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  • Economics Expert Witness Allowed to Opine on Educational Loss 

    Economics Expert Witness Allowed to Opine on Educational Loss 

    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”) brought intentional discrimination claims 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.

    Plaintiffs filed a motion to preclude the opinions of Dr. Howard Shane, an anticipated expert witness for the District who will opine on the “effectiveness and appropriateness of using the method known as Spelling to Communicate (S2C) with Alex LePape.”

    In response, the District filed a motion to preclude the opinions of Chad Staller, an anticipated expert witness for Plaintiffs who will opine on the damages that Plaintiffs incurred for Alex’s past and future educational services and the future costs for Alex’s psychiatric treatment, and all evidence of educational loss.

    Speech-Language Pathology Expert Witness

    Howard Shane has been a practicing and licensed Speech Language Pathologist for 49 years. The vast majority of his professional life has been spent working with individuals who are non-speaking as a result of autism, cerebral palsy, or intellectual impairment. He holds a Master’s degree and a Doctoral degree in Speech Pathology with a minor in Developmental Psychology and Audiology. For his doctoral work, he specialized in neurogenic speech problems. Moreover, he completed a Doctoral Fellowship at the Mayo Clinic in Rochester, Minnesota, where he worked with patients who experienced severe motor speech disorders, including Apraxia of Speech.

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

    Economics Expert Witness

    Chad L. Staller JD, MBA, MAC, CVA serves as the president of the Center for Forensic Economic Studies and holds extensive experience collaborating with both plaintiff and defense counsel across various civil cases. His expertise involves quantifying losses sustained by diverse plaintiff profiles, including union members, government employees, business proprietors, and injured children. Staller specializes in evaluating claims related to employment discrimination, encompassing calculations of back-pay, front-pay damages, and lost benefits. Additionally, he frequently provides consultation on commercial issues, analyzing claims associated with lost profits and business interruptions. Staller has a substantial record of testifying in jury trials, bench trials, and arbitrations within state and federal court settings.

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

    Discussion by the Court

    Chad Staller

    Motion to Preclude the Expert Testimony of Chad Staller and All Testimony and Evidence of Educational Loss

    The District contended that because it has been judicially determined that the District provided Alex with a free appropriate public education (“FAPE”) and is not entitled to recover compensatory education or tuition reimbursement under the Individuals with Disabilities Education Act (“IDEA”), Plaintiffs cannot recover educational loss damages under the Americans with Disabilities Act (“ADA”) or the Rehabilitation Act, which renders Staller’s opinions as to those damages irrelevant under Rule 401 and unfairly prejudicial under Rule 403. 

    Basically, evidence of educational loss is relevant to establish the specific compensatory damages that Plaintiffs seek. Accordingly, the Court denied the District’s motion with respect to evidence of Plaintiffs’ educational loss, including Staller’s opinions as to the amount of educational loss damages Plaintiffs incurred.

    Staller’s testimony on future medical care damages

    To begin with, the District argued that Plaintiffs are not entitled to recovery of emotional distress damages under the ADA or the Rehabilitation Act, which rendered Staller’s opinions as to those damages irrelevant under Rule 401 and unfairly prejudicial under Rule 403. 

    The Supreme Court held in Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 142 S. Ct. 1562, 212 L. Ed. 2d 552 (2022), that emotional distress damages are not recoverable in private discrimination actions brought under the Rehabilitation Act.

    The Court is not convinced by Plaintiffs’ argument that the non-educational loss damages that they seek—payment of Alex’s future psychiatric treatment expenses—are not emotional distress damages and, therefore, are still recoverable.

    The vast majority of district courts confronted with this issue in the wake of Cummings have held that mental health treatment costs constitute emotional distress damages because they stem from emotional distress as the underlying injury. 

    Therefore, the Court found that Plaintiffs are precluded from recovering Alex’s future psychiatric treatment expenses, as these fall into the category of emotional distress damages that are not recoverable under the ADA and the Rehabilitation Act.

    The Court granted the District’s motion with respect to Staller’s opinions as to the projected cost of future psychiatric treatment for Alex.

    Howard Shane

    Plaintiffs argued that because Shane’s opinions are not based on any analysis of “Alex’s communication with a letter board and communication partner,” they are irrelevant under Federal Rule of Evidence 401. Alternatively, Plaintiffs argued for the preclusion of Shane’s opinions under Federal Rule of Evidence 403 because these opinions “would invade the province of the jury, offering an opinion as to the credibility of [Alex’s] testimony with the letter board.”

    The Court held that Shane’s opinions are relevant to the material factual issues of the efficacy of a letterboard and communication partner for Alex, the efficacy of other communication supports that the District provided to Alex, and the District’s knowledge when it refused to permit Alex to use S2C at school at least in part due to the perceived lack of supporting scientific research.

    Moreover, Plaintiffs’ contention that Shane did not base his opinions on any “personal interactions” with Alex or investigations of “authorship with Alex’s use of the letter board” is not entirely accurate, as Shane indicates in his affirmative report that he compared the “content of [Alex’s] work produced independently with [his] work produced with the assistance of a facilitator.”

    Also, considering that Plaintiffs will offer their own expert opinions as to the efficacy of Alex’s use of S2C as a means of communication and the significance of a communication partner for Alex, the Court found that Plaintiffs will not be unfairly prejudiced, and the jury will not be confused or misled, by the introduction of Shane’s contrasting opinions.

    However, the Court precluded Shane’s opinions to the extent they relate to human rights violations, including violations of the United Nations Conventions on the Rights of Persons with Disabilities, because such opinions are impermissible legal conclusions and unfairly prejudicial and confusing to the jury. 

    Held

    1. The Court granted in part and denied in part Plaintiffs’ motion in limine to preclude opinions of Howard Shane.
    2. The Court granted in part and denied in part Defendant’s motion in limine to preclude the testimony of Chad Staller.

    Key Takeaway:

    • The Court did not find that the probative value of Shane’s opinions is substantially outweighed by the dangers of unfair prejudice because the Plaintiffs will offer their own expert opinions as to the efficacy of Alex’s use of S2C as a means of communication and the significance of a communication partner for Alex.
    • Also, Staller’s opinions as to the amount of educational loss damages Plaintiffs incurred is relevant to establish the specific compensatory damages that Plaintiffs seek and are entitled to recover for their ADA and Rehabilitation Act claims.

    Case Details:

    Case Caption: J.L. Et Al V. Lower Merion School District
    Docket Number: 2:20cv1416
    Court: United States District Court, Pennsylvania Eastern
    Order Date: December 30, 2024
  • Accident Reconstruction Expert Witness’ Opinion Regarding Alcohol as a Possible Cause of the Collision Excluded

    Accident Reconstruction Expert Witness’ Opinion Regarding Alcohol as a Possible Cause of the Collision Excluded

    The dispute in this matter arose from a collision that occurred in Greene County, Tennessee on May 25, 2021, at or around 2:45 p.m., involving two tractor trailers and a service vehicle. At the same time that Darryl Jerome Packer was attempting to re-enter the right lane of travel, Ronald Forsyth was driving his truck northbound on Interstate 81.

    Forsyth’s vehicle violently struck Packer’s vehicle in the rear, pushing it into Wayne Honeycutt’s wrecker. Forsyth’s vehicle then became engulfed in flames. Forsyth was airlifted from the scene to Johnson City Medical Center where he received treatment for his injuries.

    Forsyth alleged deviations from the standard of care and negligence per se for Packer and a deviation from the standard of care for Honeycutt.

    K. Scott Reiling specifically opined that Plaintiff “could easily have slowed down to avoid collision” and that “Forsyth made little to no attempt to slow his vehicle.” Reiling ultimately concluded that “the crash was caused by the failure of Forsyth to react to the presence of vehicle 1 [driven by Packer] and vehicle 3 [driven by Honeycutt] by braking and slowing vehicle 2.” Then, as his very last conclusion, Reiling opined that “alcohol may have been a contributing factor in the accident.” Reiling said that he has based this conclusion on a statement made by Forsyth to medical personnel, which a state trooper captured on his body camera video.

    Plaintiff sought only to preclude Reiling from opining that alcohol may have been a contributing factor in causing the accident at issue.

    Accident Reconstruction Expert Witness

    K. Scott Reiling currently serves as a professional engineer and project manager on numerous matters for Engineering Forensics Group, Inc. and has training and experience to assist clients in a variety of forensic matters involving vehicle accident investigation and reconstruction. His experience includes projects involving various types of vehicles, pedestrian accidents, motorcycle accidents, roadway issues, retrieval and analysis of vehicle event data recorders and other engineering analysis.

    Reiling earned a bachelors degree in mechanical engineering and he is a registered professional engineer. He is accredited by the Accreditation Commission for Traffic Accident Reconstruction (ACTAR) and has provided expert witness testimony related to accident investigation and reconstruction in circuit, criminal and U.S. district courts.

    Discover more cases with K. Scott Reiling as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    Plaintiff asserted that Reiling’s opinion regarding alcohol is speculative, and that any probative value in permitting him to offer the opinion is outweighed by the danger of unfair prejudice to Plaintiff.

    Defendants appeared to suggest that Reiling’s conclusion that alcohol might have been a factor in causing the collision is properly supported because alcohol is known to slow reaction time and Reiling had opined earlier in his report that Plaintiff had failed to timely react. Defendants argued that Reiling’s opinion that alcohol was a possible factor in causing the collision has a proper foundation and is reliable because Reiling was entitled to rely on Plaintiff’s statement to medical personnel about having alcohol in his system, which was recorded by a trooper at the scene.

    Analysis

    The Court held that Reiling’s report did not indicate that he did in fact rely on alcohol as a factor in forming his conclusions regarding the cause of the collision at issue. Although Defendants’ counsel understandably seeks to connect Reiling’s conclusions regarding “the failure of Forsyth to react” to Forsyth’s comment that “he had alcohol in his system,” the report itself does not connect those dots. Moreover, in opining that alcohol may have been a factor, Reiling does not explain how he used his expertise to form that conclusion, i.e., the Court cannot determine what, if any, principle or method he used in reaching this conclusion.

    However, even if the Court found that Reiling was entitled to rely on Plaintiff’s statement about having alcohol in his system, and that he had used his expertise to reach this conclusion, applicable law would still prohibit Reiling from offering his opinion at the trial of this cause. In stating that “[a]lcohol may have been a contributing factor,” Reiling has provided the type of speculative opinion that applicable law prohibits because it fails to provide anything more than a commonsense conclusion about what is or is not possible.

    Finally, in determining that Reiling’s opinion regarding alcohol as a possible cause of the collision should be excluded, the Court noted that the statement appears to be a gratuitous add-on at the end of his report which is out-of-step with the other well-formulated conclusions he renders therein. In rendering his other opinions, Reiling walks through the steps he took to formulate each opinion, provides supporting data for those opinions, and offers them with a degree of certainty that is lacking with his opinion addressing alcohol.

    Held

    The Court granted Plaintiff’s motion to exclude the testimony of Defendant’s expert K. Scott Reiling.

    Key Takeaway:

    Reiling’s opinion regarding alcohol as a possible cause of the collision is precisely the type of speculative opinion that applicable law prohibits. Reiling does not explain how he used his expertise to form that conclusion; i.e., the Court cannot determine what, if any, principles or methods he relied on in reaching this conclusion.

    Case Details:

    Case Caption: Forsyth V. Big L Express Trucking, Llc Et Al
    Docket Number: 2:22cv37
    Court: United States District Court, Tennessee Eastern
    Order Date: December 30, 2024
  • Human Factors Expert Witness Improperly Relied on Studies Regarding the Climbing Abilities of Children

    Human Factors Expert Witness Improperly Relied on Studies Regarding the Climbing Abilities of Children

    Plaintiffs 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.

    On March 10, 2022, Bestway USA filed a Third-party Complaint against Thirdparty Defendants, Mary and Patrick Flake, E.M.J.’s grandparents and the owners of the pool in which E.M.J. drowned. Bestway USA raises two claims against the Flakes: Count I for Premises Liability and Count II for Negligence.

    On August 25, 2023, Defendant Rural King filed a Third-party Complaint raising four total claims against the Bestway Entities: Count I – Negligence against Bestway Hong Kong; Count II – Negligence against Bestway Inflatable and Materials Corporation; Count III – Strict Liability against Bestway Hong Kong; and Count IV – Strict Liability against Bestway I&M.

    Kevin Rider, PhD, is a human factors and engineering expert retained by Third-party Plaintiffs Mary and Patrick Flake. He was retained “to determine if the subject pool was safe for its intended use, particularly as it relates to other expert opinions that have been provided regarding the same.”

    Rider explained that the Flakes and Justices had removed the ladder from the pool which should have provided an effective guard. He added that the effective height of the subject pool wall failed to provide the safety intended by relevant standards and created an unreasonable risk of harm to toddlers.

    The Bestway Entities argued that Rider’s opinions should be excluded because they are not based on sufficient facts and data, are not the result of a reliable application of a methodology to the facts, and are speculative and unhelpful to the jury.

    Human Factors Expert Witness

    Kevin Rider holds a PhD in industrial and operations engineering from the University of Michigan and master’s and bachelor’s degrees in industrial engineering from the University of Tennessee. He has nearly thirty (30) years of experience in the fields of engineering and human factors.

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

    Discussion by the Court

    The Bestway Entities contended that Rider did not perform any of his own data collection or analysis, but rather accepted information and data provided to him by other experts in the case and opined on whether these other experts’ conclusions fit that data.

    First, the Bestway Entities asserted that Rider failed to account for Mary Flake’s past experience babysitting and raising children in forming his conclusions about what dangers she was aware of regarding the pool. Second, the Bestway Entities also questioned the reliability of Rider’s opinion regarding what warnings the Flakes and the Justices were aware of given their testimony that they never read the pool’s warnings. Third, the Bestway Entities contended that Rider improperly relied on studies about the climbing abilities of three-year-old children rather than crediting results from those studies regarding two-year-old children. The Bestway Entities argued that because E.M.J. was two at the time of her death, Rider cannot reliably compare her alleged abilities to those of three-year-olds included on such studies.

    Rider’s Testimony

    Rider intended to offer the following opinions:

    1. The Flakes and Justices complied with the warning of which they
      were aware – the ladder had been removed from the pool.
    1. Based on [E.M.J.]’s demonstrated climbing abilities, the removal of
      the ladder should have provided an effective guard, which would have
      prevented this incident from occurring.

    3. The published literature is consistent with the conclusion of Detective
    Jeffrey Doerr and others regarding how this incident occurred.

    4. The nylon strap effectively created a wall that was approximately 37”
    high, 11 inches shorter than the 48” barrier requirement, defeating the
    performance criteria intended by standards.

    5. The effective height of the subject pool wall failed to provide the
    safety intended by relevant standards and created an unreasonable risk
    of harm to toddlers, such as [E.M.J.].

    Analysis

    Opinion 1

    While the Bestway Entities argued that Rider could not have reliably arrived at this opinion because the Flakes and the Justices testified that they did not read the pool’s included warnings, this opinion did not depend on whether the Flakes or the Justices read those warnings. The Flakes and the Justices testified that they knew leaving the ladder on the pool would create a danger to the children, and they ensured the pool ladder was removed when the pool was not in use.

    The Court held that the Bestway Entities misrepresented Rider’s testimony when they argued that he failed to consider Flake’s experience with babysitting because the fact remains that Rider based his opinion on sufficient facts and data, and the Bestway Entities are free to cross-examine Rider regarding testimony that they believe conflicts with his conclusions.

    Opinion 2

    Opinion 2 about removing the pool’s ladder should have rendered the pool safe given E.M.J.’s known climbing abilities, is within Rider’s area of expertise, and the Court held that he relied on sufficient facts and data when forming this opinion. The fact that Rider himself did not conduct any studies or his own observations does not render Opinion 2 unreliable or inadmissible.

    In fact, experts are not required to conduct independent testing nor are they required to conduct direct observations of the scene to offer opinions. Rider has been made aware of facts of this case through the testimony of witnesses and expert reports, which he personally reviewed. He then analyzed those facts and data to come to his conclusions.

    Opinion 4 and 5

    The Bestway Entities suggested that Rider cannot provide these opinions because he testified that he is not an expert in certain applicable standards for aboveground pools, but they again misrepresented Rider’s testimony. The Court held that Rider will be permitted to testify regarding his understanding of these industry standards as it relates to human factors and engineering in Opinions 4 and 5. These opinions will also be helpful to the jury as they are outside of the knowledge or experience of the average lay juror and will help the jury to determine the potential fault to attribute to the Flakes and/or the Bestway Entities.

    Opinion 3

    Rider relied on several studies regarding the climbing abilities of children. In one of these studies, 52% of three-year-old participants were able to climb a three-foot barrier while 22% of them were able to climb a four-foot barrier.

    Rider did not sufficiently explain why study data regarding three-year-old participants’ climbing abilities is relevant here when E.M.J. was just over two-and-a-half years old. He admitted that study participants that were around the same age as E.M.J. or even one month shy of three-years-old would have been counted in the two-year-old data set in the study. His only explanation for why he’s not considering the two-year-old’s data set is E.M.J.’s height, but he also admitted that E.M.J. was one inch (1”) shorter than an average three-year-old.

    The Court observed that while Rider factors in E.M.J.’s height, he failed to account for potential developmental and motor differences between two and three-year-olds.

    Neither Rider nor the Flakes presented any evidence that height was a measured variable in the study he relied on or that the study’s conclusions relied upon the participants’ heights rather than their age. Given these gaps between the data Rider relies upon and the facts in this case, the Court found that the analytical leap necessary for Rider to arrive at his Opinion 3 is too great and will be excluded.

    Held

    The Court granted in part and denied in part the Bestway Entities’ motion to exclude the opinions of Dr. Kevin A. Rider, PhD.

    Key Takeaway:

    Rider’s opinion 3 reflects an unreliable application of a human factors methodology to the facts of this case.

    To arrive at the conclusion that the published literature regarding children’s climbing abilities is consistent with Detective Doerr’s conclusions about how E.M.J. entered the pool, Rider made too great an analytical leap between the data he cites and the facts of this case.

    Please refer to the blogs previously published about this case:

    Case Details:

    Case Caption: Kyle Justice V. Bestway USA, Inc. Bestway USA, Inc.
    Docket Number: 4:22cv50
    Court: United States District Court, Missouri Eastern
    Order Date: December 30, 2024
  • Family Medicine Expert Witness’ Testimony on Landlord’s Health Condition Excluded

    Family Medicine Expert Witness’ Testimony on Landlord’s Health Condition Excluded

    In this fair-housing action, Intervenor Beverly Boucher sought to rent an apartment from Defendants Madison Property, L.L.C. (Madison Property) and Andrew Brenner (together, Defendants). Defendants declined to rent to Boucher after she informed them that she wished to live in the apartment with an emotional support animal (ESA), a cat.

    In Count I, Plaintiff United States of America (Plaintiff) claims that Defendants refused to lease a unit to Boucher because of her disability, and in Count II, Plaintiff claims that Defendants refused to grant Boucher’s request for an accommodation to the apartment building’s no-pets policy. 

    Defendants retained a family medicine expert witness, Stuart W. Steichen, an osteopath, and Brenner’s brother-in-law, to opine on Brenner’s health condition. Plaintiff, however, filed a motion to exclude the testimony of Defendants’ expert, Stuart Steichen, under Federal Rule of Civil Procedure 37(c) and Federal Rule of Evidence 702.

    Family Medicine Expert Witness

    Family Medicine Expert Witness

    Stuart W. Steichen specializes in family medicine. He has been practicing for over 20 years and is affiliated with Allina Health United Hospital. Steichen received his medical degree from the Chicago College of Osteopathic Medicine.

    Want to know more about the challenges Stuart W. Steichen has faced? Get the full details with our Challenge Study report.  

    Discussion by the Court

    Steichen’s Testimony

    During the litigation, Defendants submitted a letter on Steichen’s clinic letterhead stating that Andrew Brenner had been under his care for recurrent upper respiratory infections. The letter explained that Brenner’s immune system was significantly weakened, making him highly susceptible to infections. It also pointed out that Brenner required a clean environment, free from irritants, to avoid illness. Exposure to cat dander, in particular, was identified as an allergen that could trigger respiratory issues.

    Steichen testified that Brenner’s severe kidney disease contributed to his weakened immune system. However, he admitted that he had never discussed Brenner’s kidney condition with him or reviewed his medical records. Instead, Steichen learned about Brenner’s kidney health from Brenner’s sister, who is not a medical professional.

    Analysis

    The Court observed that Steichen’s testimony aimed to support the Defendants’ argument that denying Boucher’s accommodation request was justified because having a cat would harm Brenner’s health. However, Steichen first treated Brenner in late 2021, months after Brenner had already denied Boucher’s request in March 2021. Furthermore, Steichen’s knowledge of Brenner’s immune condition did not come from treating him. Instead, Steichen learned about Brenner’s condition through conversations with Brenner’s sister, who is not a physician. Steichen never reviewed Brenner’s medical records or discussed his kidney condition with him.

    Given these facts, the Court concluded that Steichen’s opinion would not help the jury and should be excluded from the trial.

    Held

    The Court granted the Plaintiff’s motion to exclude Defendants’ family medicine expert witness, Stuart W. Steichen.

    Key Takeaway:

    The Court excluded the testimony of the Defendants’ expert Stuart Steichen because his opinions lacked a proper foundation and would not be helpful to the jury. Steichen’s testimony was meant to support the Defendants’ argument that allowing Boucher to live with her emotional support animal (ESA) would harm Brenner’s health due to his weakened immune system.

    Steichen claimed Brenner’s condition made him vulnerable to issues from cat dander. However, Steichen never treated Brenner for his kidney condition, the primary cause of his weakened immune system. He learned about Brenner’s health from Brenner’s sister, who is not a medical professional and did not review Brenner’s medical records. Steichen also started treating Brenner after the ESA request was denied. The Court found his testimony would not assist the jury and excluded it.

    Case Details:

    Case caption: United States v. Madison Prop., L.L.C.
    Docket Number: 0:22cv2831
    Court: United States District Court for the District of Minnesota
    Dated: December 27, 2024
  • Testimony of the Biomechanical Engineering Expert Witness About the Dangers of Inclined Sleepers Limited

    Testimony of the Biomechanical Engineering Expert Witness About the Dangers of Inclined Sleepers Limited

    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.

    Erin Mannen’s investigation found, among other things, that inclined
    sleepers can cause infants to roll from their back to their stomach or side and that once the infant is in this compromised position, the infant is at a heightened risk of suffocation. Defendants asserted that Mannen “ignored” studies commissioned by Fisher-Price that reached results contrary to her own and moved to exclude Mannen’s opinions.

    Biomechanical Engineering Expert Witness

    Erin Mannen is a biomechanical engineer who specializes in infant biomechanics and is the Director of the Boise Applied Biomechanics of Infants (BABI) Laboratory. She has published several peer-reviewed papers on the subject and won the American Society of Biomechanics Early Career Achievement Award for this work.

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

    Discussion by the Court

    It is noteworthy that A.B. suffered from several medical problems resulting from his premature birth, including hypertonicity. A.B. also suffered from developmental delays. Brown placed A.B., clothed and swaddled, on his back in the RnP. Sometime during the night, A.B. came to be on his side. When Brown awoke, she discovered A.B. “stiff.” Emergency services were unable to revive A.B.

    Mannen’s report considered the effect inclined sleep products have on an infant’s ability to roll from their back, an infant’s ability to correct a compromised position after rolling, the rate at which an infant attempting to correct its position would fatigue, and the consequences those compromising positions would have on an infant’s breathing.

    Mannen Qualifies As An Expert On Biomechanics

    Mannen’s testimony would also show the use of an inclined sleeper makes it harder for an infant to correct a compromising position. Mannen’s report also touched on the topic of rebreathing. Defendants contended that: (1) Mannen did not qualify as a medical doctor and cannot give medical opinions; (2) Mannen failed to account for the specific conditions present in this case, thus preventing any of the findings of her studies from being applied to the instant set of facts; and (3) Mannen’s studies did not support her conclusion and did not utilize reliable methodology.

    The Court found that her knowledge, skill, experience, training, and education meet the level of qualification required under Daubert. In other words, Defendants did not meaningfully contest Mannen’s qualifications as an expert on biomechanics.

    The specific causation testimony that Defendants objected to concerned the following conclusions: (1) rebreathing and its impact; (2) the design of the RnP facilitated A.B. turning his head and coming into contact with the soft mesh siding of the RnP; (3) A.B. died from either positional asphyxiation or suffocation; and (4) the RnP caused A.B.’s death. Defendants argued that Mannen’s lack of medical expertise precluded her from opining on the topics of rebreathing and A.B.’s cause of death. Defendants further asserted a blanket objection to “any other specific causation opinion.” Plaintiffs contended that Mannen does not offer any medical opinions, and all of her opinions regarding specific causation are based on her expertise in biomechanics.

    Mannen’s Causation Testimony Is Generally Admissible

    Defendants argued Mannen’s opinion on rebreathing should be excluded because she does not qualify as a pulmonologist and improperly relied on the report of another expert, Michael D. Leshner.

    The Court held that Mannen’s lack of qualification as pulmonologist does not necessarily preclude her from opining on rebreathing, as an expert may rely on the reports of other experts to help form the basis of their own opinion.

    Her opinion, formed based on her analysis of Leshner’s data, states “in a side-lying or a 90-degree head turn situation, [ ] an infant would experience significantly increased CO2 inhalation simply due to the design of the product.”

    Mannen synthesized that data generated by Leshner’s report; considered her peer-reviewed research, her inspection of the product, and her own expertise in biomechanics; and concluded that the environment created by placing an infant in the RnP creates “a dangerous CO2 rebreathing and/or suffocation scenario.”

    Due to the deficiencies in that other Leshner’s methodology, the Court held that Mannen may not rely on Leshner’s report.

    The Court struck Mannen’s conclusion that “in a side-lying or a 90-degree head turn situation, an infant would experience significantly increased CO2 inhalation simply due to the design of the product” because it was calculated with the data from Leshner’s unreliable methodology.

    The Court concluded that Mannen’s other conclusions regarding whether an infant would be at risk for rebreathing in the RnP were based on her examination of an RnP, her peer-reviewed research, and her expertise as a biomechanical engineer. Accordingly, Mannen’s testimony regarding rebreathing that does not rely on Leshner’s methodology is admissible.

    Mannen’s Studies Sufficiently Fit The Instant Facts and are Admissible

    Mannen’s various studies examined infants and their muscle activity when placed at various inclines. Mannen studied healthy infants wearing only a diaper.

    On the night of his death, A.B.’s limbs were restricted by a swaddle and layers of clothing. A.B. also suffered from hypertonicity, a condition of excessive muscle tone that may limit an infant’s range of motion.

    Defendants argued that these variations between the facts surrounding A.B.’s death and Mannen’s studies prevented Mannen’s opinion from possessing the requisite fit to be admissible.

    Mannen concedes she did not study infants who were clothed or swaddled, or any infants suffering from hypertonicity. Nevertheless, her studies and report explain how an infant previously unable to roll on his own may have been able to roll because of the incline present in the RnP. Further, her report explains how once A.B. rolled to his side, he may have been unable to reposition and would have struggled to breathe correctly. The Court held that these explanations are relevant to the ultimate issue in this case—how the RnP’s design may have contributed to A.B.’s death. 

    Defendants posited that Mannen, relied on tests that did not involve persons with the victim’s characteristics. However, the Court found that Mannen had a basis on which to assert that her conclusions regarding the risk of rolling for infants not suffering from hypertonicity could be applied to A.B. Mannen, provides an “ordinary infant” standard and applies that standard to an infant less susceptible to injury; thus, there is no additional susceptibility to injury that would invalidate her conclusions as applied to A.B.

    Mannen’s Studies Employed Reliable Methodology

    Defendants argued Mannen’s “easier-to-roll” hypothesis is unsupported by the studies she cites.

    As to Mannen’s conclusion that a side-facing infant would come into contact with the side of the RnP, leading to an increased risk of suffocation, Defendants argued that Mannen’s demonstration using a soccer ball in place of an infant “is not based on any recognized methodology for examining potential respiratory compromises.”

    Mannen’s studies—the 2019 Consumer Product Safety Commission study (the “CPSC study”) and the studies identified as “Wang 2020” and “Wang 2021″—examined the effects of sleep surfaces on an infant’s muscle activity to determine “if the design of inclined sleep products impacted suffocation risk from a movement and body position perspective.”

     While conducting the CPSC study, Mannen studied ten infants placed on sleeping surfaces with increasing levels of incline. Mannen and her team monitored body position and muscle activity. Mannen subsequently conducted a similar study involving 15 infants, and published those results in peer-reviewed journals as the Wang 2020 and Wang 2021 studies.

    Those studies found that infants placed in inclined sleepers experience different muscle activity and body position compared to infants on flat surfaces. Mannen opined that those differences make it easier for an infant to roll from supine to prone—a roll that necessitates the infant being on his side if only for a brief moment—which places the infant at greater risk of maneuvering into a compromised position.

    The studies were not intended to measure the frequency infants rolled when placed in inclined sleepers, but rather the inclined sleeper’s biomechanical effect on an infant’s ability to roll.

    Held

    The Court found that Mannen explained her methodology; addressed what each finding means generally and in relation to A.B.’s case; considered potential errors within the studies; and subjected both the Wang 2020 and Wang 2021 studies to peer review.

    Moreover, Defendants appeared to misinterpret Mannen’s use of a soccer ball in her opinion. 

    Defendants contend “that test, however, which involved manipulating a soccer ball by hand in a [RnP], is not based on any recognized methodology for examining potential respiratory compromises, and the test appears to have used a [RnP] model with an additional pad…” Mannen, however, did not perform a test with a soccer ball. Rather, she used the soccer ball in a series of pictures to demonstrate how something approximately the size of an infant’s head would be positioned after a 90-degree turn.

    Mannen’s use of a soccer ball as a stand-in for an infant’s head appeared reasonable to the Court. As the soccer ball’s utilization was illustrative rather than substantive, that illustration is admissible.

    The Court concluded that many of Defendants’ challenges relate to credibility and may be dealt with during cross-examination of Mannen. It was decided that Mannen may testify regarding rebreathing only to the extent that she relies on peer-reviewed studies or her own expertise; accordingly, Mannen’s rebreathing testimony may not touch on Leshner’s Report or any conclusions reliant on his methodology.

    Key Takeaway:

    Mannen utilized her expertise in biomechanics to opine on: (1) how the RnP design allowed A.B. to turn onto his side; (2) how the RnP design made it more difficult for A.B. to correct his position once on his side; (3) the risk of rebreathing and suffocation created by the RnP; and (4) the increased fatigue caused by an infant unable to correct his position. None of those opinions offer a medical opinion. All those opinions are either the direct product of Mannen’s expertise, or her reasonable reliance on the reports of other experts. Thus, Mannen’s lack of medical expertise does not preclude her from offering those opinions.

    Case Details:

    Case Caption: Ameena Brown V. Fisher-Price, Inc.
    Docket Number: N20C-01-067
    Court: Superior Court of Delaware, New Castle
    Order Date: December 20, 2024
  • Law Enforcement Expert Witness’ Opinion About Officer’s Demeanor Has Marginal Relevance

    Law Enforcement Expert Witness’ Opinion About Officer’s Demeanor Has Marginal Relevance

    Joshua Briggs was arrested for Disorderly Conduct and Harassment because he called Anchorage Police Officer Orean Yi a pig. Briggs filed this lawsuit alleging that he was arrested without probable cause in retaliation for exercising his First Amendment rights.

    Officer Yi asserted that he had probable cause to arrest Briggs because Briggs was making sufficient noise to violate Anchorage’s Disorderly Conduct Ordinance, AMC 08.30.120(A)(2).

    Briggs filed a motion to exclude the report and testimony by Defendants’ expert, James Borden, maintaining that Borden is “not qualified to testify on any matter in this case and his opinions are neither relevant nor reliable under Federal Rule of Evidence 702 and the standards set forth in Daubert.”

    Law Enforcement Expert Witness

    James Borden has over 24 years of combined experience in law enforcement, force analysis, and video review and examination. James is court certified as an expert in the Following Topics: Controversial Use of Force, Police Performance Dynamics, Forensic Video Examination, Officer/subject movement dynamics, Controversial Officer-Involved Shootings, and Attentional Issues related to Officer-Involved Critical Incidents, Police Training and Police Policy, Procedure and Practice.

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

    Discussion by the Court

    a. Qualifications and Reliability

    Briggs maintained that “none of Borden’s listed qualifications demonstrate expertise in determining what constitutes ‘legitimate law enforcement action,’ whether an arrest is ‘based on proper elements,’ whether a person has ‘committed the misdemeanor crime of Disorderly Conduct,’ whether the elements of harassment have been met, or whether Yi made ‘a mistake of the mind and not of the heart.’”

    The parties have filed Borden’s curriculum vitae and expert report, as well as a list of cases in which Borden has participated as an expert. The Court held that a review of Borden’s curriculum vitae demonstrates that he is qualified to testify as an expert on the use of force and police practices based on his experience as a police officer and his training on use-of-force issues.

    As to whether Borden’s opinions are derived from reliable principles and methods, Borden’s expert report explained that he reviewed relevant case documents, including any video evidence, to develop an understanding of the facts, and then analyzes the officer’s actions “to determine what the officers did, as well as their stated justification for what they did and why they did it.”

    He then “compares what the officers did and their reasons for doing so with the objective standards derived from police training and accepted police practice.” In Borden’s case, “relevant reliability concerns . . . focus upon personal knowledge or experience.” The Court found that reviewing case material and relevant documents, and then providing an assessment of the events in light of Borden’s personal experience in law enforcement, is a sufficiently reliable methodology.

    b. Relevance

    To be admissible, expert testimony must be relevant to the case: it must “help the trier of fact to understand the evidence or determine a fact in issue.”

    Borden’s Testimony

    Borden’s report contains four opinions:

    1. Opinion 1: Engagement. I believe Officer Yi had a legitimate law enforcement goal and objective in his arrest of Briggs for Disorderly Conduct, a violation of AMC 8.30.120(A)(2). Although detention was a component of the arrest, the detention was brief, and Briggs was released from the scene. The video evidence shows that Briggs appeared to be antagonistic during the detention.

    2. Opinion 2: Legitimate Law Enforcement action. Taking all evidence as factual and accurate, Briggs committed the misdemeanor crime of Disorderly Conduct in the presence of Officer Yi. Briggs’ behavior affected other individuals and caused other patrons in the store at the time of the occurrence to leave the premises without completing their transactions. With the elements of the violations being cited in multiple case documents, and prosecutorial merit being established by the Municipal Attorney’s Office, the charges were approved.

    3. Opinion 3: Use of Force. Officer Yi made the practical and appropriate decision to use handcuffs and detain Briggs as he was arrested. Force used was minimal to include controlling the movement of Briggs, the use of handcuffs and placing him in the back of the patrol car.

    4. Opinion 4: Harassment Charge. The Harassment violation, Code 8.10.110(A)(l), was not a valid charge. However, the elements of this Harassment charge were in place, a sworn officer generally cannot be a victim of Harassment. I believe Officer Yi and others made this oversight. However, the Harassment charge was ancillary to the charge of disorderly conduct and not the only charge that Briggs was issued a summons for. Additionally, Briggs was not taken into custody and booked into jail for the charges.

    Analysis

    The primary issue in this case is whether Officer Yi had probable cause to arrest Briggs during the exchange in the gas station. A dispute of material fact remains as to the volume of Briggs’ speech and any effect on the other patrons of the gas station, facts which are relevant to whether Officer Yi had probable cause.

    Opinion 1 essentially concludes that Officer Yi had probable cause to arrest Briggs for disorderly conduct, which is an impermissible legal conclusion. The Court held that Opinion 1 also does not aid the jury in determining the disputes of fact that remain, and Borden’s opinion as to Briggs’ detention is irrelevant, as the detention is not at issue in this case.

    The Court held that Opinion 2 is inadmissible for the same reason as Opinion 1: it is an impermissible legal conclusion.

    Opinion 3 has marginal relevance, as Briggs does not allege a use-of-force claim and Officer Yi’s use of handcuffs and his placement of Briggs in his patrol car is not disputed and its legality is not at issue. And yet as Briggs acknowledges, Officer Yi’s demeanor during the incident “may be relevant to his credibility.” Whether Officer Yi’s decision to use handcuffs and detain Briggs in the patrol car was “practical and appropriate” could similarly have relevance to Officer Yi’s credibility. The Court held that Borden may testify as to Opinion 3.

    The Court held that Opinion 4 is inadmissible because it is irrelevant and would not help the trier of fact understand the evidence or determine a fact in issue. It is undisputed that the harassment charge was dismissed in state court for lack of probable cause. Further, Opinion 4 is an improper legal conclusion.

    c. Rule 26

    In their opposition, Defendants contended that Borden could testify about numerous other topics that are not mentioned in his report. These topics include “how officers are trained to understand the difference between a suspect simply engaging in first amendment speech and what constitutes pre-assaultive indicators like body movement and tone during such encounter”; and “whether Officer Yi’s actions and decision to search the contents of the wallet for identification and contraband is appropriate under these circumstances.” On the current record, the Court held that Borden cannot testify as to any of those topics because they were not disclosed in his expert report. In other words, Borden’s expert report fails to contain a statement of the opinions Defendants raise above.

    Held

    The Court granted in part Briggs’ motion to exclude the testimony of James Borden; Borden can only testify as to Opinion 3 in his report.

    Key Takeaways:

    • The Court found that reviewing case material and relevant documents, and then providing an assessment of the events in light of Borden’s personal experience in law enforcement, is a sufficiently reliable methodology.
    • The Court held that Borden is qualified to testify as to police practices based on his personal knowledge and experience.
    • The Court decided that Borden’s opinion about Officer Yi’s decision to use handcuffs and detain Briggs in the patrol car has marginal relevance.

    Case Details:

    Case Caption: Briggs V. Yi Et Al
    Docket Number: 3:22cv265
    Court: United States District Court, Alaska
    Order Date: December 23, 2024
  • Human Factors Expert Witness’ Opinion About the Alleged Design Deficiencies of the Boppy Newborn Lounger Admitted

    Human Factors Expert Witness’ Opinion About the Alleged Design Deficiencies of the Boppy Newborn Lounger Admitted

    The Boppy Newborn Lounger (“BNL”) was on the market for nearly sixteen years, and during that time, Boppy sold over 3.3 million BNLs. Boppy’s warnings and marketing made clear that the BNL was intended to give caregivers a place to lay infants down for supervised awake time only, but never for sleeping. As with any product, there were risks associated with improper use, against which Boppy warned and for which Boppy provided instructions concerning safe use.

    On October 2, 2020, Plaintiff Danielle Clark swaddled her infant daughter (“D.B.”) in a blanket that was loosely wrapped around D.B.’s head, but not covering her face. D.B. was then placed “mainly on her side” and in the center of the BNL, which was sitting on the couch. Around 10:30 or 11:00 p.m., Clark fell asleep with her head on the side of the Boppy pillow. When Clark awoke approximately three to four hours later, she found her daughter unresponsive. The decedent was proclaimed dead, and according to the coroner, the cause was “probable asphyxia in the setting of co-sleeping and soft bedding.”

    Plaintiffs alleged that the tragic death of their infant was caused by the BNL. Plaintiffs’ purported expert witness, Dr. Erin Mannen opined that “the design of the Boppy Newborn Lounger resulted in a dangerous biomechanical position that explains the death of [D.B.].” Dr. Ian Noy, also retained by the Plaintiffs, opined that the BNL’s warnings were inadequate.

    Boppy filed motions to exclude the opinions provided by Erin Mannen and Ian Noy.

    Human Factors Expert Witness

    Ian Noy has a Ph.D. and M.S. in industrial engineering from the University of Toronto. He is a distinguished human factors and ergonomics consultant and forensic expert with extensive background in innovative and
    applied safety research, industrial engineering, behavioral sciences, and science management.

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

    Mechanical Engineering Expert Witness

    Erin M. Mannen earned a Ph.D. in Mechanical Engineering from the University of Kansas in 2014, completed a Postdoctoral Fellowship in the Center for Orthopaedic Biomechanics within the Department of Mechanical and Materials Engineering at the University of Denver in 2017, and has been researching biomechanics for over 14 years.

    She is currently employed full-time as an assistant professor in the Mechanical and Biomedical Engineering Department at Boise State University in Boise, Idaho.

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

    Discussion by the Court

    Noy’s Report

    Boppy has moved to exclude the report of Plaintiffs’ expert witness, Ian Noy. Most of Boppy’s challenges do not relate to Noy’s qualifications or the relevance of his opinions, but rather, the reliability of his methodology. Specifically, Boppy takes issue with the following: (1) his failure to supply an alternative warning; (2) his reliance on the American National Standard Institute’s (“ANSI”) safety standards; (3) his failure to consider evidence regarding Clark’s refusal to follow the BNL’s warnings; and (4) his opinions about the design of the BNL.

    His failure to supply an alternative warning

    Boppy argued that an expert testifying on the inadequacy of a product’s warning is required to draft an adequate alternative warning. In the absence of a proposed alternative, Boppy argued, Noy’s opinions are unreliable. 

    Here, Noy was made personally aware of the label’s content through examining the BNL at issue. After examining the BNL and consulting a myriad of other materials, Noy highlighted alleged design deficiencies in the BNL’s safety alert signs on the product and its carrying case.

    Noy appeared to suggest that, for example, the alternative proposed warning would include a safety label with no busy background, the font would be larger, there would be a distinction made between suffocation hazard and positional asphyxia hazard, there would be a description provided as to the nature and severity of hazards, and there would be a more effective message prohibiting “chin-on-chest” and providing contrasting symbols for “chin-on-chest” and “chin-off-chest” positions. 

    The Court found that “it would be simplistic to view [Noy’s] failure to ‘draft’ an alternative warning as being fatal to his opinion,” in light of the reasoning gleaned from his report and his expertise in human factors engineering.

    His reliance on the American National Standard Institute’s (“ANSI”) safety standards

    Boppy also challenged Noy’s reliance on standards from the American National Standards Institute (“ANSI”). According to Boppy, there is no ANSI standard that applies to the BNL or any baby lounging products.

    It is noteworthy that Noy’s  report summarizes ANSI Z535’s key requirements, and uses those requirements to outline the deficiencies in BNL’s warning label. According to the Court, this is not a situation where an expert is attempting to substitute scientific methodology for their personal observations.

    Boppy also challenged Noy’s reliance on ANSI standards as a substitute for user testing. 

    The Court held that Noy’s opinions are not unreliable just because his report offered a comparative analysis based on ANSI standards, rather than results from user testing on the BNL’s warnings. While having expert testimony on this point would certainly aid Plaintiffs in proving causation, it is not essential for Daubert purposes.

    His failure to consider evidence regarding Clark’s refusal to follow the BNL’s warnings

    Boppy argued that Noy’s opinion is unreliable because he failed to consider evidence regarding Clark’s failure to follow the BNL’s warnings. The Court is unconvinced. In his deposition, Noy stated that Clark’s deposition was made available to him when he generated his expert report. Additionally, Noy confirmed that he knew Clark did not read the BNL’s labels. 

    His opinions about the design of the BNL

    Boppy contended that Noy’s “report is littered with statements” that offer opinions about the BNL’s design, a topic which Noy is not qualified to speak on.

    Boppy specifically takes issue with Noy’s statements about the hazard control hierarchy. According to Noy, the hazard control hierarchy is “a widely accepted process for eliminating or mitigating hazards through prioritized intervention strategies.” 

    As a human factors expert, the Court held that Noy can incorporate the hazard control hierarchy, a theory “[d]eveloped within the fields of safety and human factors,” into his expert report. Moreover, Noy can acknowledge that, for example, Boppy did not explore design alternatives and that Boppy did not conduct studies to inform safe product design, without opining on the biomechanical or related mechanism design defects in the BNL. 

    Mannen’s Report

    Boppy filed a motion to exclude Erin Mannen’s expert report, which relates to the alleged design defects of the BNL. Boppy argued that Mannen (1) failed to consider the material facts of this case, (2) her opinions violate Rule 26, (3) she is not qualified to opine on cause of death, and (4) her opinion fails to account for alternative causes.

    She failed to consider the material facts of this case

    According to Boppy, Mannen failed to consider the facts and circumstances surrounding D.B.’s death. It is true that Mannen did not review Clark’s deposition before writing her report. Mannen did, however, consider Plaintiff’s Complaint, the autopsy report, photos of the reenactment of the incident, and the coroners file which contained the Howard County Police report.

    Mannen explained that even taking into consideration the unsafe sleeping practices exercised by Clark, the BNL’s defective design was a substantial factor in D.B.’s death.

    Boppy also takes issue with Mannen’s report being premised on an infant’s “ideal body position” in the product, when here, D.B. was placed on her side. When confronted with this discrepancy, Mannen explained that she “understand[s] that there was a blanket, and . . . that the baby was partially on her side, but that [did not] change the fact that even in an ideal body position, [she had] identified all these hazards in the [BNL].”

    Mannen believes that there are inherent hazards in the BNL’s design, even if there is no misuse of the product or unsafe sleeping practices employed. The Court held that Mannen’s opinions are not deprived of a sound factual basis just because her opinion hones the BNL’s alleged inherent design flaws.

    Her Opinions Violate Rule 26

    According to Boppy, Mannen’s report should be excluded under Rule 26 because she has not shared information about the underlying incidents, products, and manufacturers included in the 2019 and 2022 U.S. Consumer Product Safety Commission (“CPSC”) studies her report relies on. In her report, Mannen concluded that, “[b]ecause of the similarities in the designs of inclined sleep products and the Boppy Newborn Lounger Pillow products . . . the concepts from our published in vivo biomechanics studies can be applied to the Boppy Newborn Lounger Pillow.” This is problematic, Boppy argued, because Mannen has refused to disclose the products involved in the studies. With the products left unidentified, Boppy states that it is “left to simply take her word for it,” that the unidentified products are similar to the BNL. 

    While Mannen cannot disclose the “incidents, products, and manufacturers” in her previous studies, the 2022 CPSC study provides photos of the sample pillows that were studied, and descriptions of the sample pillows, including their shape, mass, overall diameter or height and length, tube circumference or width, and thickness, as well as their cover and filler material. Albeit the 2019 CPSC study does not similarly provide photos of the fourteen inclined sleep products that were evaluated. However, Mannen’s report summarizes the sample measurements and characteristics of the products.

    Thus, Boppy is not simply left to take Mannen’s word for it—Boppy has within its possession sufficient information to challenge Mannen’s assertion that the sample products are functionally similar to the BNL. The Court held that Boppy can surely critique Mannen’s opinions and attempt to distinguish the sample products tested in the 2019 and 2022 studies from the BNL on cross-examination. But exclusion of her testimony under Rule 26(a) is not appropriate in this case.

    She is not qualified to opine on cause of death

    Boppy also contended that Mannen’s report offers an opinion on D.B.’s cause of death.

    Boppy asserts that by stating that “the design of the Newborn Lounger Pillow resulted in a dangerous biomechanical position that is capable of causing suffocation and/or positional asphyxia, like in the death of [D.B.],” Mannen impliedly offered a medical causation opinion.

    As a biomechanical expert, the Court held that Mannen can attest to the design deficiencies in the BNL she believes contributed to D.B. rolling and suffocating.

    Her opinion fails to account for alternative causes

    Boppy expressed its dissatisfaction with Mannen’s failure to consider alternative causes—namely, the blanket, the side-lying, co-sleeping, and misuse of the BNL on the couch. In her rebuttal report, Mannen addressed the foregoing biomechanical problems that Boppy’s expert states played a role in D.B.’s death and offers her dissent. 

    These alleged contributors to D.B.’s ultimate suffocation certainly may prove problematic for Plaintiffs. That said, the Court held that Boppy can press Mannen on the extent to which these alleged biomechanical problems contributed to D.B.’s movement and ultimate suffocation at trial.

    Held

    • The Court denied Plaintiffs’ motion to exclude the opinions provided by Dr. Ian Noy.
    • The Court denied Plaintiffs’ motion to exclude the opinions provided by Dr. Erin Mannen.

    Key Takeaway:

    The Daubert inquiry is a flexible one. Where, as here, an expert’s qualifications are clear and their methodology is sound, “helpful, legitimate expert testimony reaches the jury.”

    Boppy’s qualms with Noy and Mannen’s opinion will no doubt be addressed on cross-examination.

    Case Details:

    Case Caption: Clark Et Al V. The Boppy Company, Llc Et Al
    Docket Number: 1:22cv2120
    Court: United States District Court, Indiana Southern
    Order Date: November 06, 2024
  • Real Estate Valuation Expert Witness’ Testimony on Appreciation Impairment Damages Admitted

    Real Estate Valuation Expert Witness’ Testimony on Appreciation Impairment Damages Admitted

    108 named Plaintiffs admitted that they purchased their Shipyard properties for residential purposes.

    Plaintiffs each bought units on Parcel A of the former Hunters Point Naval Shipyard (“HPNS”). HPNS is a Superfund site where Tetra Tech EC, Inc. (“TtEC”) conducted environmental remediation work in certain areas years before the Plaintiffs bought their units. Plaintiffs now bring claims against the Tetra Tech Defendants for purported lost profits, in addition to other damages, under theories of fraud and misrepresentation (among other claims not addressed in this motion).

    Plaintiffs sought class certification, citing their claims for negligence, nuisance, common law fraud, and California statutory fraud.

    In support of their motion for class certification, the Plaintiffs submitted a nine-page declaration from their expert, Brett Reynolds. He investigated multiple areas of potential damages including appreciation impairment, and excess charges incurred by impacted Shipyards homeowners.

    The Defendants moved to exclude Reynolds’ opinions under Federal Rule of Evidence 702. They argued that Reynolds lacked the necessary expertise to offer the opinions in his declaration and that the methodology underlying his conclusions was fundamentally flawed, rendering his testimony unreliable.

    Real Estate Valuation Expert Witness

    Brett Reynolds is a licensed appraiser with almost 18 years of experience in the real estate industry, with an emphasis on valuation, acquisition, and asset management.

    He has a degree in economics from the University of Southern California and holds the top designations in the appraisal profession. Reynolds has been a Designated Member of the Appraisal Institute (MAI) since 2008 and a Certified Commercial Investment Manager (CCIM) since 2009. He has been a licensed appraiser in the State of California (Certified General License 042466) since 2007. He has testified as an expert witness in both Federal Tax Court and California State Court.

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

    Discussion by the Court

    Reynolds opined on the two primary sources of economic damages incurred by the class members: (1) appreciation impairment/ diminution in value of the Parcel A homes owned by the putative class members, and (2) excess tax charges/ Mello-Roos damages.

    For the appreciation impairment damages, Reynolds stated that he was provided with a list of 241 market-rate homes that had been sold on Parcel A as of August 2, 2018. Assuming an average appreciation impairment of 20.4%, he concluded that these units have suffered a total appreciation impairment of $55,523,536. Additionally, Reynolds calculated the amount of past Mello-Roos liabilities incurred by each of the 241 market-rate homes sold on Parcel A on the same date. Assuming certain Communities Facilities District (CFD) rates as specified in his declaration, Reynolds opined that the Parcel A homeowners have incurred $8,393,735.00 in Mello-Roos liabilities.

    Defendants said that Reynolds “has no relevant expertise on which to base his opinion on the cutoff date Plaintiffs use for the class definition.”

    However, Reynolds did not express a substantive opinion about the cutoff date for Plaintiffs’ class definition. Reynolds mentioned events that took place in 2018, but that is not in the context of giving an opinion as to why August 2, 2018, and not, say, another date in 2018, might be the proper cut-off date. Consequently, the Court overruled this objection.

    For Reynolds’ methodology, Defendants’ main contention is that Reynolds’ choice of index was wrong because it “measures different types of homes than those present at the shipyard” and also “measures non-representative neighborhoods.” The Court decided that the details of what Reynolds “did or didn’t take into account in running his analysis . . . may be grist for a good cross-examination at trial, but they do not play a material role in deciding whether [Reynolds’] work should be admitted under Rule 702.”

    According to the Court, Plaintiffs have not identified any common evidence that might warrant class certification. This shortfall is particularly problematic for causation, which is a necessary element of each of the claims for which they are seeking certification. Plaintiffs relied solely on the Reynolds declaration as the ostensible common proof of causation. The Reynolds declaration is also identified as the only common evidence of the damages the class suffered because of Defendants’ alleged fraud and negligent misrepresentation. But the Reynolds’ declaration did not even try to supply class-wide proof on these issues. Also, Reynolds did not offer any opinions whatsoever about causation. 

    Held

    The Court denied Defendants’ motion to exclude the testimony of Brett Reynolds.

    Key Takeaway:

    Reynolds investigated multiple areas of potential damages. Exclusion is denied because it was the Court’s opinion that the details of what Reynolds “did or didn’t take into account in running his analysis . . . may be grist for a good cross-examination at trial, but they do not play a material role in deciding whether [Reynolds’] work should be admitted.”

    Case Details:

    Case Caption: Pennington Et Al V. Tetra Tech, Inc. Et Al
    Docket Number: 3:18cv5330
    Court: United States District Court for the Northern District of California
    Order Date: December 23, 2024
  • Marketing Expert Witness’ Testimony on Consumer Perceptions Excluded Because His Survey is Flawed

    Marketing Expert Witness’ Testimony on Consumer Perceptions Excluded Because His Survey is Flawed

    Plaintiff Multiple Energy Technologies, LLC (“MET”) accused Under Armour of false advertising in relation to certain products that contain bioceramic powder. MET contended that Under Armour inaccurately claimed that the Federal Food and Drug Administration had determined that those products enhanced recovery.

    Under Armour sells activewear and sleepwear products directly to consumers. This includes the sale of products containing a competing bioceramic product known as Celliant, which is manufactured by Hologenix, LLC (“Hologenix”). Under Armour advertises these products separately from their other product offers and as helping to promote recovery, especially for athletes.

    Plaintiff MET brought four claims against Defendant Under Armour, Inc.: violation of the Lanham Act, violation of the Sherman Act, misappropriation of trade secrets; breach of non-disclosure agreement; tortious interference with contract; tortious interference with prospective business expectancies; unjust enrichment; unfair competition; conversion; a claim for an accounting; and a claim for injunctive relief.

    MET retained Dr. Thomas J. Maronick, a survey expert who designed “a two-part online consumer study to determine consumers’ perceptions of claims Under Armour [made] about Celliant on the landing pages of its website.” Maronick stated that, under well-established survey principles, “each of the two parts of the survey had a Test Group and a Control Group[.]”

    Under Armour filed a motion to exclude the expert report of Thomas J. Maronick.

    Marketing Expert Witness

    Thomas J. Maronick is an Emeritus Professor of Marketing in the School of Business and Economics at Towson University in Towson, Maryland. His educational background includes a BA in Philosophy from St. Thomas Seminary, an MSBA from the University of Denver with a major in Marketing, a Doctorate in Business Administration (“DBA”) from the University of Kentucky with a major in Marketing, and a JD from the University of Baltimore, School of Law. He is an inactive member of the Maryland Bar.

    At Towson University, he taught undergraduate and graduate courses in strategic marketing, consumer behavior, and marketing research. He has also taught graduate and executive development courses in strategic marketing and marketing research at several universities in the Baltimore and Washington, D.C., areas.

    His professional background includes serving as the Director of Impact Evaluation in the Bureau of Consumer Protection at the Federal Trade Commission (“FTC”) from 1980 to 1997. In that capacity, he was the in-house marketing expert for all divisions of the Bureau, advising attorneys and senior management on marketing aspects of cases being considered or undertaken by Commission attorneys.

    Get the full story on challenges to Thomas J. Maronick ‘s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    In Survey 1, the test group was shown actual Under Armour landing pages, one of which contained the statement, “Products powered by Celliant have been determined by the FDA to increase localized circulation, leading to faster recovery[.]” The control group was presented with landing pages that contained the statement, “The FDA has not made a determination about whether products powered by Celliant increase localized circulation leading to faster recovery.” The images accompanying these pages were different—the test group saw an image of a woman wearing a jacket, and the control group saw an image of two men wearing jackets. 

    In Survey 2, the test group was shown an image of a woman wearing shorts with the statement, “Products powered by Celliant have been determined by the FDA to increase localized circulation leading to faster recovery.” Id. at 15. The control group was shown an image of a man wearing a short-sleeved shirt with the language “POWERED BY REDWAVE. Not intended for use as a medical device.”  At Maronick’s deposition, he recharacterized his opinion related to Survey 2 by stating that it was not a test/control survey.

    Maronick’s Testimony

    Maronick concluded based on his two surveys that “Under Armour’s claims about increased circulation and faster recovery are Important or Very Important in consumers’ decision to buy Under Armour products with either Celliant or Redwave fabric.”

    Maronick identified three important findings from his surveys:

    (1) “a statistically higher percentage of respondents seeing the Under Armour webpage claiming that products ‘Powered by Celliant have been determined by the FDA to increase localized circulation, leading to faster recovery’ believe the Under Armour products will provide the increased circulation and faster recovery benefits claimed than do respondents who saw language that ‘the FDA had not made a determination whether products made with Celliant increase circulation and lead to faster recovery’”

    (2) “a statistically higher percentage of respondents seeing Under Armour’s claims made in its webpages for its sleep ware products that the products ‘Powered by Celliant have been determined to increase localized circulation, leading to faster recovery’ believe they will achieve those benefits than do respondents for Under Armour products seeing claims that the Under Armour products that are ‘Powered by Redwave’ and ‘are not intended for use as a medical device’”

    (3) “in both Study 1 and Study 2, Under Armour’s claims about increased circulation and faster recovery are Important or Very Important in consumers’ decision to buy Under Armour products with either Celliant or Redwave fabric.” 

    1. Survey 1

    Parties’ Position

    As to Survey 1, first, Under Armour argued that Maronick’s survey is flawed because there are material differences in the control image and the test image.

    In Maronick’s survey, the images he used for the control and test groups were very different, with one image showing a woman, and the other image showing two men wearing the product. The two images also included different language that had no bearing on the “FDA determined” language and placed the FDA language in different places on the images. 

    Second, Under Armour argued that the language Maronick used for the control group was a negative statement of the product rather than testing for the absence of the FDA language, which is the proper procedure for test/control surveys. 

    Third, Under Armour argued Maronick misled survey respondents by using different control language in two different questions that were supposed to use the same control language.

    Fourth, Under Armour argued Maronick failed to follow basic rules of survey bias by: (1) failing to rotate multiple choice answers for the survey respondents to guard against order bias; (2) failing to take non-response factors into account; (3) using leading questions and thus failing to guard against demand effects; and (4) failing to describe the target population.

    In response, MET argued that the flaws in Maronick’s study go to the weight, and not the admissibility of his opinions. 

    Analysis

    A proper control should be as similar to the experimental stimulus as possible, because if there are multiple differences between them, it may be impossible to determine which of those differences caused any disparity between the respondents’ reactions to them. An improper control undermines the reliability of a survey because the lack of a proper control makes it difficult to assess responses.

    The Court held that the control was improper because the test group saw an image of a woman wearing a jacket, and the control group saw an image of two men wearing jackets.  In addition to the different images, Maronick also improperly showed the test group language that was not shown to the control group. The test group image included the phrase “ALL DAY ALL NIGHT – ” and ” – RECOVERY[,]” but the control group image did not. The Court held this to be a material difference, as the test group was shown additional recovery-promoting language that could have reinforced or emphasized the FDA’s determination. 

    The Court added that Maronick’s approach to the language used in the control and test groups was also flawed because rather than excluding the “FDA determined” language, he improperly made it a negative claim—”the FDA has not made a determination . . . .” 

    Beyond the control issues, at least three of the other flaws Under Armour identified supported exclusion. The Court found that Manorick failed to rotate answers, did not take into account non-response and did not identify the target population.

    While these issues with the control and test groups may not warrant exclusion on their own, they weigh in favor of exclusion when viewed in combination with the other flaws in the survey.

    2. Survey 2

    As to Survey 2, first, Under Armour stated that Maronick admitted that this survey is not a “test/control” survey as he states in his expert report, but was instead two separate consumer perception surveys. Under Armour argued that because of this, any of Maronick’s report and testimony that relate to Survey 2 should be excluded because experts cannot recharacterize or alter their opinions in a deposition.  Second, Under Armour argued that even if Survey 2 were two separate consumer perception surveys, Maronick’s opinions on Survey 2 are still inadmissible because: (1) it was not a test/control survey, so Survey 2 “is not a survey capable of measuring any causal impact of any particular language[;]” and (2) the two purported surveys do not “fit” the case. 

    In response, MET argued that Survey 2 was a consumer perception survey, not a test/control survey, so it should not be excluded because a control group is not necessary when the survey is not seeking to show causality.

    It is noteworthy that Maronick claimed in his expert report that Survey 2 was a test/control survey. But at his deposition, he abandoned this opinion. Additionally, even if Survey 2 were still valid without a control, Maronick improperly drew the respondents’ attention to the language in question by drawing a box around the language and asking the respondents “What does the highlighted statement say or suggest about this product?”

    Even if the Court were to accept Manorick’s purported explanation that Survey 2 was really two separate surveys, then each of those surveys also lack a control, which is a “fatal flaw[.]”

    Held

    The Court granted Under Armour’s motion to exclude Dr. Thomas J. Maronick’s expert report.

    Key Takeaways:

    • Survey 1 contained certain flaws that, standing alone, may have been technical and pertained more to the weight of the evidence. However, the distinction between weight and admissibility is sometimes a matter of degree. The Court concludes that the flaws in Survey 1 are of such a degree that they cumulatively render Maronick’s opinion unreliable under Rule 702. 
    • Maronick’s testimony and report on consumer perceptions of Under Armour’s claims do not pass muster under Rule 702.

    Case Details:

    Case Caption: Multiple Energy Technologies, Llc V. Under Armour, Inc
    Docket Number: 2:20cv664
    Court: United States District Court, Pennsylvania Western
    Order Date: December 23, 2024
  • Marketing Expert Witness’ Testimony on Consumer Confusion Deemed Speculative

    Marketing Expert Witness’ Testimony on Consumer Confusion Deemed Speculative

    Plaintiff IEP Technologies, LLC brought this action against Defendants KPM Analytics, Incorporated f/k/a Statera Analytics, Incorporated and KPM Analytics North America Corporation f/k/a Process Sensors Corporation (collectively “KPM”) for allegedly violating IEP’s trademark. The complaint asserts violations of the Lanham Act, besides a claim for common law trademark infringement and unfair competition.

    Genuine disputes of material fact exist regarding the likelihood of confusion between the parties’ hexagonal marks. Given the noticeable similarity of the marks, and the fact that both IEP and KPM sell and advertise similar products to the same customer base, there is a potential for actual consumer confusion or bad faith by KPM in selecting its mark.

    Following discovery, the parties filed competing motions for summary judgment on all of IEP’s claims. KPM filed a motion exclude the report and testimony of IEP’s proffered industry expert, Steve Egenolf.

    Marketing Expert Witness

    Steven Egenolf joined CSC Publishing as a marketing and advertising manager in 1998. He was the eastern sales manager for CSC Publishing from May of 1998 through August of 2021. Egenolf has two decades of experience working with hundreds of companies in the powder and bulk processing industry and reviewing their marketing activities. He has regularly attended industry trade shows, including the Bulk and Powder Solids trade show attended by KPM and IEP in 2018.

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

    Discussion by the Court

    KPM argued that IEP’s proposed marketing expert witness, Steve Egenolf, should be barred from testifying because:

    1. He failed to use reliable principles and methods.
    2. He is not qualified to opine on whether customers are likely to be confused by KPM’s mark.
    3. His report and testimony would not assist the jury.

    Reliability of Methods

    KPM claimed Egenolf’s methods were unreliable because he did not conduct a consumer survey. Although consumer surveys are a common tool for evaluating the likelihood of confusion, the Court noted they are not mandatory.

    The Court noted that Egenolf did not intend to testify about the ultimate factual issue of whether confusion was likely. Instead, his testimony focused on the eight Pignons factors, which guide courts in assessing the likelihood of confusion. These factors include considerations such as the similarity of the marks, products, and classes of prospective purchasers. Courts generally regard expert testimony on these factors as valuable.

    The Court further observed that expertise in the relevant industry can compensate for the absence of a consumer survey. Egenolf’s testimony, grounded in his extensive industry experience, sought to address these factors rather than proving actual confusion.

    The Court held that while Egenolf did not rely on a survey, his analysis of the Pignons factors, based on his industry expertise, was consistent with legal precedents and provided relevant insights for evaluating the likelihood of confusion.

    Qualifications of the Expert

    KPM argued that Egenolf lacked qualifications to address the Pignons factors, claiming he was neither a trademark expert nor experienced in the relevant industry.

    His report draws on his extensive experiences to analyze the likelihood of confusion factors by opining, for example, that he has never seen another hexagon logo besides IEP’s and KPM’s trademarks. Given the depth of his experience in the powder and bulk processing industry, he need not, as KPM contends, have prior experience in other trademark cases.

    Egenolf’s experience qualifies him to opine on several of the Pignons factors—namely, the similarity between the two marks, the similarity of the goods, the relationship between the parties’ channels of trade and advertising, the classes of prospective purchasers, and the strength of IEP’s mark.

    But the Court agrees with KPM that Egenolf lacks the personal knowledge or experience to testify as to the sixth and seventh factors—namely, evidence of actual consumer confusion and KPM’s intent in adopting its mark. His report discloses no basis for his opinions on those factors, and the paragraphs in his report that touch on those factors are entirely speculative.

    Improper Conjecture

    The Court found that Egenolf’s report included speculative claims about how others in the industry might view the likelihood of confusion factors he analyzed. The report repeatedly asserted that “people in the industry would reach the same conclusion” as he did regarding these factors. However, these statements were deemed speculative without a consumer survey or other direct evidence.

    The Court concluded that Egenolf’s statements about what other people in the industry might conclude lacked evidentiary support.

    Jury Assistance

    KPM argued that Egenolf’s testimony would not assist the jury because laypeople could independently evaluate the similarity of the trademarks. The Court clarified that Egenolf could not testify about ultimate issues, such as evidence of actual consumer confusion, KPM’s intent in adopting its mark, or determine whether confusion is likely, which falls upon the jury to decide. His testimony about the remaining likelihood of confusion factors, however, could help the jury given his experience in the relevant powder and bulk processing industry.

    Held

    The Court granted in part and denied in part KPM’s motion to exclude the expert testimony and report of Plaintiff’s marketing expert witness, Steve Egenolf. The Court held that certain portions of the report are stricken and Egenolf may not testify about:

    1)”people in the industry would come to the same conclusion” as him regarding the Pignons factors,

    (2) regarding evidence of actual confusion, and

    (3) concerning KPM’s intent in adopting its mark. 

    Key Takeaway:

    While Egenolf’s industry experience in the relevant powder and bulk processing industry was deemed valuable for analyzing several Pignons factors, the Court decided that Egenolf will not be permitted to testify about evidence of actual consumer confusion, KPM’s intent in adopting its mark, or the ultimate issue of whether confusion is likely, which falls upon the jury to decide.

    Case Details:

    Case caption: Iep Techs., LLC v. KPM analytics, Inc.
    Docket Number: 1:21cv10417
    Court: United States District Court, Massachusetts (Boston)
    Dated: December 23, 2024