This matter stems from a motor vehicle accident that occurred on May 21, 2023 when the vehicle driven by Plaintiff, Juwan Brown, and occupied by his parents, Clarence and Tawanna Brown, was struck by a commercial vehicle driven by Dashawn Brooks.
The commercial vehicle was owned by Penske Truck Leasing Co. and leased by Defendant Mayflower Laundry & Linen. As a result of the accident, Plaintiffs have alleged that they have sustained various injuries and damages.
The Defendant retained Yvonne Dailey “to coordinate an analysis of the billing and reimbursement dates for services provided to [Plaintiffs] due to” the motor vehicle accident at issue in this case.
In her report, Dailey compared the amounts charged for Plaintiffs’ medical care arising from the accident with the amounts permitted by the fee schedules under the New Jersey Personal Injury Protection (“NJ PIP”) fee schedule and Pennsylvania’s “Act 6” schedule. However, Dailey’s analysis did not include the amounts that were actually paid for the services.
Plaintiffs challenged the reliability, relevance, and fit of Dailey’s opinion, asserting that her testimony should be precluded under Federal Rule of Evidence 403. Plaintiffs argued that the charges reflected in Dailey’s report “have already been reconciled with Plaintiffs’ health insurers [and] will be presented to the jury in the form of liens which will be sanitarily presented in compliance with the collateral source rule.
Medical Billing Expert Witness
Yvonne Dailey has over 20 years of experience in the medical billing and coding field. As a Certified Professional Coder (CPC) and Certified Professional Biller (CPB), she helps clients understand the importance of accurate coding and documentation in the reimbursement process.
Her specialties include Infectious Disease, Family Practice, Endocrinology, Interventional Radiology, Internal Medicine, OB-Gyn, Chiropractic, Mental Health, Podiatry, Substance Abuse, Oncology, Hematology, Ophthalmology, Dental (medical side), and Orthopedics.
The defense expert created spreadsheets identifying the charges from Plaintiffs’ medical providers, and opining as to the allowable amounts under NJ PIP and Act 6 for each charge. However, as Plaintiffs pointed out, Plaintiffs’ health and auto insurers have already paid for the treatment which Dailey analyzed.
Under Pennsylvania law, “if the exact amount of [past medical] damages has been decided, or payment has been made and accepted in full, the Plaintiff’s recovery is limited to that amount and there is no issue for the factfinder to determine.”
Plaintiffs asserted that Dailey’s report reviews the amounts previously billed which have already been paid and Defendants did not dispute this characterization. Because the measure of damages for past medical damages is the amount accepted by the provider as payment in full and that amount is readily available, the Court concluded that Dailey’s analysis is not relevant to any issue the jury must decide and would not aid the jury.
Held
The Court granted the Plaintiffs’ motion to preclude the testimony of Yvonne Dailey.
Key Takeaways
Under Pennsylvania law, “if the exact amount of [past medical] damages has been decided, or payment has been made and accepted in full, the Plaintiff’s recovery is limited to that amount and there is no issue for the factfinder to determine.”
Because the measure of damages for past medical damages is the amount accepted by the provider as payment in full and that amount is readily available, the Court concluded that Dailey’s analysis is not relevant to any issue the jury must decide and would not aid the jury. Therefore, Dailey’s analysis was precluded.
Please refer to the blog previously published about this case:
By this suit, Plaintiff Anthony Guernon brought claims of negligence and negligence per se against Defendant Joel Barroso and for vicarious liability against Barroso’s Employer, Stevens Transport, Inc. (“Stevens Transport”), arising out of a motor vehicle accident which occurred on May 3, 2021, In El Paso County, Colorado. Following several extensions, the parties were required to designate rebuttal experts on or before August 26, 2024.
On that date, Defendants submitted a document in which they designated the following expert witnesses:
4. Margot Burns, a rehabilitation specialist and life care planner; and
5. James Desmond, an expert on the standard of care in the trucking industry.
Guernon objected that Karraker, Morgenstern and Stull, and Burns actually are affirmative, not rebuttal, witnesses, and therefore their designations are untimely and should be stricken. He further claimed Karraker and Morgenstern asserted opinions beyond their expertise.
Accounting Expert Witness
Jon Karraker is an expert witness in the field of accounting of personal injury losses in both the private and business sector.
Philip Stull completed his residency in orthopedic surgery at the New York Orthopedic Hospital/Columbia-Presbyterian Medical Center in New York City and graduated in 1993. He then received specialized training in sports medicine by completing a year-long fellowship at the University of Colorado and Aspen Valley Hospital in Aspen, Colorado. He has experience treating professional, collegiate, high school, and all levels of recreational athletes.
Margot Burns is a Clinical Case Manager, Clinical Supervisor, Behavioral and Vocational Specialist encompassing all phases of brain injury rehabilitation from acute neurobehavioral and coma management to post-acute and outpatient, community-based services. Burns holds a Master of Science in Rehabilitation Counseling and a Certificate in Life Care Planning.
James Desmond is a Certified Director of Safety Certificate, an OSHA 30 Hour General Industry Certificate, and a Driver Improvement Instructor/Trainer Certificate. Desmond is a Department of Transportation Designated Employer Representative, holds a Commercial Drivers’ License and is the President of Coastal Carrier Compliance and Consulting.
The Court cannot properly assess these arguments, however, because they are stated at such a high level of generality that they present no argument at all. Essentially, Guernon has done little more than state what he seeks to prove – that the witnesses are actually affirmative experts and/or that their opinions exceed their proper area of expertise. The Court is neither required nor inclined to consider such “cursory, unsupported, or otherwise inadequately briefed arguments.”
Moreover, the Court held that the difficulty in analyzing what little argument is discernable in the motion is compounded by Guernon’s failure to provide the Court with the allegedly problematic defense expert reports, his own experts’ reports for purposes of comparison, or any of the experts’ curriculum vitae.
Guernon’s belated submission of the challenged reports in connection with his reply brief does not cure his initial failure to produce them, especially when the reply does nothing more than invite the Court to peruse the documents itself for evidence in support of his prior, inadequate arguments. As a result, the Court denied the motion to strike the designations of these four experts as improper.
With regard to the fifth expert, Desmond, who will testify to the standard of care in the trucking industry, Guernon asserted his opinion is irrelevant because Stevens Transport has conceded vicarious liability for the actions of Barroso. Guernon pointed to nothing in the record demonstrating Stevens Transport has made such a concession, and Stevens Transport denies it has done anything other than acknowledge that if – and only if –Barroso ultimately is found liable for negligence, it will be vicariously liable for any damages caused thereby. The issues addressed by Desmond’s report therefore appear to remain in play in this lawsuit. Therefore, the Court denied the motion to strike his testimony.
Held
The Court denied the Plaintiff’s motion to strike or exclude the opinions untimely and improperly disclosed.
Key Takeaway:
Guernon objected that Karraker, Morgenstern and Stull, and Burns actually are affirmative, not rebuttal, witnesses, and therefore their designations are untimely and should be stricken. He further claimed Karraker and Morgenstern asserted opinions beyond their expertise. Essentially, Guernon has done little more than state what he seeks to prove – that the witnesses are actually affirmative experts and/or that their opinions exceed their proper area of expertise. The Court is neither required nor inclined to consider such “cursory, unsupported, or otherwise inadequately briefed arguments.”
Case Details:
Case Caption:
Guernon Et Al V. Barroso Et Al
Docket Number:
1:22cv2547
Court:
United States District Court for the District of Colorado
Plaintiff Old Gate Partners, LLC (“Old Gate”) alleged that Paddock is liable for contamination of a property (“the Property”) currently owned by Old Gate. Paddock retained Michael P. Hedden to provide valuation opinions of the Property’s “highest and best use and market value.”
As a part of his analysis, he utilized an appraisal technique known as the sales comparison approach. Based on this approach, Hedden concluded that the Property’s market value was not less than $9 million as of May 2017 and not less than $10.37 million as of April 2023.
Old Gate sought to exclude Hedden’s testimony on the grounds the he is unqualified
On November 29, 2023, Old Gate filed its first motion to preclude Hedden’s testimony. Old Gate sought to exclude Hedden’s testimony on the grounds the he is unqualified, that certain of his proffered opinions are irrelevant, and that his analysis is unreliable.
The Court granted the motion in part and denied it in part. Specifically, the Court rejected challenges to Hedden’s qualifications, and it excluded as irrelevant his opinions about Milford’s zoning intentions and entrepreneurial profit.
The Court also excluded as unreliable Hedden’s valuation opinions of the Property. The Court concluded that his sales comparison analysis relied on “unclear, unsupported rationales”, and that Hedden failed to disclose “underlying data sufficient to replicate his analysis”.
Hedden’s report provided “no discernable methodology” sufficient for the Court to understand how Hedden determined adjusted sale prices
Further, the Court also found that Hedden had categorized certain adjustment factors using qualitative descriptors like “superior” or “inferior”, without ascribing quantitative dollar amounts or percentage adjustments. As a result, the Court reasoned, Hedden’s report provided “no discernable methodology” sufficient for the Court to understand how Hedden determined adjusted sale prices, and, ultimately, his 2017 and 2023 valuations.
However, because Hedden could potentially clarify his methodology, the Court granted the Motion as to the valuation opinions without prejudice to Hedden filing an amended report that corrects the shortcomings identified by the Court.
On June 19, 2024, Paddock filed an expert report supplement from Hedden. On August 13, 2024, Old Gate filed its second motion to exclude Hedden’s testimony.
Old Gate argued that the supplement is insufficient to correct the infirmities identified by the Court in its prior Ruling, and that Hedden’s 2017 and 2023 valuation opinions should remain excluded.
Real Estate Appraisal Expert Witness
Michael P. Hedden has over 43 years of real estate appraisal, valuation and consulting experience. Hedden is a Managing Director and, in this role, specializes in providing valuation, litigation support, and expert testimony services as a knowledgeable real estate professional in all aspects of market analysis and valuation of real property. Michael has experience in the appraisal of industrial, commercial, residential, and special purpose property including hospitality, hospital, and healthcare facilities.
In its prior Ruling, the Court provided leave for Hedden to file an amended report that explained, “with reasonable clarity and precision, the methodology that he used when he made his adjustments.” In his expert report supplement, Hedden included updated sales adjustment grids for his 2017 and 2023 valuations. Under the heading of “Cumulative Adjusted Price,” these grids replace the prior “Superior” and “Inferior” designations of the original report with percentage value adjustments. It appears to the Court that these percentage value adjustments are only at intervals of 5 percent, either 5 percent, 10 percent, 15 percent, or a dash, indicating no adjustment. In his narrative explanations for how he arrived at these intervals, Hedden largely relied on “his experience and professional judgment.”
The Plaintiff has raised concerns about this disclosed methodology. The Court shares these concerns about whether Hedden’s selected numerical adjustments are “based on sufficient facts or data,” or whether these adjustments are subjective, speculative, or arbitrary.
In the Court’s view, this raises serious concerns about whether Hedden’s experience and professional judgment can fill the gap between qualitative observations and quantitative adjustments to property valuations.
However, because the parties are scheduled for a bench trial, the Court “has considerable discretion in admitting the proffered testimony.”
The Court chooses to exercise that discretion here and will admit Hedden’s valuation opinions. In the Court’s view, Hedden’s supplemental report is sufficient to render his methodology discernable and understandable to the Court.
Held
The Court denied the Plaintiff’s second motion to preclude the testimony of Michael P. Hedden.
Key Takeaway:
Rather than delaying the case through a detailed scrutiny of Hedden’s property comparison adjustments, the Court will reserve judgment and decide “after the evidence is presented whether it deserves to be credited by meeting the requirements of Daubert and its progeny.”
Old Gate is free to vigorously cross examine Hedden on the reliability of his valuations. Additionally, Old Gate may raise arguments at a later stage that Hedden’s testimony should be disregarded by the trier of fact because it fails to meet the threshold for admissibility under Daubert.
Case Details:
Case Caption:
Old Gate Partners, Llc V. Paddock Enterprises, LLC
Docket Number:
3:18cv1657
Court:
United States District Court for the District of Connecticut
Plaintiffs Molly C. and Naomi L. are beneficiaries of group health insurance plans administered by Defendant Oxford Health Insurance, Inc. (Oxford). Beginning in 2019, Plaintiffs were diagnosed with eating disorders, received outpatient nutritional counseling as part of their treatment, and submitted claims for that counseling to Oxford, which denied them on the ground that their plans did not cover those services. Because Oxford did cover nutritional counseling for diabetes, Plaintiffs contended that its failure to do the same for eating disorders violated the Mental Health Parity and Addiction Equity Act (Parity Act).
Plaintiffs sought to certify a class consisting of all persons who were covered under an Oxford group health insurance plan in New York, were diagnosed with one of five specified eating disorders (EDs), received outpatient nutritional counseling from November 30, 2015 to the present (the Class Period), and either (a) submitted claims for that counseling, which Oxford denied on the ground that it was “not a covered benefit” (the Denied Claims Subclass), or (b) did not submit claims (the No Claims Subclass). In order to establish the required numerosity of each proposed subclass, Plaintiffs rely on two expert declarations from Frank Fox, Ph.D., who estimates — based on claims data supplied by Oxford — that during the Class Period at least 458 Oxford members with EDs submitted at least 1,461 claims for outpatient nutritional counseling that were denied because the treatment was “not a covered benefit.”
Motion to Exclude
Fox also opines that, during the same period, 1,300 to 1,795 Oxford members per year would have received nutritional counseling for their EDs, had it been a covered benefit, and that 513 to 709 Oxford members per year actually did receive such treatment.
Frank Fox is an economist, who has owned and operated his own consulting practice since 1996. He earned his Ph.D. in Economics from the University of Washington in 1977. He has extensive experience providing expert testimony estimating utilization and cost expenditures for various disease states.
In his initial declaration, Fox (i) estimates the number of Oxford members in New York who received nutritional counseling for EDs between November 30, 2015 and the present (the Study Period); (ii) analyzes the claims data produced by Oxford (OXF0032564) to independently determine the number of claims for such counseling that were submitted over the Study Period, as well as those that were denied on the ground that the services were not covered; and (iii) compares the two sets of figures, offering a hypothesis as to the difference.
In his supplemental declaration, Fox defends his analysis against Michael J. Petron’s challenges. He disagreed with Petron’s definition of an “allowed” claim, calling it “overly expansive.” Even using that expansive definition, Fox counts 413 unique members whose nutritional counseling claims for EDs were denied before Oxford’s 2021 reconfiguration, and estimates that there were 430 (still well above the numerosity threshold) across the entire Study Period. Fox also “disagree[s] with Petron’s conclusion that it is not possible to estimate the population of individuals within the proposed Class from the provided Claims Data.” He argued that Petron’s “conjectured hypothetical” that some nutritional counseling claims might have been denied for other reasons is “meaningless,” because, by definition, a member with an ED whose claim was denied for lack of coverage meets the criteria for inclusion in the class.
Lastly (as relevant here), Fox agreed that his utilization estimates for nutritional counseling are based on “statistics with degrees of uncertainty,” but defended his conclusions as “reliable and reasonable” in light of available data.
In their class certification papers, Plaintiffs relied on Fox’s work to show that both the Denied Claims Subclass and No Claims Subclass were sufficiently numerous to permit certification.
Reliability
Oxford challenged the reliability of Fox’s opinions on several different grounds.
Rule 26(a)(1)(B)
During his deposition, Fox drew a distinction between a declaration and an expert report. He explained that his initial declaration (at 14 pages, not including his CV and list of prior testimony) “was intended to be succinct,” whereas, in his experience, expert reports are longer, “more like 40 to 80 pages,” “much more in depth, [with] much more support, much more analysis, much more exploration of why I reached the conclusions I did, more quantitative, more qualitative.” From this testimony, Oxford concluded that Fox has “admitted” that neither of his declarations is an expert report “as required by the Federal Rules of Civil Procedure,” and has “fully acknowledged” that his testimony “does not even come close to meeting the exacting standard for reliable testimony.”
The Court held that Fox’s declarations satisfy this standard. Although Oxford argued that Fox failed to “test certain assumptions,” failed to “comprehensively analyze the studies he relied upon,” and failed to “document his assessment” of those studies, these critiques go to the quality of his analysis, not his compliance with Rule 26(a)(2)(b).
Insufficient Data
Oxford argued that Fox’s estimates are unreliable because he had insufficient data to “validate his assumptions.”
Specifically, Oxford asserted, Fox failed to validate his “assumption that the age and sex mix of Oxford’s ERISA plan members is comparable to that of the entire state [of] New York,” because he “didn’t have the data.” But Oxford — which does have the data — offers no reason to believe that the age and sex mix of its covered population in New York differs in any material respect from the age and sex mix of all New York residents.
Oxford also faults Fox for relying on the 2019 Ward Study for his estimates of “one-year treatment rates by condition,” without “validating his assumptions.” At deposition, Fox explained that “he did not have any ‘better data than the originators of the study.”
According to Oxford, this rendered Fox’s opinions “unreliable and subject to exclusion.” The Court noted that Defendant presented no inconsistent data or contradictory research. Nor does it suggest that experts in Fox’s field cannot “reasonably rely” on prior academic research such as the Ward Study to construct healthcare utilization models.
The courts draw a distinction between insufficient data and imperfect data. If a proposed expert lacks the basic information required by professionals in his field to form an opinion, his testimony will be excluded.
The Court held that Defendant has failed to show either that Fox’s opinions were based on “insufficient data,” in violation of Rule 702, or that he relied upon facts or data beyond those that experts in his field “would reasonably rely on,” in violation of Rule 703.
Unrepresentative Studies
Lastly, Oxford contended that the studies upon which Fox relied rendered his opinions unreliable because they were too old, not specific to New York, or “cherry-picked” to support Fox’s conclusions. For example, Oxford questioned Fox’s reliance on the “first nationally representative study of eating disorders in the United States,” because he “did not perform any analysis to confirm that this data was representative of recent nutritional counseling rates in New York for eating disorders.” But Fox did not rely on the Hudson Study to determine “recent nutritional counseling rates in New York.” He relied on it (in part) to determine overall “treatment rates” for EDs. And Oxford offered no reason to believe that overall ED treatment rates in the State of New York are materially different from those in the rest of the country.
The research that Fox actually relied on for his “low estimate” (that 24% of the Oxford members in New York who were in treatment for their EDs received nutritional counseling as part of their treatment) was the Yager Survey, published in 1989, based on a survey of 641 American women with eating disorders. Oxford characterizes that data as “outdated” and argues that it “cannot be used to reliably forecast current eating disorder treatment trends.”
The Court held that although Oxford might have raised questions about some of the assumptions made by Fox, it has not shown that his reliance on the Ward Study, the Hudson Study, or the Yager Survey is “so ‘speculative,’ ‘conjectural,’ or ‘unrealistic and contradictory’ that they render his estimate of [ED treatment utilization] fundamentally unreliable.”
Held
The Court denied the Defendant’s motion to exclude Frank Fox’s opinions.
Key Takeaways:
An expert need not base his or her opinion on the best possible evidence, regardless of availability, but upon good grounds, based on what is known.
Imperfect data goes to the weight of the expert’s opinion, not its admissibility, and is not grounds for exclusion.
This matter involves an incident that occurred on May 29, 2020, while Plaintiff, David Zuniga was present during the George Floyd protests in Grand Park, Downtown Los Angeles. During this time, Zuniga and his experts contended that he was struck with a nonlethal projectile to his head by Defendant Officer Aaron Green. Officer Green, and the other named officer Defendants were assisting in controlling a crowd of protestors who were unlawfully protesting in the Grand Park area, after an unlawful assembly was declared and a dispersal order had been given.
Defendant filed a motion to preclude Plaintiffs’ Law enforcement expert, Roger Clark‘s report and opinions on the grounds that such evidence is irrelevant, is improper and misstates the law, is speculative, and would unduly prejudice Defendants. Plaintiff opposed Defendants’ motion.
Law Enforcement Expert Witness
Roger Clark is a retired law enforcement professional with 27 years of experience in the Los Angeles County Sheriff’s Department (LASD). He was hired on December 1, 1965, and served until his retirement on March 31, 1993. Throughout his distinguished career, he held several key positions, including six years as a Deputy Sheriff, six years as a Sergeant, and 15 years as a Lieutenant. Roger retired with a California Peace Officer Standards and Training (POST) Advanced Certificate and is a graduate of the POST Command College, class #5, 1988.
Defendants argued that Clark’s first opinion should be excluded because it contains improper legal conclusions. The Court agreed. Clark’s first opinion stated that the LAPD was obligated to protect the protestors’ First Amendment rights and that per the video recordings, protestors had exercised these rights peacefully and lawfully. An expert cannot testify to a matter of law amounting to a legal conclusion. Clark’s opinion that the LAPD was obligated to protect protestors’ First Amendment rights and that protestors were peaceful and lawful constitute impermissible legal conclusions that invaded the province of the jury. Accordingly, the Court granted Defendants’ motion as to the exclusion of Opinion 1.
Opinion 2
Defendants argued that Clark’s second opinion, specifically that the LAPD deliberately inflicted significant indiscriminate force on the many persons in the crowd, including Zuniga, who was lawfully and innocently present, also improperly asserts a legal conclusion. They further argued that this opinion improperly opines on the mental state of the LAPD officers when Clark states that officers deliberately inflicted indiscriminate force on the crowd. Defendants offer no argument as to why the remaining statements in the second opinion should be excluded. The Court found that this portion of Clark’s second opinion both improperly states a legal conclusion that the LAPD used indiscriminate force and that Zuniga was lawfully present and improperly opined on the mental state and intent of the LAPD officers that officers deliberately inflicted indiscriminate force. Accordingly, the Court granted Defendants’ motion as to the exclusion of this portion of Opinion 2.
Opinion 3
Defendants argued that Clark’s third opinion that the LAPD’s use of impact weapons against the crowd was improper and in violation of well-known law enforcement tactics is irrelevant because any use of force against others besides Plaintiff is wholly irrelevant to this action. Defendants are incorrect. Plaintiff brings three Monell claims alleging that the LAPD maintains an unconstitutional policy, custom, or practice, including of using excessive force in crowd control situations including but not limited to engaging with peacefully protesting individuals. Clark’s opinion regarding the circumstances under which Defendants’ actions were taken and the LAPD’s use of weapons in a crowd control situation are relevant to Plaintiff’s claims. Accordingly, the Court denies Defendants’ motion as to Opinion 3 on this ground.
Opinion 4
Defendants argued that Clark’s fourth opinion should be precluded because there was no arrest in this case, and whether or not the other protestors were in violation of the law such that arrest of protestors was lawful is irrelevant to Plaintiff’s claims. As stated above, Defendants’ conduct towards the crowd of protestors is relevant to Plaintiff’s Monell claims. The LAPD’s policies, customs, and practices related to when persons are subject to use of police force and whether crowds are given the opportunity to disperse voluntarily before any arrests take place is relevant to these claims. Defendants further argue that this testimony is irrelevant, immaterial, and not helpful to the jury for the same reasons they contend Opinion 3 is similarly irrelevant. For the same reasons, the Court found that testimony regarding the LAPD’s procedures and policies are relevant and admissible. Accordingly, the Court denied Defendants’ motion as to Opinion 4.
Opinion 6
Defendants argued that Clark’s sixth opinion should be excluded because the opinion does not explain how the LAPD’s policy is insufficient or how the LAPD lacks an adequate policy regarding dispersal orders. Contrary to Defendants’ contentions, Clark did substantiate his opinion by explaining what the LAPD failed to communicate and what police training and policies equip officers to sufficiently announce crowd dispersal orders. Clark also stated that in reviewing documents indicating LAPD made a public announcement via Twitter, in his opinion this was inadequate notice because it was not announced verbally and assumed that persons present had access to electronic announcements. Clark is qualified to testify about police training standards and policies given his experience in this area. Accordingly, the Court denied Defendants’ motion as to Opinion 6.
Opinion 7
Defendants argued that Clark’s seventh opinion that LAPD engaged in a number of tactical errors that would or should have eliminated the need for the use of force and thus were a causative factor in the police’s use of force is speculative and unsubstantiated. Defendants argued that the opinion does not explain how the LAPD’s policy is insufficient, and that his conclusions as to what actions LAPD failed to take lack foundation and are misleading and conclusory therefore not helpful to the jury. Opinion 7 did not mention LAPD policies, rather, it states that LAPD made tactical errors and identifies the errors LAPD made during the events at issue. However, Clark failed to explain how he deduced that LAPD committed these errors or what materials inform his opinion. Therefore, the Court agreed that this opinion lacks foundation. Accordingly, the Court granted Defendants’ motion as to Opinion 7.
Opinion 8
Defendants argued that Clark’s eighth opinion that LAPD failed to use well-known law enforcement methods that they were, or should have been, trained on for addressing the small group of unlawful individuals within the much larger group of lawful protestors—is not sufficiently helpful to the jury to be admissible. Defendants argue that Clark does not explain how the LAPD’s policy is insufficient. Clark’s opinion identified methods of control that LAPD should have used and states that he reviewed the video recordings at the time of Zuniga injuries, that the methods LAPD used instead dispersed specific persons with intent to change the peaceful demonstration to a violent encounter into the larger crowd of lawful protestors. Thus, Clark identified the bases for his opinion. Accordingly, the Court denied Defendants’ motion as to Opinion 8.
Testimony regarding LAPD’s policies and procedures
Defendants further argue that Opinions 3, 4, 5, 6, 7, 8, and 9 are irrelevant, immaterial, not helpful to the jury because an alleged violation of Sheriff’s Department policy does not equate to a violation of the United States Constitution. Clark’s opinion regarding whether Defendants’ conduct comported with applicable procedures and policies on the day of the incident does not constitute a legal opinion or conclusion. Further, the testimony is relevant to the subject of Defendants’ conduct, including the use of force and crowd dispersal methods, during the events giving rise to this action. Accordingly, the Court denies Defendants’ motion to exclude these opinions on this ground.
Testimony regarding the mechanism of Plaintiff’s alleged injury and the alleged medical issues
Defendants argued that Clark’s testimony about issues such as the mechanism of injury and the source of injury should be excluded because Clark is not qualified as a medical doctor. Defendants argued that Clark was retained as a police expert and as such, his testimony should be limited only to areas involving police tactics. Plaintiff has not offered Clark as a ballistics expert or medical expert, and nothing in Clark’s report indicates that he is qualified to testify about what caused Plaintiff’s injury. Accordingly, the Court granted Defendants’ motion to exclude testimony from Clark regarding the mechanism or source of Plaintiff’s injury.
Held
The Court granted Defendant’s motion to exclude Clark’s first opinion that the LAPD was obligated to protect the protestors’ First Amendment rights and that the protestors were peaceful and lawful.
The Court granted Defendant’s motion to exclude Clark’s second opinion that the LAPD deliberately inflicted indiscriminate force on the crowd and that Mr. Zuniga was lawfully present.
The Court denied Defendant’s motion to exclude Clark’s third opinion regarding the LAPD’s improper use of impact weapons and violation of law enforcement tactics.
The Court denied Defendant’s motion to exclude Clark’s fourth opinion regarding the LAPD’s failure to provide an opportunity for protestors to disperse voluntarily.
The Court denied Defendant’s motion to exclude Clark’s sixth opinion regarding the inadequacy of the LAPD’s dispersal order policy.
The Court granted Defendant’s motion to exclude Clark’s seventh opinion that the LAPD’s tactical errors were a causative factor in the use of force.
The Court denied Defendant’s motion to exclude Clark’s eighth opinion regarding the LAPD’s failure to use appropriate law enforcement methods to address unlawful individuals within the crowd.
The Court denied Defendant’s motion to exclude Clark’s opinions regarding LAPD’s policies and procedures, finding that they were relevant to the conduct of the officers and the claims made by Plaintiff.
The Court denied Defendant’s motion to exclude testimony regarding the mechanism of Plaintiff’s alleged injury and the alleged medical issues.
Key Takeaways:
Defendant challenged Clark’s methodology and opinions in several areas. The Court excluded Clark’s opinion on the LAPD’s obligation to protect protestors’ First Amendment rights and its conduct during the protest because it constituted a legal conclusion. The Court also struck Clark’s opinion on the LAPD’s use of indiscriminate force because it improperly opined on the mental state and intent of the LAPD officers.
The Court also denied the motion to exclude Clark’s opinions on LAPD’s policies and procedures, as well as testimony regarding the mechanism of Plaintiff’s injury, finding them relevant to the case.
Clark’s opinion on LAPD’s tactical errors was excluded due to lack of foundation.
Please refer to the blog previously published about this case:
Plaintiff Utah Physicians for a Healthy Environment’s (“UPHE”) alleged a number of Clean Air Act (“CAA”) and Noise Control Act (“NCA”) violations against Defendants, who are motorcycle dealerships and their owner. At summary judgment, UPHE proffered the expert testimony of Dr. Michael St. Denis. In relevant part, St. Denis opined that a “test motorcycle” purchased by UPHE for this litigation was not in compliance with the CAA’s emissions standards. However, during the air-emissions testing, background levels of hydrocarbons exceeded the federal limit authorized for such testing. Both St. Denis and the testing center admitted that the testing would have been invalid for EPA purposes. However, the testing center stated in an email that the testing data could be used for “development/comparison purposes,” though it did not explain why. Defendants moved to exclude St. Denis’ opinion related to the test motorcycle under Rule 702.
The Court granted this portion of Defendants’ motion to exclude. In particular, the Court found that UPHE had failed to show that St. Denis’s opinion reflected a reliable application of reliable principles and methods under Federal Rule of Evidence 702(d). The Court reasoned that “[b]oth St. Denis and [the testing center] admitted that the test results were invalid for EPA purposes given that the background levels of hydrocarbons exceeded 5 parts per million.” The Court then observed that “UPHE has not attempted to explain how high background levels of hydrocarbons would affect a test result, nor has it explained why the testing would be valid for comparison purposes.”
UPHE filed a motion for clarification regarding the Court’s order granting Defendants Harley-Davidson of Salt Lake City, LLC, Northern Utah Power Sports, LLC, and Joseph Timmons, Jr.’s (collectively “Defendants”) motion to exclude a portion of an expert opinion offered by Dr. Michael St. Denis.
Motion for Clarification
UPHE argued that St. Denis explained both issues in his expert report. After noting that the initial test result had high background levels of hydrocarbons, in paragraph 33 of his report, St. Denis wrote:
Elevated levels of [hydrocarbons] in the test cell have two results: 1) the concentration of [hydrocarbons] in the exhaust measured by exhaust analyzers and attributed to combustion is under-reported, and 2) the high level of [hydrocarbons] in the background air is subtracted from the level of [hydrocarbons] measured in the exhaust and artificially lowers the calculated level of emission of [hydrocarbons] from the vehicle. For these reasons, the concentration of [hydrocarbons] in the exhaust of the Test Motorcycle was under-reported. In other words, if the Test Motorcycle did not have an exhaust leak its measured [hydrocarbon] emissions would be greater.
Next, in paragraph 34, he opined that “[e]ven with the exhaust leak, the emissions of [hydrocarbons plus nitrogen oxides] in the first test were 1.49 g/km, far exceeding the vehicle’s certified level of 0.5 g/km, and the federal standard of 0.8 g/km.” UPHE pointed to the former as evidence that St. Denis did explain how high background levels of hydrocarbons would affect a test result, and to the latter as evidence that St. Denis explained why the tests were valid for comparison purposes.
Although Defendants attached St. Denis’ expert report to their Motion to Exclude, UPHE did not cite the report in its argument, let alone these particular paragraphs. Nor did UPHE respond to several of Defendants’ arguments on why St. Denis’ air emissions opinions are unreliable.
Environmental Science Expert Witness
Michael St. Denis holds a Doctorate in Environmental Science and Engineering from UCLA, a Master of Science degree in Physical Chemistry, and a Bachelor of Science degree in Chemistry. His doctoral studies were focused on reduction of air pollution and air quality impacts of various pollutants from differing sources of pollution. He has taken classes in air pollution control, air pollution dispersion modeling, human health impacts of pollutants and risk assessment focused on environmental pollutants. He performed air pollution modeling and worked on air quality impact and improvement plans.
Although it is titled a motion for clarification, the Court noted that it more closely resembles a motion for reconsideration, particularly given that UPHE states in its Reply (for the first time) that it relies on Federal Rule of Civil Procedure 54(b).
Under Federal Rule of Civil Procedure 54(b), an interlocutory decision can be “revised at any time before the entry of a final judgment adjudicating all the claims.” The Court “is not bound by the strict standards for altering or amending a judgment under Federal Rules of Civil Procedure 59(e) and 60(b),” but the basic assessment for reconsideration remains the same. The Court may grant reconsideration based on the availability of new evidence, an intervening change in the controlling law, or the need to correct clear error or prevent manifest injustice. In other words, it is only appropriate in “extraordinary circumstances” when “the Court has misapprehended the facts, a party’s position, or the controlling law.”
Analysis
UPHE does not state which ground for reconsideration could apply. Nonetheless, it is clear that there is no new evidence or change in controlling law, nor was there clear error. Therefore, the only potential ground for reconsideration would be to prevent manifest injustice.
The Court first notes that a motion for reconsideration is improper when used to “revisit issues already addressed or advance arguments that could have been raised in prior briefing.” As such, the Court could deny the motion for failing to cite the pertinent paragraphs of St. Denis’s report or otherwise argue these issues in its briefing. After all, “[p]arties should make all arguments accessible to the Court, ‘rather than ask [the Court] to play archaeologist with the record.’” Yet, it is also true that St. Denis’s report was in the record, was relatively short—spanning just 16 pages—and at least briefly discussed the subject at issue. Moreover, Defendants attached the report as an exhibit to their motion to exclude, and Defendants cannot argue they were unaware of the report’s assertions.
Accordingly, if it were a simple matter of one missing citation, the Court might be inclined to reconsider its holding. But the deficiency here is more than that. UPHE bears the burden of demonstrating that its proffered expert’s opinions meet the Rule 702 standard. Here, UPHE failed to adequately show that these particular opinions reflect a reliable application of reliable principles and methods.
UPHE bears the burden to show it is more likely than not that St. Denis’s opinions reflect a reliable application of reliable principles and methods
Assuming without deciding that (i) the method of subtracting background hydrocarbons from the hydrocarbons measured in the exhaust is reliable generally and (ii) a test with background levels of hydrocarbons exceeding 5 parts per million is not necessarily invalid for comparison purposes, these statements are still not fully responsive to Defendants’ reliability arguments in their Motion to Exclude. For example, Defendants point out that St. Denis initially calculated emissions based on four tests (three of which were included in the average), then updated the chart to reflect eight tests, excluded some of these tests based on incorrect data, and revised total emissions downwards by more than ten percent. Of these eight attempted emissions tests, the average background hydrocarbon concentration varied widely, ranging from 5.46 ppm to 17.89 ppm.
Further, Defendants argued that the testing was invalid because SGS Environmental Testing Center in Columbus, Indiana (“SGS”) collected data from the motorcycle after it had been driven for about 100 miles, instead of after its break-in period of 4,000 miles used for initial compliance emissions testing. Defendants also argued that the comparison is not reliable because the motorcycle was not in the same condition as it was when it left Defendants’ custody. Specifically, SGS partially disassembled the motorcycle to weld the exhaust system from the inside to fix the exhaust leak and clamped aluminum foil over the muffler and exhaust pipe. SGS itself stated that it “remain[ed] concerned about the modifications and the mileage on the vehicle for what [St. Denis] want[ed] to do with the results.”
Motions for Reconsideration Are Generally Not Proper to “Advance Arguments that could have been raised in Prior Briefing”
St. Denis does not address these concerns in his report, and UPHE did not respond to these arguments in its briefing. UPHE bears the burden to show it is more likely than not that St. Denis’s opinions reflect a reliable application of reliable principles and methods. By failing to respond to these arguments, UPHE did not meet that burden. As such, the Court cannot conclude that St. Denis’s excluded opinions are reliable even given the brief discussion in paragraphs 33 and 34 of his report. And as the Court noted earlier, motions for reconsideration are generally not proper to “advance arguments that could have been raised in prior briefing.” In short, the excluded opinions might be reliable, but UPHE, the proponent of this evidence, failed to show that they are.
Held
The Court denied UPHE’s motion for clarification.
Key Takeaway:
UPHE bears the burden to show it is more likely than not that St. Denis’s opinions reflect a reliable application of reliable principles and methods. By failing to respond to Defendants’ reliability arguments in their motion to exclude, UPHE did not meet that burden. Basically, motions for reconsideration are generally not proper to “advance arguments that could have been raised in prior briefing.” In short, the excluded opinions might be reliable, but UPHE, the proponent of this evidence, failed to show that they are.
Case Details:
Case Caption:
Utah Physicians For A Healthy Environment V. Harley-Davidson Of Salt Lake City Et Al
This case involves claims raised by Plaintiffs Kyle and Annaleah Justice against Defendants Bestway USA and Rural King Holdings, Inc. 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 raised five claims against Bestway USA: Count I – Strict Liability Design Defect; Count II – Strict Liability Failure to Warn; Count III – Negligence (under theories of both negligent design and negligent failure to warn); Count IV – Breach of Express Warranty; and Count V – Breach of Implied Warranty.
Kyle and Annaleah Justice filed a motion to exclude Fred Semke, Defendant Bestway (USA), Inc.’s retained engineering expert.
Structural Engineering Expert Witness
Fred Semke is President of Semke Forensic and was hired by Bestway USA to “render professional opinions regarding the pool.” Semke has a bachelor’s degree in mechanical engineering and a master’s degree in engineering mechanics. He is a Registered Professional Engineer in Missouri, Illinois, Arkansas, Kentucky, Kansas, Oklahoma, Iowa, Alabama, and Idaho. He also has fourteen (14) years of experience as a structural engineer.
Semke’s report stated that he plans to testify to the following:
During the Warren County Sheriff’s evaluation of the subject pool, the top of the support band was measured at 14.5 inches from the ground . . . with the overall height of the pool being 51.5 inches . . . . As such, the distance between the top of the pool and the top of the support band was 37 inches.
Kyle Justice testified [E.M.J.] “…couldn’t climb up into that tree house… because the ladder rungs were too tall.” The ladder rungs were measured by Semke and found to be 25 inches from the base of the ladder . . . . Furthermore, Mary Flake, E.M.J’s grandmother, relayed to Semke during the inspection of the premises that [E.M.J.] was unable to climb onto the family’s 34-inch high trampoline . . . without assistance.
Considering the aforementioned statements made by Justice and Flake, in conjunction with the measured heights, it was inconsistent with [E.M.J.] using the pool support band as a stepping location to pull herself into the pool.
The design of the subject pool was not unique; rather, it was consistent with other polyvinyl chloride pools. The subject pool, and similar pools, require the support band near the bottom of the pool to resist the hydrostatic pressure at the base of the wall. In addition, the band also serves as a support for the vertical posts of the pool frame.
Based on the indicated analysis, the pool did not contain design or manufacturing deficiencies.
Plaintiffs’ Position
Plaintiffs argued that Semke’s testimony should be excluded because (1) he is not qualified to provide opinions regarding pool engineering; (2) Opinions 1, 2, and 3 are mere statements of fact or simple inference that do not require expert testimony; (3) Opinion 4 is not based on sufficient facts or data; and (4) Opinion 5 is a legal opinion. They separately argued that several opinions Semke testified to during his deposition were not disclosed in his expert report and should therefore be excluded. Plaintiffs challenged Semke’s qualifications to testify regarding pool design. Specifically, Plaintiffs argued that Semke lacked experience or training specifically related to biomechanical engineering, human factors analysis, and above-ground pool design.
Analysis
Semke is Qualified to Express Opinions Regarding the Pool’s Design
Semke, an experienced engineer with degrees in mechanical engineering and engineering mechanics, is qualified to testify in the field of engineering. This includes testimony regarding the engineering implications of the pool’s design and the function of the pool’s nylon support strap. The Court held that Semke is not required to have further specialization in aquatic engineering to offer these opinions; it is sufficient that he has expertise in engineering and structural design.
Despite not having specific experience in evaluating pool designs or in designing pools, Semke can offer his engineering knowledge and experience to help the jury understand the engineering concepts underlying the pool’s design.
Opinions 1, 2, and 3
Plaintiffs argued that Semke’s Opinions 1, 2, and 3 should be excluded because they are statements of fact and not expert opinions. Plaintiffs contended that Semke’s statements about the height of the pool wall, the nylon strap, and the distance between them are facts that the jury does not need expert testimony to understand.
The Court held that the simple math and the previous testimony of Kyle Justice and Mary Flake are mere statements of fact that can be established without reliance on opinion evidence. To be clear, Semke will be permitted to testify regarding the measurements his firm took at the Flake residence and to explain the process he used to arrive at some of his conclusions, but the jury does not need his assistance to determine the difference between 51.5” and 14.5”.
Similarly, no expertise is necessary for the jury to understand the lay testimony of Kyle Justice and Mary Flake. The jury itself can make its own inferences regarding whether E.M.J. was able to scale the pool wall based on testimony regarding its height and her known climbing abilities. Semke’s opinion testimony that the theory that E.M.J. accessed the pool by standing on the nylon support strap is inconsistent with her family’s testimony about her climbing abilities is simply an inference that the jury can arrive it through its own knowledge and experience.
Opinion 4
Plaintiffs averred that Opinion 4—specifically that the pool’s design was not unique—is not based on sufficient facts or data because Semke testified that he has not evaluated any other pool designs. Plaintiffs argued that Semke’s lack of experience with pool engineering prevents him from forming a conclusion about the pool’s design or how it compares to the design of other pools.
The Court held that Semke will be permitted to testify regarding the purpose of the pool’s nylon support strap in its design. Semke testified at deposition that the pool’s nylon support strap is a “structural item” used to ensure the structural integrity of the pool’s walls, which are pushed outward by the weight of the water in the pool when the pool is filled. He will also be permitted to testify regarding the effect the pressure on the structure would have on the potential gap between the nylon support strap and the pool’s exterior wall, and therefore its utility as a foothold. The Court noted that Semke arrived at these conclusions using his engineering expertise.
However, Semke will be precluded from testifying that the design of the pool was “not unique” and “was consistent with other polyvinyl chloride pools.” By his own admission, Semke was not asked to evaluate any other pool designs and he did not do so.
Opinion 5
Plaintiffs represented that Opinion 5 is merely a legal conclusion and therefore should be excluded. Though Plaintiffs recognized that the opinion does not specifically state that the pool design was not “defective,” they argued that the opinion that the pool “did not contain design or manufacturing deficiencies” is a thinly veiled attempt to provide a legal conclusion regarding the pool’s alleged design defect.
The Court held that Semke is qualified to testify regarding the pool’s design, and his testimony here regarding the lack of deficiencies in the pool’s design does not present a legal conclusion. Semke does not propose to apply the law to the facts of this case in arriving at his conclusion. Plaintiffs themselves admit as much.
Rather, his opinion that the pool contains no design deficiencies is an engineering opinion stemming from his analysis of the pool’s design. Despite what Plaintiffs claim, this opinion does not require Semke to have evaluated the designs of other pools because this opinion pertains only to the pool at issue in this case, and Plaintiffs can certainly cross-examine him in this regard. He is not attempting to tell the jury what legal conclusion to reach but is instead stating that there are no specific engineering issues inherent in the pool’s design. This is permissible expert testimony that will help the jury to determine whether the pool had a design defect, and the Court will deny Plaintiffs’ attempt to exclude this opinion.
Opinions Not Disclosed in Semke’s Expert Report
Plaintiffs also opposed the admission of several opinions Semke only expressed during his deposition testimony and were not included in his expert report. These include Semke’s opinions that: (1) E.M.J. was not adequately supervised at the time of her drowning; (2) E.M.J. could have used a bucket to enter the pool; (3) E.M.J. could have used the pool ladder to enter the pool; (4) E.M.J. could have climbed the pool’s support poles to enter the pool. Plaintiffs argued that because these opinions were only raised at deposition and were not shared in Semke’s expert report, as required by Federal Rule of Civil Procedure 26, they are inadmissible.
The Court noted that Bestway USA has made no attempt to supplement Semke’s report to include these opinions as required by Fed. R. Civ. P. 26(a)(2)(E) and 26(e)(2), and therefore the opinions have not been disclosed as required by Rule 26(a)(2)(B)(i).
Inasmuch as Semke’s report contains no information regarding these opinions, Plaintiffs and the Court have been unable to fully assess how Semke arrived at those opinions and on what data he bases such opinions. Semke’s report includes no analysis of other ways that E.M.J. could have entered the pool, and he provides no reasonable engineering basis for any opinions regarding alternative methods. Because these opinions were not properly disclosed and because Bestway USA has not shown by a preponderance of the evidence that Semke arrived at them through the reliable application of an engineering methodology to the facts and data in this case, the Court excluded these opinions to the extent that Bestway USA attempts to elicit them on direct examination of Semke.
Held
The Court granted in part and denied in part the Plaintiff’s motion to exclude Fred Semke.
Key Takeaways:
Despite not having specific experience in evaluating pool designs or in designing pools, Semke was allowed to offer his engineering knowledge and experience to help the jury understand the engineering concepts underlying the pool’s design.
Semke does not propose to apply the law to the facts of this case in arriving at his conclusion. Plaintiffs themselves admit as much. Rather, his opinion that the pool contains no design deficiencies is an engineering opinion stemming from his analysis of the pool’s design. He is not attempting to tell the jury what legal conclusion to reach but is instead stating that there are no specific engineering issues inherent in the pool’s design.
Please refer to the blog previously published about this case:
The present case involved a medical malpractice claim filed by Plaintiffs Tyler Grenier and Jenna Grenier, individually, and as the next friend of minor J.A.G., against the Defendant United States of America (“Defendant”). The Plaintiffs alleged medical negligence at Tripler Army Medical Center (“Tripler”) concerning prenatal care and labor provided to Plaintiff Jenna Grenier (“Jenna”) and the delivery of J.A.G. The claims included severe physical injuries sustained by Jenna and J.A.G., negligent infliction of emotional distress on Tyler and Jenna, loss of filial consortium, and Tyler’s loss of spousal consortium.
In the current motion, the Defendant sought to strike the expert testimony of Ofer Levy, a pediatrics expert witness presented by the Plaintiffs. Defendant argued that Levy’s expert report was filed after the expert report deadline, as a rebuttal report, and that he had not been previously disclosed as an expert.
The Plaintiffs filed their opposition on August 13, 2024, asserting that Levy’s report was timely because the rebuttal disclosure deadline had been extended to June 10, 2024, the same day his report was disclosed.
Defendant replied on August 20, 2024, contending that Ofer Levy’s expert report is not a rebuttal report because it did not respond to any new information and it is an entirely new expert witness with new opinions that should have been disclosed by the expert witness disclosure deadline of March 11, 2024.
Pediatrics Expert Witness
Ofer Levy is principal investigator, staff physician and the Director of the Precision Vaccines Program at Boston Children’s Hospital, Professor of Pediatrics at Harvard Medical School, and Associate Member of the Broad Institute of MIT and Harvard.
After graduating from the Bronx High School of Science and then Yale College (B.S., Molecular Biophysics & Biochemistry), Levy received his MD and PhD degrees from New York University.
The parties agreed that Ofer Levy’s report was filed within the deadline for rebuttal expert reports. However, they disagreed on whether the report qualified as a rebuttal or an initial expert report. The Court determined that the report was an initial expert report, not a proper rebuttal.
Ofer Levy’s opinion stated that the forceps-assisted vaginal delivery caused the minor Plaintiff’s injuries and that a cesarean section should have been performed instead. He further opined that the perinatal injuries would have been avoided with a cesarean section. This opinion mirrored that of Plaintiffs’ obstetrics and gynecology expert witness, Adam V. Levy, who had similarly concluded that a cesarean delivery would have prevented the injuries.
The Court found that Ofer Levy’s report went beyond providing a rebuttal. Instead, it sought to reinforce the opinions already expressed by Adam V. Levy. This was impermissible, as it did not respond to new evidence but rather bolstered the original expert report. The Court referenced Parenti v. Cnty. of Monterey, where a purported rebuttal was excluded because it merely reinforced the original expert’s opinions.
Violation of Federal Rule of Civil Procedure 37(c)(1)
Under Federal Rule of Civil Procedure 37(c)(1), if a party fails to disclose expert testimony as required, the Court may exclude the testimony unless the failure is substantially justified or harmless. The Court ruled that Ofer Levy’s failure to disclose his expert status and report by the deadline was neither justified nor harmless. Consequently, the Court determined that the appropriate sanction was to strike Levy’s expert testimony and report.
Factors for Exclusion Sanction
To decide whether exclusion was appropriate, the Court considered several factors:
The public’s interest in the swift resolution of litigation.
The Court’s need to manage its docket efficiently.
The risk of prejudice to the Defendant.
The public policy favoring the resolution of cases on their merits.
The availability of less severe sanctions.
The Court found that the first three factors supported exclusion. The untimely disclosure would cause delays, which weighed against the Plaintiffs. The fourth factor was neutral, as striking Levy’s report would not dispose of the case. Finally, the fifth factor supported exclusion because the Plaintiffs could still proceed with their claims and trial without Levy’s testimony. Therefore, the Court decided to strike Levy’s expert report and testimony.
Held:
The Court, in light of the aforementioned discussion, granted Defendant’s motion to strike Plaintiff’s pediatrics expert witness Ofer Levy’s expert report and testimony.
Key Takeaway:
The Court struck the expert testimony of Ofer Levy because his report, filed after the expert deadline, was deemed an initial expert report rather than a rebuttal. The Court found that Levy’s testimony merely reinforced the opinions of another expert, Adam V. Levy, instead of responding to new evidence. Since Levy’s untimely disclosure was neither substantially justified nor harmless, the Court ruled that his report and testimony should be excluded as a sanction under Federal Rule of Civil Procedure 37(c)(1).
Please refer to the blogs previously published about this case:
On May 20, 2020, Plaintiffs filed the complaint initiating this action against Defendants for allegedly conspiring to acquire Plaintiffs’ personal and private records from the California Department of Motor Vehicles for the purpose of sending them letters to solicit business in the form of legal representation for litigation against sellers of vehicles they had purchased.
Defendants filed a motion to exclude the testimony of Plaintiffs’ expert witness, Larry Londre at trial based on untimely disclosure and lack of qualifications.
Marketing Expert Witness
Larry Londre is a marketing executive and analyst with expertise in creating, applying and delivering marketing, advertising, media, business development, sales, brand integrity, collateral programs, and expert witnessing.
Since 2002, he has served as an expert witness and has been designated as an expert witness involving Marketing, Advertising, Trademark, Patent, Promotion, Breach of Contract, Unfair Competition, Custom and Practice, Lanham and Robinson-Patman Act Violations, and others.
According to Plaintiffs, Defendants were first aware in March 2023 that Plaintiffs designated Londre as their expert when they concurrently filed his declaration in support of their opposition to Defendants’ first motion for summary judgment. Defendants were also made aware of Londre following the lifting of the stay of this case when Plaintiffs formally listed Londre as their expert witness in their supplemental disclosures made pursuant to Federal Rule of Civil Procedure 26 on February 26, 2024. Defendants do not dispute this timeline or the fact that they were aware of Plaintiffs’ designation of Londre, but they assert that these dates are not relevant because Londre’s expert report was not provided until March 14, 2024.
Plaintiffs learned for the first time that Defendants intended to move for exclusion of Londre’s testimony at trial because they believe Plaintiffs did not timely disclose Londre as their expert witness. Consequently, on that same day, Plaintiffs filed the pending motion for relief from the expert witness disclosure deadline, if necessary, to permit Londre to testify at trial notwithstanding Defendants’ assertion that he was not timely disclosed.
Plaintiffs asserted that their inadvertent failure to timely disclose Londre was excusable neglect under these circumstances given the confusion caused by the Court’s orders staying this case, lifting the stay, and modifying the schedule as to certain dates while remaining silent as to other dates, including the expert disclosures deadline. Plaintiffs also asserted that even under Defendants’ interpretation of the court’s orders, Plaintiffs’ disclosure on March 14, 2024 was only 66 days past the January 8, 2024 disclosure deadline and thus its late disclosure was harmless to Defendants, particularly because Defendants expressed no interest in deposing Londre or need for more time to prepare for trial in light of the late disclosure.
Analysis
Rule 26
The Court finds under the circumstances of this case that Plaintiffs’ disclosure of Londre two months late was harmless to Defendants. Federal Rule of Civil Procedure 37 provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”
Notably, in their opposition to Plaintiffs’ motion, Defendants did not identify any prejudice or harm that they contend they would face at trial as a result of receiving Londre’s expert report in March 2024 instead of January 2024. Defendants instead suggested that they were harmed in the context of their summary judgment motion, but that motion was denied in August 2024. Curiously, while that motion was under submission, Defendants did not file any motions for relief due to any such perceived harm, and even after the motion was denied, Defendants did not file any motions for reconsideration either. As noted above, Defendants also did not seek to take the deposition of Londre in the several months that passed after the March 14, 2024 disclosure. The Court is therefore not persuaded by Defendants conclusory assertion that Plaintiffs’ late disclosure of their expert witness was not harmless.
Rule 702
To the extent Defendants’ pending motion to exclude Londre’s testimony at trial is based on untimely disclosure, that motion will be denied by the Court. However, to the extent Defendants’ motion is based on the purported inadmissibility of Londre’s testimony pursuant to Federal Rule of Civil Procedure 702, that motion will also be denied by the Court, albeit without prejudice to Defendants filing an appropriate motion in limine to exclude Londre’s testimony on that basis—indeed, an issue Defendants should be better positioned to address after deposing Londre and probing his qualifications.
Held
The Court will grant Plaintiffs’ motion and will not preclude Londre from testifying at trial on the basis of untimely disclosure. As for next steps, the Court is not persuaded that Defendants have any actual interest in deposing Londre. Nevertheless, out of an abundance of caution, the Court will reopen expert discovery for a period of 60 days (equal to the approximate amount of time that Plaintiffs’ disclosures were made past the disclosure deadline) for the limited purpose of permitting Defendants to depose Londre.
Key Takeaway:
Defendants did not identify any prejudice or harm that they contend they would face at trial as a result of receiving Londre’s expert report in March 2024 instead of January 2024. They instead suggested that they were harmed in the context of their summary judgment motion, but that motion was denied in August 2024. Defendants also did not seek to take the deposition of Londre in the several months that passed after the March 14, 2024 disclosure.
Plaintiffs Iola Favell, Sue Zarnowski, Mariah Cummings, and Ahmad Murtada (“Plaintiffs”) alleged that Defendant University of Southern California (“USC”) engaged in a scheme to artificially inflate the U.S. News & World Report (“US News”) ranking of USC’s Rossier School of Education (“USC Rossier”) by submitting incomplete data to US News — and then marketed that fraudulent ranking to the public.
An internal investigation conducted by USC’s outside counsel, Jones Day, determined that USC had submitted student selectivity data only for USC Rossier’s highly selective, in-person PhD program — but not from its less-competitive EdD program. The less-competitive EdD program was offered online after 2015 in collaboration with 2U, a company that offers technology platforms for online programs and provides advertising and recruiting for those online programs.
Plaintiffs alleged that USC, knowing the importance of the rankings on prospective students’ school choice, heavily marketed USC Rossier’s rapidly rising ranking to the public to boost enrollment in the online programs. USC orchestrated this scheme, Plaintiffs alleged, through its submission of false/incomplete data and then promoted the resulting ranking knowing that it was misleading.
Dr. John Chandler is a professor of marketing at the University of Montana who holds a master’s degree in mathematics and a doctorate in statistics and has worked in analytics and data science for 25 years with a focus on digital marketing.
Sara Neher is a partner at Kennedy & Company Higher Education Strategies, a higher education consulting firm. She has an MBA and has worked in higher education for more than twenty years, including academic leadership positions at two business schools. Neher has experience consulting higher education clients about their US News rankings, including constructing models like the one she submits in this case, and has also been part of the submission of data to US News for multiple schools.
J. Michael Dennis is the Senior Vice President of the National Opinion Research Center, which is a survey research organization affiliated with the University of Chicago. Dennis has worked in survey research for more than 20 years, has authored more than 60 articles, and has been found qualified by numerous courts to provide expert opinions on consumer surveys.
John Chandler submits a 95-page report explaining digital marketing practices in the context of student recruitment for graduate programs, the stages of a prospective student’s journey through the “marketing funnel,” what marketing strategies are typically deployed for student recruitment, and how USC Rossier applied these principles in its marketing strategy.
The first portion of Chandler’s report expresses extensive opinions on marketing practices, the enrollment journey, and the comprehensive marketing strategy that USC and 2U deployed to market USC Rossier. The second part of Chandler’s report discusses the exposure — i.e., the reach — of USC Rossier’s marketing materials containing the allegedly fraudulent ranking information. In the end, Chandler’s bottom line conclusion is: “Given the extensive and varied exposure methods outlined above, I can state with a reasonable degree of scientific certainty that all or nearly all students at USC Rossier in the MAT and OCL programs during the period of ranking manipulations were exposed to the fraudulent rankings. The pervasiveness of these rankings across multiple touchpoints ensured their near-universal reach.”
Reliability
USC did not challenge Chandler’s opinions on general marketing principles or the specifics of the extensive marketing strategy 2U and USC implemented with regard to USC Rossier. Instead, USC challenged the exposure/reach aspects of Chandler’s opinions. The crux of USC’s argument is that Chandler has no quantitative basis to opine that all or nearly all prospective students were exposed to fraudulent rankings through emails and/or other means.
USC further contended that Chandler did not have reliable site traffic data to substantiate an opinion that the vast majority of students visited the USC Rossier website and were exposed to a ranking representation.
The Court first observed that Chandler’s report extensively details the marketing strategy that USC and 2U deployed on behalf of USC Rossier, including specific opinions on how the marketing strategy was designed to move interested students through the marketing funnel from “awareness” to “enrollment.”
To arrive at his exposure conclusions, Chandler relied heavily on testimony from 2U’s 30(b)(6) representative, Dr. Joana Gerber. The Court has reviewed Gerber’s deposition transcript, as well the arguments both USC and Plaintiffs make about her testimony.
The Court agreed with Plaintiffs that the thrust of Gerber’s testimony and Chandler’s report is that 2U orchestrated an extensive marketing strategy designed to move all prospective students through the marketing funnel. It also agreed with Plaintiffs that Chandler’s opinions are the result of extensive review of record evidence, including Gerber’s testimony, and that USC’s placement of rankings on the USC Rossier website and in social media further supports his exposure conclusions.
Sara Neher
Sara Neher submitted a 13-page expert report explaining a model she constructed to project the US News ranking USC Rossier would have received if USC had submitted accurate data. US News publishes its methodology each year, including the relative weights of the various factors that underlay its rankings, with each school receiving an assigned rank based on its overall score on a 100-point scale.
Neher’s model standardizes the data in each category
Neher begins her reconstructed model with the data published by US News. First, Neher’s model standardizes the data in each category using z-scores, which are multiplied by the relative weights published by US News and added together to create a total for each school. Then, the total is indexed such that the top score always equals 100. The critical component — and the factor USC most vigorously challenges — is what Neher does to account for the information US News does not release. Neher acknowledged that she does not have access to information US News does not make publicly available, including the number of faculty with awards, the number of doctoral students who submitted a GRE score, the overall score for the lowest ranked 25% of schools, and the process for applying a logarithmic transformation to the student-faculty ratio.
Neher replaced the data USC Rossier actually submitted to US News with accurate data USC should have submitted
To account for this unavailable information, Neher calculated what she labels a “hidden-data constant” by comparing how much her model’s raw score (using the publicly available data) deviates from the school’s actual US News ranking. This, Neher reports, “captures the difference between what our model is able to calculate as the indexed score and what US News reports as the final score.” Then Neher replaced the data USC Rossier actually submitted to US News with accurate data USC should have submitted, based on an internal report from USC’s Director of Institutional Research who was instructed to investigate the matter. After generating a new overall score for USC Rossier using this information, Neher applies the hidden-data constant to account for the information she cannot recreate.
The result led to a dramatic decrease in USC Rossier’s ranking. Under Neher’s model, USC Rossier’s rank would have dropped from 15 to 48 in 2018; from 10 to 34 in 2019; from 12 to 61 in 2020; from 11 to 63 in 2021; and from 11 to 64 in 2022.
USC argued that Neher’s opinions regarding USC Rossier’s adjusted US News rankings must be excluded because they are the result of an unreliable methodology. Specifically, USC argued that the “hidden data constant” Neher calculates varies both school-to-school and year-to-year, resulting in a score that is sometimes close to US News’ ranking, but other times is dramatically far off. In other words, USC argued that there is no consistency to the hidden-data constant, so the methodology cannot be reliably used to predict adjusted scores based on different data input.
Qualifications
USC challenged Neher’s qualifications on the grounds that she does not have the training, experience, or specialized knowledge to qualify as an expert in statistical modeling. In addition, USC argued that she has never worked for or been trained by US News and has never before tried to replicate US News’s model; instead, she knows only what US News publicly discloses.
As USC sees it, absent insider knowledge about US News’s rankings, it is not possible to reliably replicate US News’ ranking at all — and any attempt to do so is “a pure guessing game.”
The Court declined USC’s invitation to announce a rule — especially in a discretionary evidentiary ruling — that the only way to reliably prove rankings fraud is to use (or, more likely, to misappropriate) insider knowledge of US News’s proprietary methodology. The Court is not convinced that any attempt to do so is necessarily a “pure guessing game” that categorially forecloses Neher’s proffered reconstructed rankings. This is especially true considering that Plaintiffs have identified other consulting firms and academic research that attempt to reconstruct US News rankings.
The Court held that Neher’s extensive experience working in higher education consulting constitutes a sufficient foundation to qualify her to offer her proffered opinions.
Reliability
The Court would begin by observing that neither Plaintiffs nor Neher purport to represent the proffered adjusted rankings model as a perfectly exact replication of the US News rankings. In addition, though USC did not challenge in its moving papers the result of Neher’s model — i.e., that USC Rossier’s ranking would experience a large decline — it indicated at the hearing that it does challenge Neher’s ultimate conclusion that rankings would have dropped.
For present purposes, the crux of USC’s challenge is how close Neher got in making a rankings prediction.
The Court also disagrees with USC that Neher’s methodology cannot be tested. Neher has described the methodology she deploys in her model in transparent and understandable terms, meaning USC and its experts can verify it, test it against different data, and/or critique the application of the hidden data constant.
USC does, however, point to numerous examples where the hidden data constant does not come close to replicating the school’s actual US News ranking, and that it also varied year-to-year. The question becomes, then, whether the inconsistencies with the outcome of Neher’s model compared to US News’s actual rankings are the result of unreliable methodology or instead go to the weight of the evidence. The Court notes that USC does not challenge Neher’s replication of the published aspects of US News’s methodology, only the methodological step of capturing the “hidden data constant.”
J. Michael Dennis
J. Michael Dennis submitted a 55-page report proposing two yet-to-be-conducted choice-based conjoint surveys that would estimate what USC Rossier’s tuition prices would have been but for USC’s alleged conduct. Dennis defines a choice-based conjoint survey as a “standard marketing research technique for quantifying consumer preferences for products and for the component features that make up a product. Conjoint analysis can be used to break down the value of a conceptual feature ( i.e., claims about the USC Rossier’s credentials) into its component parts (i.e., the claim that USC Rossier is a ‘top ranked’ program, or more specifically, that it was ranked between 10-15 by U.S. News & World Report in the 2017-2022 time period). Conjoint surveys take advantage of the fact that consumers are profoundly familiar with the task of shopping — comparing products, evaluating them, and making choices. Consumers are accustomed to making choices in their real-world shopping experiences.”
To calculate damages, Dennis explains:
“I define the but-for world as a world where the actual U.S. News rankings were in fact between 34 and 64 (corresponding to my fourth level of “30 to 59” for the “Rankings” attribute). In contrast, class members paid program costs when the advertised rankings were between 10 and 15 (i.e., corresponding to my second level of “10 to 19” for the “Rankings” attribute). If Plaintiffs’ allegations have merit, the market-clearing prices in the but-for worlds will be lower than the prices paid by class members.”
Reliability
USC first argued that Dennis’ opinions must be excluded because they rely on Neher’s inadmissible opinions. However, the Court would not exclude Neher’s opinions, thereby rendering this argument moot.
USC next argued that Dennis’ opinions must be excluded under Fed. R. Evid. 702(b) because they are based on insufficient facts or data.
USC argued that higher education does not operate in normal supply-and-demand conditions because of the impact of other economic incentives, including scholarships, fellowships, and grants. In addition, USC argued that universities address scarcity through selective admissions, not tuition price. USC’s argument, then, is that Dennis has no evidence justifying his assumption that the market value of an education from USC Rossier is anything other than what USC Rossier decides to charge.
Relatedly, USC also argued that Dennis has no evidence supporting his assumption that USC Rossier’s tuition responded to US News rankings. USC relies on a report from its expert witness to argue that there is no empirical analysis showing that tuition for EdD programs is affected by changes in school rankings.
This Court agrees that the real-world and market realities evidence upon which USC relies speak to the weight of Dennis’ analysis — which certainly could persuade a jury — but are not supportable reasons for excluding Dennis’ expert report and testimony.
Finally, the fact that Dennis’ survey has not been fully developed or implemented does not warrant exclusion at this juncture. There is no basis to exclude Dennis’ proposed conjoint survey. However, the Court will not preclude USC from bringing a later Daubert challenge to Dennis’ final report and testimony after his conjoint survey has been fully executed.
Held
The Court denied USC’s Daubert motions to exclude the expert report and testimony of Dr. John Chandler, Sara Neher, and Dr J. Michael Dennis.
Key Takeaways:
While Chandler is not able to offer at this juncture a quantifiable number of students exposed to fraudulent rankings — an issue that might make the specific contours of his testimony subject to a later motion in limine — the Court does not find too great of an analytical gap between the record evidence and his exposure opinions. The core of USC’s argument goes to the weight of Chandler’s opinion and the identified shakiness of Gerber’s testimony, but “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”
The fact remains that Plaintiffs intend to use Neher’s model to show how consumers would react to USC Rossier’s adjusted rankings range, as compared to being a top-ranked school. With this in mind, the argument USC makes about the exact precision of Neher’s estimation cannot carry the weight that USC places upon it. But to be sure, USC has identified several weaknesses of Neher’s model which can be subject to “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” The Court cannot and will not consider whether Neher’s model is right or wrong; it is satisfied at this juncture that Neher transparently and thoroughly explained her methodology in a way that can be tested and cross-examined. The Court is therefore not convinced that Neher’s model is the product of such unreliable methodology as to fail Daubert‘s gatekeeping standard.
The Court noted that Dennis extensively details the structure of his survey and has considerable experience executing similar surveys. And as just examined, the Court is satisfied at this juncture that Dennis is qualified and has proposed a reliable methodology. Accordingly, there is no basis to exclude Dennis’ proposed conjoint survey.
Case Details:
Case Caption:
Iola Favell Et Al V. University Of Southern California Et Al
