, she cannot assert that increased risk alone establishes causation for A.B.’s death under Pennsylvania law.
Please refer to the blog previously published about this case:
Kyle and Annaleah Justice raised claims of negligence and strict liability against Defendants Bestway (USA), Inc. and Rural King under the Missouri Wrongful Death Statute. Plaintiffs’ claims arose from the drowning death of their minor daughter, E.M.J., in an above-ground pool on August 3, 2019.
Plaintiffs designated Dianna Sullivan as an expert regard the impact of the death on Plaintiffs’ mental health; Peggy Shibata as an expert regarding the pool’s safety and design; and Dr. John Fletemeyer as an expert in aquatics.
Bestway (USA), Inc. filed motions to exclude the opinions of Sullivan, Shibata and Fletemeyer.
Mental Health Expert Witness
Dianna Sullivan graduated from Nova Southeastern University with a Master’s degree in Psychology. She has been in public and private practice for 35 years. Her areas of specialty are family, marital, anxiety, depression, adjustment disorders, grief, bereavement, and chemical dependency.
Peggy Shibata holds a bachelor’s degree in mechanical engineering as well as master’s degrees in both mechanical and biomedical engineering. Shibata specializes in mechanical engineering and biomechanics, with particular expertise in accident reconstruction, rigid body dynamics, computational modeling and analysis, human injury tolerance, and injury analyses associated with transportation, recreational activities and equipment, and falls.
John Fletemeyer has a bachelor’s degree in anthropology and physical education from Ball State University. He holds post-graduate degrees from the University of Wisconsin and the University of Cape Town in South Africa. He has a doctoral degree from Florida International University with an emphasis on coastal science and education. Fletemeyer has “been continuously involved in aquatics for the past 50 years and [has] several professional certifications” related to lifeguarding, first aid, and water rescue. He is currently the executive director of the Aquatic Law Institute and the Aquatic Law Symposium Program.
Sullivan, a Licensed Mental Health Counselor (“LMHC”), conducted phone interviews with Plaintiffs Kyle and Annaleah Justice “to evaluate the psychological process and circumstances that will help [her] understand the duration[,] severity and of [sic] symptoms (if any), to arrive at a diagnosis (if any), and to provide an expert opinion about the grief and bereavement process experienced by the family of the deceased . . . .”
According to Sullivan, both Kyle and Annaleah Justice suffered from Post traumatic stress syndrome (“PTSD”), Major depressive disorder (“MDD”) and complicated grief and bereavement syndrome as a result of the sudden and tragic death of their daughter. Annaleah Justice was also diagnosed with an anxiety disorder.
Bestway USA challenged the admissibility of Sullivan’s opinions because she did not perform any formal diagnostic tests on Plaintiffs before arriving at her conclusions.
Bestway USA asserted that Sullivan’s testimony is about Plaintiffs’ grief and bereavement, a form of damages that is specifically precluded under Missouri’s wrongful death statute. To sum it up, Sullivan’s opinions are not the result of reliable principles or methods and would not be helpful to the jury.
Analysis
The Court found that Sullivan “followed the same procedures that [she] use[s] in [her] practice when conducting an intake” and she specifically followed the “Shea (1998) protocol.” Sullivan did not rely on the Plaintiffs’ previous mental health records because, as she explained, there were none. The report she has produced applies her analysis of Plaintiffs’ symptoms to the diagnostic criteria provided by the DSM-5, a procedure that further supports the finding that she used a reliable methodology to form her opinions in this case. Moreover, Sullivan’s testimony is relevant and admissible for the jury to assess “the reasonable value of the services, consortium, companionship, [and] comfort” that resulted from Plaintiffs’ loss of their daughter.
Bestway USA argued that Sullivan’s opinions did not address the loss of companionship, comfort, counsel, and support and instead focus explicitly on grief and bereavement. The Court will not take such a limited view of the overall value of Sullivan’s opinions in assisting the jury. However, Sullivan will be required to express her opinions within the context of the damages permitted by the statute and may not expressly testify regarding grief or bereavement.
The Shibata Motion
Shibata planned to testify to the following:
Opinions 1-6
1. According to the recorded statements, police investigation, and medical findings, 31-month-old [E.M.J.] was found face down in the subject Bestway above ground pool after apparently using the nylon strap and side of the pool to climb into the water.
2. The nylon strap and climbability of the subject pool wall resulted in [E.M.J.] gaining access to the pool water.
3. Access to filled pools by small children leading to drowning is a well-known hazard in the pool industry as evidenced by standards and guidelines related to pool barriers and publications authored by the safety community related to preventing child drownings.
4. The circumferential horizontal strap on the subject pool creates a foothold, reducing the vertical distance to the top of the pool, and making the pool wall noncompliant withthe requirements for a conforming barrier.
5. The subject pool design is defective and unreasonably dangerous due to the climbability of the pool wall.
6. The instructions provided in the subject pool’s owner’s manual do not clearly inform the user that the pool wall is not a conforming barrier and that a separate conforming barrier other than the pool wall must be provided by the user.
Opinions 10-15
10. Bestway (USA) failed to perform any hazard identification for the subject pool design, prior to, or after, the sale of the subject pool.
11. Bestway (USA) failed to perform any risk assessment for the subject pool design, prior to, or after, the sale of the subject pool.
12. Bestway (USA) failed to perform any testing to identify potential design defects related to the climbability of the subject pool wall prior to, or after, the sale of the subject pool.
13. In the subject pool owner’s manual, Bestway (USA) failed to properly and explicitly instruct the Justice family and other users that since the nylon strap can be used as a foothold, an additional barrier to the subject pool is required.
14. Bestway (USA), through the language provided in the owner’s manual, gave the Justice family a false sense of security and implied to them that they did not need to construct an additional barrier surrounding the subject pool because the pool wall itself could be a barrier.
15. Bestway (USA) knew, or should have known, that the pool wall was not a proper barrier because of the nylon strap foothold.
Analysis
Bestway offered several arguments why Shibata’s opinions should be excluded, including that they are “not based on sufficient facts or data, . . . do not have a reliable basis in accepted principles and methods, nor has she applied those principals to the specific facts of this case, . . . and would not serve to help the jury reach a decision in this matter.”
As an initial matter, because the Court has granted summary judgment for Bestway USA as to Plaintiffs’ negligence claims, some of Shibata’s opinions are no longer relevant.
In particular, opinions relating to Bestway USA’s duty and breach are no longer at issue. Shibata’s Opinions 3, 10, 11, 12, and 15 relate directly to the issue of Bestway USA’s alleged duty or knowledge of the pool’s potential dangers. Because Plaintiffs will no longer need to establish these elements of negligence, these opinions will no longer be helpful to the jury and could mislead the jury as to Bestway USA’s duties.
Opinion 1
The Court held that Opinion 1 is inadmissible because it is a simple statement of fact that does not require expert testimony.
Testimony from witnesses at the scene and the conclusions in the Warren County Sheriff’s Report can establish the facts included in Shibata’s Opinion 1 without her testimony. While Shibata may testify regarding her reliance on those statements and perhaps the conclusions in the Report in forming her conclusions, she cannot testify to them in the form of opinion.
Opinion 2
Plaintiffs have failed to establish by the preponderance of the evidence that Shibata’s Opinion 2—that the nylon strap and the climbability of the pool wall resulted in E.M.J. gaining access to the pool—is based on sufficient facts and data and is the result of a reliable application of a methodology. Shibata is an expert in engineering, biomechanics, product safety, and accident reconstruction, among other topics related to human factors. To form this opinion, Shibata appeared to have relied on the testimony of other witnesses, the police and incident reports following E.M.J.’s death, E.M.J.’s medical records, and reports from saferproducts.gov indicating other instances of toddlers climbing into or attempting to climb into other similarly designed pools.
She did not testify that these are the types of facts and data she would generally rely upon to form opinions about biomechanics, engineering, product safety, accident reconstruction, or human factors analysis. While she stated that she “employed the scientific method as a framework,” Plaintiffs have not come forward with any other evidence of how Shibata applied the scientific method to the issues of this case.
Shibita evaluated E.M.J.’s climbing abilities using only her intuitive understanding of children’s general climbing abilities, and she has been unable to identify a scientific methodology she used to arrive at her conclusion.
Opinion 5
The Court held that Opinion 5 is admissible because Shibata has an expertise in engineering and is offering her engineering opinion regarding the safety of the pool’s design. She is also an expert in product safety generally and can testify using this experience that this pool’s design, specifically as it relates to the nylon support strap, is unreasonably dangerous. Shibata reviewed relevant safety standards regarding above-ground pools and has concluded that the nylon support strap makes the pool’s wall climbable and therefore ineffective as the sole barrier preventing young children from entering the pool.
Opinions 4, 6 and 13
The Court held that Opinion 4 pertains to whether the nylon strap constitutes a foothold and therefore makes the pool wall a non-conforming barrier. Opinions 6 and 13 are substantially the same in that they both state that the pool’s owner’s manual failed to inform consumers that the pool wall included a foothold via the nylon support strap, thus making it a non-conforming barrier and requiring the consumer to construct an additional barrier around the pool to make it safe.
Plaintiffs have met their burden to establish that that Opinions 4, 6, and 13 are admissible. According to the Court, Shibata has extensive experience in the field of product safety analysis. As stated above, in assessing whether the pool’s wall was a conforming barrier or whether the nylon support strap created a foothold, Shibata read several sets of pool safety standards and determined that the measurements of the pool and pictures of the nylon support strap indicate that the nylon support strap was a foothold and therefore the pool’s wall was not a conforming barrier.
Opinion 14
The Court held that Opinion 14 about the pool’s warnings that gave Plaintiff’s a “false sense of security and implied to them that they did not need to construct an additional barrier” will be excluded because it is directly contradicted by other testimony.
Shibata, during her deposition, was confronted with Justice’s deposition testimony where he testified that he and Flake had discussed putting an additional fence around the pool. She admits that she had previously reviewed this testimony and that Justice, in this testimony, described a desire to put an additional barrier around the pool. Shibata did not explain how she could have reliably arrived at her conclusion that Justice had a “false sense of security . . . they that did not need to construct an additional barrier” when he testified to his intention to construct such a barrier. Additionally, there is no evidence in the record that Justice or the Flakes read the pool’s warnings.
The Fletemeyer Motion
Fletemeyer offered the following opinions:
Opinions 1-6
[1.] The fatal drowning of [E.M.J.] was preventable.
[2.] The proximate cause of this fatal drowning was the nylon support strap surrounding the pool’s perimeter. Being only 14.5 inches from the ground, it conveniently provided [E.M.J.] with a foot hold allowing her to climb over the pool’s edge and into the water[.]
[3.] If not for the nylon strap, a toddler of [E.M.J.]’s size and age wouldn’t have been able to gain access into the pool and drown.
Considering that Kyle Justice, the father of the victim, had earlier removed the ladder from the pool, this was the only possible way the victim entered the pool.
[4.] Detective Jeff Doerr observed a child’s footprint near the nylon strap. He concluded that the footprint likely belonged to [E.M.J.] and that the nylon strap was how she managed to get into the pool.
[5.] Without the ladder and without the nylon strap. It would not have been possible for [E.M.J.] to climb over the edge of the pool and drown.
Consequently, any allegation by the defense that the victim entered the pool differently is not supported by the facts.
[6.] The nylon support strap circling the pool represents a serious design flaw responsible for making the pool inherently dangerous especially to young children the victim’s age.
Opinions 7-9
[7.] The fact that there has been similar fatal drownings and near drownings prior to this one where children used the nylon strap as a foot support, this indicates a wanton and conscious disregard for the safety of this product by its manufacturer.
[8.] There are none of the contributing events mentioned earlier in this report that would indicate that this was a passive drowning event. As such, my opinion is that this was an active drowning and consequently, [E.M.J.] experience [sic] horrific pain and suffering before becoming unconscious, progressing from clinical death to biological death.
[9.] Kyle Justice, the father, states in his deposition . . . that earlier he had removed the ladder from the pool. Consequently, he reasonably believed that the pool was safe.
Analysis
Bestway USA argued that Fletemeyer’s opinions should be excluded because they are not based on sufficient facts or data, are not the result of a reliable application of a methodology to the facts, and would not help the jury. Bestway USA stated that Fletemeyer failed to personally conduct an investigation into the scene of the drowning, and therefore does not base his opinions on sufficient facts or data.
Opinion 7
The Court held that Fletemeyer’s Opinion 7, that the pool’s manufacturer acted with wanton and conscious disregard for the safety of the pool, will be excluded because it is no longer relevant to the issues in this case. As stated above, the Court has already granted summary judgment in favor on Bestway USA on the issue of Bestway USA’s alleged negligence and as to punitive damages. Because this opinion relates specifically to the issue of Bestway USA’s knowledge of the pool’s danger—and thus to punitive damages—it will be excluded.
Opinion 1
The Court held that Opinion 1 will be excluded because it is simply not helpful to the jury. While it is likely true that this tragic drowning was preventable, nothing about this opinion will help the jury to decide an issue in this case.
Opinions 2 and 6
The Court held that Fletemeyer’s Opinions 2 and 6 will be excluded. In Opinion 2, Fletemeyer intended to testify that the pool’s nylon support strap was the “proximate cause” of E.M.J.’s death. Similarly, in Opinion 6, Fletemeyer intended to testify that the inclusion of the nylon support strap in the pool’s design renders the design defective. Fletemeyer is an expert in drowning, not pool design or human factors. He has no expertise that permits him to form opinions regarding the design of the pool or the ability of E.M.J. to enter the pool via the nylon support strap.
Additionally, Opinion 6 can also be excluded because it is unnecessarily cumulative. Shibata, an engineering and product safety expert, intended to testify regarding the pool’s design and the nylon support strap and its potential as a foothold. Having Fletemeyer provide essentially the same testimony would be unnecessarily cumulative, especially given that he lacks the necessary expertise to render such an opinion.
Opinions 3 and 5
The Court held that Opinions 3 and 5 are essentially the same opinions and will both be excluded because they are outside of the realm of Fletemeyer’s expertise. In them, Fletemeyer has concluded that the pool’s nylon support strap acted as a foothold by which E.M.J. was able to access the pool, and that this was the only way E.M.J. could have accessed the pool while the ladder was removed.
As already stated, Fletemeyer does not have any special training or experience related to accident reconstruction or human factors that would permit him to arrive at this conclusion. It appears that Fletemeyer arrived at these conclusions by simple inference based on the Warren County Sheriff’s Report and Justice’s deposition testimony. Such testimony will not be helpful to the jury because the jury could also make the same inference when confronted with the Report and Justice’s testimony.
Opinion 4
The Court held that opinion 4 will be excluded because it is not an opinion but is instead a statement of facts that can be established by other means. Again, what is contained the Warren County Sheriff’s Report and the opinion of Detective Doerr is not a matter for opinion testimony.
Opinion 9
The Court held that Opinion 9 will be excluded for two separate reasons. First, like Opinion 4, the first sentence of Opinion 9 regarding what Justice testified to will be excluded because it is simply a statement of fact that requires no expert opinion. Second, whether Justice believed the pool was safe after removing the pool’s ladder is not relevant to the remaining issue in this case. Only two of Plaintiffs’ claims remain against Bestway USA: strict liability design defect and strict liability failure to warn. Justice’s subjective belief regarding the pool’s safety after he removed the ladder is not relevant to either of these claims and will not help the jury to decide any remaining issues. The Court excluded Fletemeyer from testifying to his Opinion 9.
Opinion 8
Plaintiffs have established by the preponderance of the evidence the relevance and reliability of Fletemeyer’s Opinion 8, so the Court denied Bestway USA’s Motion as to this opinion. Fletemeyer is qualified through his extensive experience to testify regarding drowning events and the physiological process of drowning. Fletemeyer arrived at his conclusion through analysis of the drowning event and by consulting his previous, extensive study of the drowning process, a field in which he has published extensively.
Held
The Court denied the Defendant Bestway USA’s motion to exclude the opinions of Dianna Sullivan.
The Court granted in part and denied in part the Defendant Bestway USA’s motion to exclude the opinions of Peggy Shibata.
The Court granted in part and denied in part the Defendant Bestway USA’s motion to exclude the opinions of John Fletemeyer, PhD.
Key Takeaway:
Despite her extensive experience in the field of product safety analysis, Shibata’s opinions about the pool’s warnings was excluded because it was directly contradicted by other testimony. Moreover, Fletemeyer intended to testify that the inclusion of the nylon support strap in the pool’s design renders the design defective. The Court held that Fletemeyer is an expert in drowning, not pool design or human factors. Having Fletemeyer provide essentially the same testimony as Shibata would be unnecessarily cumulative.
Please refer to the blogs previously published about this case:
On October 10, 2023, Kathleen Loveall (Plaintiff) initiated this wrongful death action on behalf of her husband, James Loveall, naming the Government as a defendant under the Federal Tort Claims Act. The Court established September 23, 2024, as the deadline for Loveall’s expert designations. Loveall requested extensions of this deadline three times, without opposition from the Government, and the Court granted each request. The final deadline for expert designations was set for November 13, 2024.
On that date, Loveall designated Rajesh Bhagat, M.D., and Christopher Bourean, M.D., as an expert witnesses. The Government subsequently moved to strike these expert designations, asserting noncompliance with the expert designation requirements of Federal Rule of Civil Procedure 26(a). Loveall did not file a response, and the time to do so has expired.
Internal Medicine Expert Witnesses
Rajesh Bhagat
Dr. Rajesh Bhagat graduated from University College of Medical Sciences, University of Delhi, India (1983). After two years as an intern and houseman at Safdarjang Hospital, Delhi, he joined Vallabhbhai Patel Chest Institute (VPCI), University of Delhi. As a PGY 1-3, he graduated with a Diploma and an MD in Respiratory Diseases with honors. He served another three years as a Registrar at the same institution, where his research interests included ABPA and Asthma. This research led him to Dr. Cockcroft at the Royal University Hospital in Saskatoon, Canada. As a Research Fellow of the Saskatchewan Lung Association, he worked on the detrimental effects of regular use of beta-2 agonists (1993-1995). These studies were cited in the NIH National Asthma Education and Prevention Program-2.
After three years of residency in Internal Medicine at the University of Missouri-Columbia (1995-1998), he worked as a fellow in Pulmonary & Critical Care Medicine at Duke University Medical Center, NC (1998-2002). At Duke, he conducted research on lung injury and fibrosis. Since 2002, at UMMC and the VA in Jackson, he has enjoyed being a clinician, administrator, teacher, and researcher. His current focus is paraquat-induced lung injury, as well as mentoring and advising fellows and faculty.
Dr. Christopher Michael Bourean specializes in hospital-based internal medicine. In April 2019, Bourean served as a resident at the G.V. (Sonny) Montgomery VA Medical Center (“VAMC”) in Jackson, Mississippi, where he gained valuable clinical experience.
The Government asked this Court to strike Loveall’s expert designations of Bhagat and Bourean as inadequate under both Rule 26(a)(2)(B) and Rule 26(a)(2)(C). Loveall’s designations state that Bhagat and Bourean’s expected testimony will be based on, among other things, their “treatment of the plaintiff and review of the medical records.” However, no written reports have been submitted for either physician, precluding compliance with Rule 26(a)(2)(B). Additionally, both Bhagat and Bourean executed declarations contradicting the opinions Loveall attributed to them, further undermining her designations. That Loveall’s designated experts are treating physicians does not excuse her from the obligation to properly disclose their opinions and the facts and data that form the bases of those opinions.
ii. Analysis
Even if a report were not required, Loveall’s designations fail to meet the standards of Rule 26(a)(2)(C). While Loveall sufficiently identified the subject matter of the witnesses’ testimony—critical care medicine for Bhagat and hospital-based internal medicine for Bourean—her disclosures do not satisfy the second prong of Rule 26(a)(2)(C). Specifically, Loveall expects both physicians to testify that the cause of death was acute respiratory failure likely due to pulmonary embolism, but she has provided no explanation of facts to support these opinions. Proper disclosure requires a clear and detailed explanation of the facts, data, and opinions to allow the opposing party to prepare rebuttal testimony. Instead, Loveall’s designations merely restate allegations from her complaint, rendering them insufficient under Rule 26(a)(2)(C).
The Court also found that striking the expert designations was an appropriate remedy. While Loveall identified the witnesses, her deficient disclosures and failure to properly comply with applicable rules warrant enforcement of local rules and scheduling orders. The testimony of Bhagat and Bourean is crucial to Loveall’s case, underscoring the importance of compliance with deadlines. The Government has demonstrated prejudice arising from continued delays, which impedes its ability to prepare for trial. Furthermore, the Court finds no reason to believe that a continuance would cure the deficient designations due to Loveall’s repeated extensions and her failure to respond to the Government’s motion. Because at least three of the four factors weigh in the Government’s favor, the Court finds striking Loveall’s designations is an appropriate remedy.
Held
The Court held that Loveall failed to comply with Federal Rule of Civil Procedure 26(a) and Local Uniform Civil Rule 26(a). It granted the Government’s motion to strike Loveall’s expert designations as unopposed under Local Rule 7(b)(3)(E) and found the Government’s arguments independently persuasive. Accordingly, the Government’s motion against Rajesh Bhagat and Christopher Bourean was granted.
Key Takeaway:
When deciding whether striking an expert witness is appropriate for such a failure, the Court considers four factors to determine if the failure was substantially justified or harmless: (1) the explanation for the failure to identify the witness, (2) the importance of the testimony, (3) the potential prejudice in allowing the testimony, and (4) the availability of a continuance to cure that prejudice.
Applying these factors, the Court found that Loveall failed to identify the witnesses properly. The Government demonstrated potential prejudice in its ability to prepare for trial if the testimony were allowed. The Court also determined that a continuance would not cure the deficiencies. This was especially true given Loveall’s repeated extensions and failure to act.
Case Details:
Case Caption:
Kathleen Loveall V. United States Of America
Docket Number:
3:23cv2998
Court:
United States District Court for the Southern District of Mississippi, Northern Division
Between 2015 and 2016, Lucy Letby harmed babies in her care with the intention of killing them. The means of harm varied: causing air embolus by introducing air via intravenous lines; forcing air into the abdomen via nasogastric tubes; force feeding milk; poisoning by administering insulin; physical trauma. She alone was present on the unit at the time of all the deaths and deteriorations.
Following an internal review of the deaths, and the suspension of the applicant from nursing duties, the police began an investigation in May 2017. Letby was convicted in August 2023 of seven counts of murder and seven of attempted murder of infants at the neonatal unit at the Countess of Chester Hospital. She was acquitted on two further counts of attempted murder and the jury was unable to agree on a further six counts of attempted murder. The Court of Appeal rejected Letby’s application for leave to appeal against her convictions after the credibility of Prosecution’s lead expert, Dewi Evans‘ testimony was affirmed.
Evans, a retired paediatrician, was asked to review initially 33 sets of clinical records involving death or deterioration of an infant on the unit and then a further 28 sets of records.
He was retained to provide an opinion on the cause of the collapse of each baby. Lucy Letby’s barrister Mark McDonald told a news conference in London that Evans, had allegedly altered his view about how the babies died. Evans added: “Mark McDonald’s observations regarding my evidence is unsubstantiated, unfounded, inaccurate. Evans said the only change in his evidence related to the date a child referred to as Baby C died but insisted it was a simple error by the prosecution.
Pediatrics Expert Witness
Dewi Evans provides expert medical advice regarding clinical issues where child abuse is suspected or where there are allegations of clinical negligence. He has prepared reports for the Court for over 25 years and has given evidence in court in Wales, England, Ireland and Northern Ireland.
He was appointed a consultant paediatrician in 1980; he had been trained in neonatology although, at the time, this was not a specific sub-specialty, hence he was never a consultant neonatologist; he set up a neonatal intensive care service in Swansea; he designed a new neonatal unit in 1990.
“The defense will argue that Evans is not a reliable expert, and all the convictions are not safe,” McDonald said. He said: “Remarkably, Evans has now changed his mind on the cause of death of three of the babies: Baby C, Baby I and Baby P.
The Court was told that one of Letby’s victims, Baby C weighed just 800g (1lb 12oz) when he was born in early June 2015, but despite that, medics recorded that he was in a “good condition” and stable.
He was being kept in the highest priority section of the neonatal unit, but on the night of 13 June, he suddenly stopped breathing.
The Court heard Letby, who was the designated nurse in a different section but was present when Baby C collapsed, caused the issue at about 23:15 BST by inserting air into his stomach via a nasogastric tube.
Medics failed to revive him and he was pronounced dead at 05:58 on 14 June
According to McDonald, Evans had “revised his opinion in relation to Baby C” and had written a new report which he had given to police months ago. But, he added “despite numerous requests” the prosecution had “yet to give this report to the defense”.
Evans previously told BBC that Baby C was likely to have died due to “a combination of air and milk” pumped via the nasogastric tube into the stomach, which differed from what he had said in Court when he only mentioned air.
He told the BBC it had led him “to review the events leading up to Infant C’s collapse and death” and thought it “more likely” that it was an injection of air into the bloodstream, although he stressed either would be “inflicted injury”.
Key Takeaway:
Mark McDonald accused Dewi Evans of retracting his earlier statements about how the babies died. Evans allegedly revised his opinion regarding Baby C but failed to provide the defense with his updated report.
However, Evans said he was “surprised how little he changed his mind” while working on the case.
Please refer to the blog previously published about this case:
