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  • Mechanical Engineering Expert Witness’ Testimony Excluded Because He Lacks Extensive Experience in Metallurgical Science

    Mechanical Engineering Expert Witness’ Testimony Excluded Because He Lacks Extensive Experience in Metallurgical Science

    This is a products liability case involving an articulating (i.e., multi-position) ladder manufactured by Little Giant Ladder Systems, LLC. On November 10, 2021, Jason Adams fell from a Little Giant ladder and suffered injuries. Adams asserted that he was using the ladder in the usual and ordinary manner when the rung on which he stood separated from the rest of the ladder. He testified that he inspects all ladders, he never dropped the subject ladder, and the subject ladder never fell from anything.

    Defendant moved to exclude the testimony of Plaintiffs’ expert, David Kassekert, P.E., on the grounds that he is unqualified and his opinions are unreliable. Kassekert intended to testify that a rung on the Plaintiff’s ladder failed when it separated from the side of the ladder because the welded connection did not penetrate the metal of the rung to which it was being welded, which resulted in a fatigue crack in the rung material.

    Plaintiffs moved to exclude the testimony of the Defendant’s expert, Dr. Ellen Wright, P.E., because her testimony does not comport with the facts of this case. Wright examined the subject ladder and performed destructive testing. Plaintiffs did not contest that she is a qualified expert who used reliable scientific methods. Instead, they challenge how she applied her analysis to the facts of the case. Wright intended to testify that the failure of the ladder at issue in this case was the result of a high loading event which overstressed the ladder aluminum, resulting in the detachment of the rung from the side of the ladder.

    Mechanical Engineering Expert Witness

    David Kassekert specializes in automotive and transportation accident reconstruction and product liability issues, including accidents involving various types of industrial equipment. He has provided technical consultations, investigations, research, analysis, reports and testimony in nearly 1000 cases in more than 18 years of forensic engineering work. Kassekert has been admitted as an expert in courts in seven states, six Federal Districts, 18 Pennsylvania Counties, and the OSHA Administrative Court system. He has testified for both the Plaintiff and Defense over 250 times.

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

    Metallurgical Engineering Expert Witness

    Ellen Wright is a Senior Consultant with ESi and a licensed professional engineer in Metallurgical and Materials Engineering. Wright specializes in failure analysis and prevention, fractography, and characterization of materials. Wright has experience with many modes of failure and forms of material degradation, such as fatigue, fracture, corrosion, wear, creep, distortion, and weld failures. She has conducted investigations involving a diverse array of products across many industries, such as manufacturing, transportation (aviation and aerospace, rail, maritime, and automotive), power generation, chemical processing, medical device, and construction.

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

    Discussion by the Court

    David Kassekert

    The Court held that Kassekert’s opinion in this case is based entirely on “visual examination and photography.” Physical testing is not always required. Basically, Kassekert is not qualified to offer an opinion based on a visual inspection of the ladder because Kassekert has not offered any prior experience in comparing welds, failed or not, and much of his experience with welds is in an amateur context.

    Kassekert’s mechanical engineering education and work experience as a professional engineer do not qualify him to comment on every kind of engineering. In his deposition, Kassekert acknowledged that metallurgical engineering was a distinct discipline from his own. Although Kassekert has specialized experience in mechanical engineering, particularly in the automotive industry, he does not have experience in metallurgical science sufficient to assist jurors in deciding whether the ladder collapsed due to an insufficient weld. The Court need not reach the reliability of Kassekert’s methods because he is not qualified based on knowledge, skill, experience, training, or education.

    Ellen Wright

    The parties agreed that Wright is a qualified expert in the area of metallurgical engineering who used reliable scientific methods. Plaintiffs sought to exclude her testimony because her opinion—that there was a sudden high loading event which overstressed the ladder aluminum—was not supported by the factual record. They emphasized that Adams testified he used the ladder in an ordinary manner.

    Plaintiffs focused on the final prong of Rule 702 of the Federal Rules of Evidence: “(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” Plaintiffs point to other courts’ descriptions of 702(d) as requiring the opinion “fit” the facts of the case.”

    Adams pointed to other courts’ descriptions of 702(d) as requiring the opinion “fit” the facts of the case. The Court held that Plaintiffs misunderstand this case. The issue of “fit” concerns whether the expert opinion as applied to the facts of the case is scientifically valid. Put differently, Wright’s analysis of failure in aluminum material would not fit the facts of this case if the subject ladder was made of plastic. Plaintiffs’ 702(d) argument misses the mark.

    Adams also argued that they are not required to exclude alternative causes for the malfunction of the ladder. Indeed, West Virginia law “does not require a Plaintiff, to succeed at the summary judgment stage, to conclusively eliminate all possible contributing causes other than a defect for an accident. This does not mean that the Court must exclude evidence of another possible cause for an accident because it conflicts with Plaintiffs’ theory of the case.

    Held

    • The Court granted Defendants’ motion to exclude the testimony of the Plaintiff’s expert, David Kassekert.
    • The Court denied Plaintiffs’ motion to exclude the testimony of the Defendant’s expert, Dr. Ellen Wright.

    Key Takeaways:

    • Kassekert does not have experience in metallurgical science sufficient to assist jurors in deciding whether the ladder collapsed due to an insufficient weld.
    • Wright’s analysis of failure in aluminum material was supported by the factual record.

    Case Details:

    Case Caption: Adams Et Al V. Little Giant Ladder Systems, Llc
    Docket Number: 3:22cv460
    Court: United States District Court, West Virginia Southern
    Order Date: November 13, 2024
  • Crime Scene Reconstruction Expert Witness Allowed to Testify Because He Did Not Base His Conclusion on Physiology

    Crime Scene Reconstruction Expert Witness Allowed to Testify Because He Did Not Base His Conclusion on Physiology

    This matter stems from an incident which constituted an officer-involved shooting (sometimes referred to as “OIS”). On January 15, 2019, Defendant Oliver Simmonds was an Atlanta Police Department (“APD”) Officer operating in a plain clothes capacity as a member of the Department’s Executive Protection Unit (“EPU”). Simmonds was driving an unmarked APD vehicle. Simmonds stopped to get fuel at a gas station located at 490 Whitehall Street in downtown Atlanta.

    While pumping gas Simmonds left the door unlocked. Simmonds left the smart key in the vehicle, which permits it to be started, if not already running, and driven. Plaintiffs’ son, D’Ettrick Griffin, got into the vehicle and started to drive away in an apparent attempt to steal it; Simmonds grabbed the door handle, D’Ettrick yelled something to Simmonds; and Simmonds did not say anything to D’Ettrick.

    Simmonds chased after the car, drew a pistol that he was carrying in the waistband of his pants, and fired twice striking D’Ettrick in the back once and killing him. D’Ettrick was not armed, though the Parties dispute whether Simmonds actually knew this; Simmonds told responding officers at the scene that D’Ettrick had a gun. 

    The City filed a motion to exclude Plaintiffs’ crime scene reconstruction expert, Scott Roder while Plaintiff filed a motion to exclude the testimony of Ken Katsaris.

    Crime Scene Reconstruction Expert Witness

    Scott G. Roder has consulted on over 1,000 cases in the united states and internationally and has been qualified numerous times as as expert in the field of forensic evidence analysis, shooting and crime scene reconstruction and forensic animation. His work involves a variety of matters including; officer involved shootings, edged weapons, suicide investigations, strangulations and hangings, medical and surgical reconstructions, motor vehicle accidents, workplace injuries, criminal matters involving the death penalty, police pursuits, personal injury litigation, and more.

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

    Discussion by the Court

    Scott Roder issued five opinions in this case:

    1. Based on the physical and forensic evidence and to a reasonable degree of scientific probability, the deceased was shot after he completed his left turn and was on the straight away.

    2. Based on the physical and forensic evidence and to a reasonable degree of scientific probability, its in NOT likely that Officer Simmonds shot Griffin whilst in the left U-turn maneuver. If this had in fact been the case, we would expect that Griffin would not be able to complete the turn and manipulate the vehicle to come straight and accelerate the distance of approx. 330 + feet before the vehicle impact with other cars and coming to a stop.

    3. Based on the physical and forensic evidence and to a reasonable degree of scientific probability, the gunshot wound that Griffin sustained is consistent with a forward seated orientation.

    4. Based on the physical and forensic evidence and to a reasonable degree of scientific probability, if the gunshot wound occurred during the left U-turn maneuver, we would expect a different body position for Griffin, namely leaned over towards the front passenger seat. The forces at work; centrifugal, momentum, and the gunshot wound all pushing Griffin to the right side of the passenger’s compartment.

    5. At this time, there is no physical, forensic, or photographic evidence that Officer Simmonds was attached to the vehicle or his jacket was closed in the door or that his foot was run over. Should that evidence become available for inspection, we reserve the right to amend opinion.

    City’s Objections

    The City raised four objections to the proposed opinions. First, the City argued that Roder’s opinions are contradicted by the record. But the City does not even attempt to tie this argument to the Daubert standard.

    Second, the City argued that Roder’s fourth opinion, “that Griffin was not shot during the u-turn because the bullet’s path through the body does not show that Griffin was leaning to the right, which he would have been during the u-turn,” is not reliable.

    Third, the City contended that Roder’s second opinion contains medical conclusions, which are outside of the scope of Roder’s qualifications.

    Analysis

    The Court agreed with Plaintiffs that the City’s reliability concerns do not rise to a level necessitating exclusion, instead only going to weight. The City can challenge the weight of the testimony through cross examination as well as through its own expert who is prepared to rebut Roder’s conclusion.

    Moreover, Roder clarified in his deposition that he did not base his conclusion on physiology, but based it on the empirical evidence typically relied upon by others in his field.

    The Court lastly turns to Roder’s “opinion” that there was no evidence that Simmonds’s jacket was closed in the door. The Court has already held that Simmonds’s testimony that his jacket was stuck in the door of the vehicle does not present a genuine or material dispute of fact precluding summary judgment on Plaintiffs’ Fourth Amendment claim, and therefore any testimony on this point would likely be moot. But, in the event this case is tried and either Defendant appears likely to put forth evidence or argument about the jacket, the Parties may revisit this issue.

    Held

    The Court denied the Defendant City of Atlanta’s motion to exclude Plaintiffs’ expert Scott Roder.

    Key Takeaway:

    City contended that Roder’s second opinion consisted of a conclusion about the physiological effects of D’Ettrick’s injuries. Out of context, the Court can see how a reasonable reader would conclude that this statement of what D’Ettrick could or could not do was a medical opinion, and Roder’s expert material provide no evidence of medical training or education that would lay a foundation for such opinions. However, Roder clarified in his deposition that he did not base his conclusion on physiology, but based it on the empirical evidence typically relied upon by others in his field.

    Since Roder’s materials do not provide a foundation for medical opinions, and in the event this matter is tried, the Court is prepared to supervise Roder’s testimony to ensure it does not veer into medical testimony.

    Case Details:

    Case Caption: Glover Et Al V. City Of Atlanta Et Al
    Docket Number: 1:20cv4302
    Court: United States District Court, Georgia Northern
    Order Date: September 17, 2024
  • Neuropsychology Expert Witness’ Testimony Regarding the Decedent’s Susceptibility to Undue Influence Admitted

    Neuropsychology Expert Witness’ Testimony Regarding the Decedent’s Susceptibility to Undue Influence Admitted

    In this instant interpleader action filed by Plaintiff Minnesota Life Insurance Company, Defendant Melissa D. Alexander (“Alexander”) claimed that undue influence caused her estranged husband to change a beneficiary designation on a life insurance policy. This change directed benefits to the decedent’s mother, Defendant Marcia Gayle (“Gayle”), and an adult son.

    Alexander sought to exclude Gayle’s rebuttal neuropsychology expert witness, Robert Brown, arguing that his opinion ignored several critical text messages between Gayle and the decedent. According to Alexander, these messages could provide evidence of Gayle’s undue influence on the decedent. In her brief, Alexander argued that Brown’s cursory treatment of these text messages undermined the factual basis of his opinion, making it unreliable and inadmissible.

    Gayle opposed the motion and explained that she had retained Brown solely to rebut Alexander’s neuropsychology expert, Jamie Ducharme. Since Ducharme also did not consider the text messages, Gayle argued that Brown was not obligated to address them.

    Neuropsychology Expert Witness

    Neuropsychology Expert Witness

    Robert Stanley Brown completed his undergraduate degree in biology at the University of Virginia. He attended medical school at the University of Virginia and graduated in 1981. Brown then completed dual residency training in internal medicine and psychiatry, and he served as the forensic psychiatry fellow at the University of Virginia Institute for Law, Psychiatry and Public Policy. He is board certified by the American Board of Medical Specialties in Internal Medicine, Psychiatry, and Forensic Psychiatry. Brown is licensed in Virginia, North Carolina, and West Virginia.

    He is a member of the American Academy of Forensic Sciences, American Academy of Psychiatry and the Law, American Psychiatric Association, and the Blue Ridge Chapter of the Psychiatric Society of Virginia.

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

    Discussion by the Court

    Alexander’s motion to exclude Brown’s testimony alleged that the opinion lacked factual support and was therefore unreliable. But as Gayle’s opposition correctly noted, Brown’s opinion analyzed the same evidence considered by Ducharme.That evidence included neuropsychological testing, medical records, and statements from the guardian ad litem and others. Far from lacking factual support, Brown conducted a detailed review of twenty-three categories of source material, including Ducharme’s reports, medical records, radiology reports, the decedent’s divorce pleadings, and discovery produced in this case. Alexander’s motion did not explain how Brown’s failure to also explore the text communications in detail undermines his otherwise rigorously documented opinions that the decedent had capacity and was not vulnerable to undue influence.

    The Court held that Brown’s detailed citation to the medical record, history of the decedent’s interaction with his divorce attorney, and statements made by both his treating physician and Ducharme herself, all provide support for his opinions.

    Alexander’s motion implied that the text messages between Gayle and the decedent provide evidence of Gayle’s undue influence on the decedent that Brown’s report does not negate. But Brown is a neuropsychologist. He was retained specifically to respond to medical evidence from another neuropsychologist, Ducharme, regarding the decedent’s capacity and susceptibility to undue influence. The Court concluded that Brown was not required to respond to every theory Alexander asserted and his failure to discuss in detail any specific text messages (and none have been identified) does not render his opinion inadmissible.

    Held

    The Court denied Alexander’s motion to exclude Gayle’s neuropsychology expert witness Robert S. Brown’s rebuttal expert opinions and testimony.

    Key Takeaway:

    When a motion to exclude questions the factual underpinnings of an opinion, such complaints generally affect the weight and credibility of the witness’ assessment, not its admissibility, and are best addressed by cross examination. The trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system, and consequently, the rejection of expert testimony is the exception rather than the rule!

    Please refer to the blog previously published about this case:

    Law & Legal Expert Witness’ Testimony Excluded Despite Her Experience Assessing the “Cognitive Abilities” of Adults

    Case Details:

    Case caption: Minnesota Life Insurance Company V. Alexander Et Al
    Docket Number: 2:22cv207
    Court: United States District Court for the Eastern District of Virginia, Norfolk Division
    Dated: November 6, 2024
  • History Expert Witness Allowed to Testify Because He Utilized the Same Methodology Used By All Historians

    History Expert Witness Allowed to Testify Because He Utilized the Same Methodology Used By All Historians

    This case involves the alleged unconstitutionality of House Bill No. 71, Act 676 (“H.B. 71” or the “Act”).

    This law provides in relevant part: No later than January 1, 2025, each public school governing authority shall display the Ten Commandments in each classroom in each school under its jurisdiction. The nature of the display shall be determined by each governing authority with a minimum requirement that the Ten Commandments shall be displayed on a poster or framed document that is at least eleven inches by fourteen inches. The text of the Ten Commandments shall be the central focus of the poster or framed document and shall be printed in a large, easily readable font.

    Defendants Cade Brumley, Conrad Appel, Judy Armstrong, Kevin Berken, Preston Castille, Simone Champagne, Sharon Latten-Clark, Lance Harris, Paul Hollis, Sandy Holloway, Stacey Melerine, Ronnie Morris, East Baton Rouge School Board, and St. Tammany Parish School Board (collectively, “AG Defendants”) challenged Plaintiffs’ introduction of Steven K. Green as an expert witness under the Daubert standard.

    History Expert Witness

    Steven K. Green earned a B.A. degree in History and Political Science, Magna Cum Laude, from Texas Christian University in 1978 where his minor was Religious Studies. He graduated from the University of Texas School of Law in 1981, earning a J.D. degree. In 1987, he received a Master’s degree in American Religious History from the University of North Carolina, Chapel Hill and a Ph.D. in Constitutional History from the same university in 1997. He is currently the Fred H. Paulus Professor of Law and Affiliated Professor of History and Religious Studies at Willamette University in Salem, Oregon, where he was also the Director of the Willamette Center for Religion, Law and Democracy from 2007 to 2020. He has authored “seven books and more than fifty scholarly articles and book chapters” in the area of “the intersection of law, religion, and history.”

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

    Discussion by the Court

    In his report and testimony, Green offered opinions regarding “the history of the U.S. Constitution and First Amendment with respect to religious matters; the history of the Ten Commandments with respect to U.S. law and government; the history of displays of the Ten Commandments in public schools; and the denominational nature of the specific version of the Ten Commandments adopted in House Bill No. 71, Act No. 676 . . . .” In his report and testimony, Green offered “four key conclusions”: –

    • The Religion Clauses of the First Amendment were rooted in the Founders’ profound concerns for protecting the conscience of individuals and religious communities; avoiding official denominational preferences, including official promotion of religious doctrine; and preventing the religious divisiveness that flows from government favoritism of some religions or non-religion.
    • The historical record demonstrates that the Ten Commandments are not a foundation of the American Government or legal system.
    • There is no evidence of a longstanding historical acceptance and practice of widespread, permanent displays of the Ten Commandments in public school classrooms.
    • The version of the Ten Commandments adopted under H.B. 71 is Protestant and thus religiously exclusive.

    Summary of AG Defendants’ Arguments

    AG Defendants contended that Green has failed “to identify any external standard validating his methodology.” Moreover, his opinions “attempt to overrule the Supreme Court on historical questions it has already definitively asked and answered.” AG Defendants added that Green’s proffered opinions are not truly independent because of his background as an advocate.

    Most importantly, Green’s opinions are not relevant because (a) “the standard [governing the Establishment Clause] is not concerned with whether a specific challenged practice occurred in the past, but instead with whether the current challenged practice reflects any of the already-identified hallmarks of a religious establishment[,]” and (b) his opinions do “not tend to establish any fact at issue [since] the historical facts are not in dispute, just how to characterize those facts.”

    Analysis

    A. Has Green Used an Accepted Methodology in Reaching His Opinions?

    AG Defendants argued that Green has failed to use, or at least identify, an “external standard validating his methodology.” But in his report, Green explains the methodology he used for his historical analysis which he described as “standard and well-accepted methodologies used by historians” including “review[ing] both primary and secondary sources[,]” determining the reliability of the sources, comparing their consistency to other evidence, considering the circumstances of their production (including the place, time and source of production), “consider[ing] how the plain language of the source would have been interpreted at the time of its writing, and avoid[ing] the application of modern interpretations to documents that were centuries old.”

    At the Daubert hearing, during both direct and cross-examination, Green went into greater detail regarding the standard methodology utilized by historians in reaching conclusions and how he utilized this methodology in reaching his opinions in this case. To the extent that he relied on his prior work in this area, he explained that he followed that same methodology there. In both direct and cross-examination, Green pointed to the fact that many, if not most, of the books and articles relied upon by him had been peer-reviewed and explained the peer-review process.

    Counsel for the AG Defendants acknowledged that Fifth Circuit precedent does not require the same criteria for measuring reliability of expert testimony in the “soft sciences” as in the “hard sciences.” Similarly, and pertinent to this case, the Fifth Circuit has concluded that “soft sciences” involve “necessarily diminished methodological precision” when compared to other scientific disciplines like mathematics and engineering.

    The Court found that Green has shown a well-articulated, supported, and adequate methodology used in reaching his opinions and therefore denies this basis for AG Defendants’ Daubert challenge.

    B. Do Green’s opinions “attempt to overrule the Supreme Court on historical questions it has already definitively asked and answered”?

    AG Defendants argued that Green’s opinions “attempt to overrule the Supreme Court on historical questions it has already definitively asked and answered.” Specifically, AG Defendants pointed to Green’s statement that “the Ten Commandments are not a foundation of the American government or legal system.” They argued that this is at odds with Supreme Court and Fifth Circuit jurisprudence.

    AG Defendants contended that Green’s opinions contradict the Supreme Court and is thus ipso facto unreliable.

    To state the obvious: contrary to AG Defendants’ suggestion to the contrary, an expert cannot “overrule” a Supreme Court opinion. Indeed, experts cannot render legal conclusions at all. But Green was not tendered as a legal expert and, indeed, the Court sustained objections to questions posed to Green by counsel for AG Defendants during cross-examination that attempted to elicit legal opinions from him.

    The Court held that AG Defendants’ objections go to the merits of his testimony and are therefore a matter for cross-examination at the hearing rather than exclusion via a Daubert motion.

    C. Does “Green’s background as an advocate . . . mean[ ] his proffered opinions are not truly independent and are thus unreliable”?

    AG Defendants argued that “Green’s background as an advocate means his proffered opinions are not truly independent and are thus unreliable.” They maintained that his work for Americans United for Separation of Church and State (“AUSCS”) for over a decade including directing the organization’s litigation practice and representing AUSCS in cases similar to the present one “indicated a potential for bias.”

    Both sides agreed that the fact that an expert is an employee or former employee of a party is not grounds for automatic exclusion and that employees and former employees are sometimes admitted as experts.

    The Court agreed with Plaintiffs that AG Defendants have failed to show bias merely because of Green’s employment with AUSCS some twenty years ago, and this is especially true in light of Green’s extensive scholarship in the area at issue. Despite the opportunity to cross-examine Green on this issue, AG Defendants have offered no additional evidence of supposed bias.

    D. Are Green’s Opinions Relevant to the Issues to be Decided?

    The Court rejected AG Defendants’ arguments regarding the alleged irrelevance of Green’s opinions.

    E. Is There a Lessened Need for Daubert Scrutiny?

    If this Daubert motion were in advance of a jury trial, the Court would, for the reasons stated above, find Green’s methodology and the reliability of his opinions such that the Court would deny the Motion. But the testimony was given at a preliminary injunction hearing tried to the bench where “[t]here is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself.” This is an additional reason that denial of the Motion is warranted.

    Held

    The Court denied the Defendants’ motion to exclude the testimony of Steven Green.

    The Court accepted Green as an expert in the fields tendered: the history of the United States Constitution and the First Amendment with respect to religious matters, the history of religion in U.S. public schools, and denominational variations in the text of the Ten Commandments.

    Key Takeaways:

    • It is not the role of the court to decide whether an expert’s opinions are correct or, in the case of competing and conflicting expert opinions, which one is right or even which one has greater support. It will often occur that experts come to different conclusions based on contested sets of facts. A Daubert challenge does not test the correctness of the opinion but only the methodology utilized by the expert.
    • The fact that an expert is an employee or former employee of a party is not grounds for automatic exclusion and employees as well as former employees are sometimes admitted as experts.
    • Both in his report and in his testimony, Green explained in exquisite detail how his “four key conclusions” were supported by historical sources and the other data upon which he relied.

    Case Details:

    Case Caption: Roake Et Al V. Brumley Et Al
    Docket Number: 3:24cv517
    Court: United States District Court, Louisiana Middle
    Order Date: November 12, 2024
  • Music Industry Expert Witness’ Testimony on Proximity of Products Admitted

    Music Industry Expert Witness’ Testimony on Proximity of Products Admitted

    The parties in this case are estranged corporate siblings.  Plaintiff Ultra Records LLC is a music recording company. Defendant Ultra International Music Publishing LLC is a music publishing company. (The Court refers to Ultra Records as “Records” and Ultra International Music Publishing as “Publishing.”) Records has sued Publishing for trademark infringement under the Lanham Act, breach of contract, and other claims related to Publishing’s use of the “Ultra” name.  For its part, Publishing sought a declaration confirming its right to use that name.

    Records sought to exclude the testimony of Bijan Amirkhani and portions of the testimony of Gary Casson. Publishing sought to exclude the testimony of Jeff Rougvie. 

    Music Industry Expert Witnesses

    Bijan Amirkhani began his career over fifteen years ago, initially as a hobby, and then transitioning to a professional producer around 2017, when he received a major placement for an album he helped produce. In the same year, an album he co-produced earned 9X Platinum status and garnered over 1.4 billion streams on Spotify. In addition to these successes, Amirkhani has worked with many recording artists, including such famous ones as Lil Wayne, Kanye, YG, and Sabrina Claudio. Amirkhani also participates in writing camps around the world and interacts with hundreds of recording artists, producers, and songwriters to develop music for various products.

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

    Gary Casson is an attorney and executive who has worked in the music industry for more than 45 years. He has been retained by a number of organizations and major music companies including the RIAA, Sony Music and the Warner Music Group.

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

    Jeff Rougvie is a senior entertainment industry executive with extensive experience in the evaluation, acquisition, monetization and reformatting of IP. He has intimate knowledge of sales, marketing, distribution, and intellectual property law within entertainment and licensing industries.

    Discover more cases with Jeff Rougvie as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    Bijan Amirkhani 

    Bijan Amirkhani’s report discusses the differences between record companies and music publishers, the reasons why songwriters sign with publishing companies, the factors songwriters and producers consider when choosing a publishing company, and the likelihood of confusion “if a record company and publishing company have similar names, but are owned by unrelated entities.”

    Records objected that Amirkhani does not have the right sort of personal experience to make him an expert on music industry practices. The Court held that Records doesn’t—and can’t—deny that Amirkhani has practical experience in the general field at issue here. Beyond that, whether he has precisely the sort of experience Records thinks he should “go[es] to the weight, not the admissibility, of his testimony.” Amirkhani used this practical experience as the factual basis for his testimony. His testimony is based on the experience he gained in working with “hundreds of songwriters and publishers” and his own personal experience as a songwriter and producer.

    However, the Court held that Amirkhani’s opinion that no one would be confused by Records and Publishing having the same name is plainly out of bounds. As Records points out, Amirkhani’s report failed to provide any reliable basis for his assurances about what’s going on inside the heads of other people.

    If Amirkhani were testifying as a fact witness based on his personal knowledge, he certainly could have offered testimony about his own confusion (or lack thereof). But it is precisely to smuggle in otherwise inadmissible market-wide testimony—with no basis in evidence from the marketplace—that he’s been presented as an expert. The Court held that Rule 702 doesn’t allow that.

    Gary Casson

    Casson’s report discusses the functions of a music publisher, the functions of a record label, and differences between the two. Casson also discusses the history of the Ultra name.

    Records acknowledges that much of Casson’s testimony is admissible. It objects to just two paragraphs in his report. In each of these paragraphs, Casson stated point-blank that there is no likelihood of confusion for a particular group of music industry customers.

    Publishing said that expert testimony about how consumers decide what to purchase doesn’t require survey evidence, so long as the expert doesn’t speak “about confusion when consumers are faced with the marks.” According to Publishing, Casson will only testify that the marks aren’t part of the buying process, not about confusion between the marks.

    If that is the limit of Casson’s testimony, then there is no issue. However, the Court held that Casson’s report states directly that there is no likelihood of confusion among songwriters, DSPs, and synch licensees. That’s an opinion about confusion unmoored from a valid survey or other reliable basis in fact. As Records seems to recognize with its surgical objections, the problem with Casson’s testimony is that he ventures beyond a description of consumers’ buying practices to opine on confusion, which he has no basis to do.

    Jeff Rougvie

    Rougvie discusses the degree of competitive proximity between record companies and publishing companies.

    Qualifications

    Publishing claims that Rougvie is unqualified, that his testimony is unreliable, and that his opinions are irrelevant to the issues to be tried.

    On Rougvie’s qualifications, Publishing’s argument isn’t that Rougvie lacks experience. Publishing instead claimed that Rougvie lacks both recent and the correct type of experience in the music industry. To Publishing’s credit, Rougvie does characterize the music industry as subject to major “technological disruption.” However, just because the industry is consistently changing doesn’t mean, in Court’s opinion, that Rougvie’s four decades in the industry amount to nothing.

    Publishing pointed to Rougvie’s lack of knowledge about several major organizations for songwriters as evidence of his ignorance about songwriters specifically. But Rougvie’s decades of experience in the music industry qualifies him to testify; the Court held that Publishing can air its specific gripes concerning the limits of that experience at trial.

    Reliability

    Second, Publishing objected that Rougvie’s opinions lack a sufficient factual foundation and are misleading. Publishing’s main complaint is that Rougvie failed to investigate the facts underlying his opinions thoroughly. Again, these criticisms are better directed at cross-examination, not exclusion. On the Court’s read of Rougvie’s report, it contains conclusions about record companies and publishing companies based on Rougvie’s personal experience and explanations of why that experience is relevant to those conclusions.

    Publishing also points to what it views as unsubstantiated implications of statements in Rougvie’s report, including about the business choices of Taylor Swift and the reason why half of Ultra Records was sold in 2012. But the testimony itself satisfies the Rule 702 bar. Just as Publishing was able to explain those unsupported inferences in its briefing, the Court held that it can expose any weaknesses in Rougvie’s testimony during cross-examination. 

    Relevance

    The Court held that Rougvie’s report discusses the similarities between the services offered by record companies and publishing companies—a key issue in this case. Proximity of products is one of the factors courts use to determine the likelihood of confusion in a trademark-infringement action.

    Publishing doesn’t really engage with this response. Instead, it reasserts that Rougvie’s testimony is based on speculation and is misleading. However, the Court rejects these arguments as grounds for exclusion.

    Held

    • The Court granted in part and denied in part Records’ motion to exclude the expert testimony of Bijan Amirkhani and portions of the expert testimony of Gary Casson.
    • The Court denied Publishing’s motion to exclude the expert testimony of Jeff Rougvie.

    Key Takeaway:

    The Court excluded the likelihood of confusion opinions offered by Amirkhani  and Casson because they lacked a reliable basis in fact. Rougvie’s report, however, sheds light on the degree of competitive proximity between record companies and publishing companies. Discussing the similarities between the services offered by record companies and publishing companies is relevant because proximity of products is one of the factors courts use to determine the likelihood of confusion in a trademark-infringement action. Though Publishing claims Rougvie doesn’t have experience in the relevant niche within the music industry, the Court held that Rougvie’s decades of experience in the music industry qualifies him to testify.

    Case Details:

    Case Caption: Ultra Records, Llc V. Ultra International Music Publishing, LLC
    Docket Number: 1:22cv9667
    Court: United States District Court, New York Southern
    Order Date; November 4, 2024
  • Extensive and Complicated Report by Architecture Expert Witness Admitted Despite Claims of Insufficient Disclosure

    Extensive and Complicated Report by Architecture Expert Witness Admitted Despite Claims of Insufficient Disclosure

    In 2015, Defendant/Counter-Plaintiff C70 Builders, Inc. contracted with Plaintiff Mid-South Outlet Shops, LLC c/o Tanger Management, LLC for the construction of the Tanger Outlets Southaven, an open-air mall in Southaven, Mississippi. The Mall opened in November 2015. According to C70, the first design modifications were subsequently installed at several buildings on the Project by C70 pursuant change orders under the Original Contract, and at other buildings by a different contractor retained separately by Tanger (these first modifications were named the “VF Fix”). Beginning in 2019, other agencies and consultants were retained by both Tanger and C70 to help identify the source and propose remedial action for ongoing water intrusion issues. These remediation efforts also included the execution of a second contract in February 2020 between C70 and Tanger for C70 to install additional modified waterproofing designs (the “Pier Replacement Contract”).

    Façade Due Diligence Report

    In August 2021, Tanger retained Jeffrey Mason, and his company, WGI, Inc. (“WGI”), to review all pertinent documents related to the construction for the project including subsequent reviews, repairs and drawings created after the retail buildings were completed. This review was to be done to provide ownership with WGI’s evaluation of these documents and to direct ownership on next steps based on the findings. In connection with this review, WGI was to prepare a written report summarizing its findings of the construction documents, initial construction of the buildings, subsequent reviews, tests, and previous repairs with photographs of representative conditions, an estimate of probable construction costs, and recommendation of how to proceed concerning warranties and deadlines for litigation. WGI generated a “Façade Due Diligence Report” bearing Mason’s name on November 16, 2021 (the “First WGI Report).

    Shortly thereafter, Tanger advanced claims for breach of contract and negligence, alleging that there have been “numerous incidents of defective construction, some of which have caused substantial water infiltration” throughout the Site. According to C70, these allegations are taken almost verbatim from the executive summary of the First WGI Report.

    C70 filed a motion to strike reports and testimony of Jeffrey Mason, the designated expert of Tanger for the reason that his disclosures as an expert witness are insufficient under Rule 26 of the Federal Rules of Civil Procedure and on the basis of “… the prejudicial impact of allowing him to testify without C70 having had an opportunity to depose him prior to the September 13, 2024 deadline for the filing of Daubert and dispositive motions.”

    Architecture Expert Witness

    Jeffrey Mason has extensive experience managing a wide range of architectural projects and the production of construction documentation. His areas of expertise include exterior facade restoration and rehabilitation, several types of construction projects including, but not limited to the following: large mixed-use commercial developments, adaptive re-use projects, historic restoration projects, retail developments, and multi-family developments.

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

    Discussion by the Court

    Discovery in this long pending, multi-party construction case has no doubt resulted in extensive and complicated reports of experts.

    The Court held that the rule is quite clear, as Local Rule 26(a)(3) states: Failure to Disclose. If a party fails to make a disclosure required by [Local Rule 26], any other party must move to compel disclosure and for appropriate sanctions under Fed. R. Civ. P. 37(a) …. Challenges as to inadequate disclosure of expert witness(es) must be made no later than thirty days before the discovery deadline or will be deemed waived.

    Moreover, not only is the rule plain, but the reason for its having been adopted in the Northern and Southern District Courts of Mississippi is due to its inherent fairness.  The Court found C70’s counsel’s failure to have addressed the rule in its lengthy recitation of both rule Fed. R. Civ. P. 26 and L.U. Civ. R. 26(a)(3) in its 27-page memorandum or by way of reply brief concerning.

    Whether C70 has waived its challenges to the sufficiency of Tanger’s multiple expert disclosures of Mason under Fed. R. Civ. P. 26 due to its failure to timely raise them

    C70 correctly pointed out that in evaluating whether a violation of Rule 26 is harmless, the Fifth Circuit has held that district courts are to consider: (1) the importance of the evidence; (2) the prejudice to the opposing party of allowing the witness to testify; (3) the possibility for curing such prejudice by granting a continuance; and (4) the explanation, if any, for the party’s failure to comply with the disclosure requirements. C70 insisted that these factors mandate an exclusion of Mason as an expert witness, retained or otherwise. Tanger argued that C70 never made any suggestion that Tanger’s multiple expert disclosures were insufficient under either Fed. R. Civ. P. 26(a) or L.U. Civ. R. 26 until well after the discovery deadline and just two days before the dispositive and Daubert motions deadline. As such, Tanger argued that its challenges to the adequacy of the disclosures have been waived.

    The Court found that C70 has not demonstrated any actual prejudice from any claimed inadequacy of the disclosure of Mason since a denial of its motion to strike based thereon due to its waiver does not make those expert disclosures any more comprehensive or capable of withstanding a Daubert challenge than they actually are. In other words, unless the district judge finds otherwise, Mason, as an expert, will be limited at trial to offering those facts and opinions that have actually been disclosed and which withstand any Daubert challenge.

    Held

    The Court denied Defendant/Counter-Plaintiff C70 Builders, Inc.’s (“C70”) motion to strike reports and testimony of Jeffrey Mason, for insufficient disclosure.

    Key Takeaways:

    • When C70 contented that Tanger’s multiple expert disclosures were insufficient under either Fed. R. Civ. P. 26(a) or L.U. Civ. R. 26, the Court noted C70’s failure to timely raise challenges to the sufficiency of Tanger’s multiple expert disclosures.
    • The Court found that C70 has not demonstrated any actual prejudice from any claimed inadequacy of the disclosure of Mason since a denial of its motion to strike based thereon due to its waiver does not make those expert disclosures any more comprehensive or capable of withstanding a Daubert challenge than they actually are.

    Case Details:

    Case Caption: Mid-South Outlet Shops, Llc V. C70 Builders, Inc.
    Docket Number: 3:21cv256
    Court: United States District Court, Mississippi Northern
    Order Date: November 4, 2024
  • Law & Legal Expert Witness’ Testimony Excluded Despite Her Experience Assessing the “Cognitive Abilities” of Adults

    Law & Legal Expert Witness’ Testimony Excluded Despite Her Experience Assessing the “Cognitive Abilities” of Adults

    This case is an interpleader action to determine the rightful beneficiary of a $114,000 life insurance policy. The dispute centers around whether Gary Lee Alexander (“Gary”) had the capacity to execute a change in beneficiary designation on September 3, 2020, and whether Defendant Marcia Gayle (Gayle) unduly influenced Gary to make that change.

    In response, Gayle filed a Motion to Strike and a supporting Memorandum, seeking to exclude the testimony of Dr. Jamie K. Ducharme and Guardian Ad Litem Ann H. Larkin, Esq. (“Ms. Larkin” or the “GAL”). Gayle argued that the GAL’s testimony should be struck, claiming it was inadmissible hearsay and lacked foundation. Gayle also contended that Alexander could not demonstrate the GAL was qualified as an expert under Rule 702. Additionally, Gayle argued that Dr. Ducharme’s testimony should be excluded because it lacked sufficient factual support.

    Law & Legal Expert Witness

    Ann H. Larkin is a Shareholder at Midgett Preti Olansen. She focuses her practice on estate planning, estate and trust administration, special needs planning and guardianship and conservatorship matters. Also, Larkin is certified by the Virginia Supreme Court as a guardian ad litem for incapacitated adults.

    Larkin graduated cum laude from the State University of New York at Binghamton with a B.A. in English Literature and Rhetoric. She received her Juris Doctor from William and Mary Law School. After law school Larkin was a law clerk to the Honorable Robert W. Wooldridge, Jr. of the 19th Judicial Circuit of Virginia. Moreover, she practiced in the litigation group at a Washington, D.C. law firm, served as an assistant Commonwealth’s Attorney in Fairfax County, Virginia, and worked as a staff attorney for a Commissioner of Accounts in Norfolk, Virginia.

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

    Neuropsychology Expert Witness

    Jamie Kollar Ducharme is a licensed clinical psychologist who is board certified in clinical neuropsychology.

    She specializes in head injury/concussion assessment, capacity evaluations, workman’s compensation, consultation. and medical records review. Moreover, she is a member of the American Academy of Clinical Neuropsychology as well as the American Psychological Association.

    Want to know more about the challenges Jamie Kollar Ducharme has faced? Get the full details with our Challenge Study report.   

    Discussion by the Court

    1. Ann Larkin, Esq.

    Defendant Melissa Alexander, Gary’s widow, contended that Larkin is qualified to testify as an expert because she is experienced as a GAL in assessing the “cognitive abilities” of adults to determine whether they need a guardian or conservator.

    However, Gayle argued that Larkin’s testimony is more appropriately characterized as lay witness testimony under Federal Rule of Evidence 701.

    Basically, a GAL is a lawyer tasked with investigating facts and applying the law to those facts. That the GAL frequently assesses the competency of others alone does not satisfy the Court that she has any “specialized knowledge” that would help the trier of fact.

    Moreover, there is no recognized area of expertise associated with interviewing third parties, doctors, and others to determine whether someone needs a guardian or conservator. Any testimony that the GAL would provide is therefore not the “product of reliable principles and methods,” and would not reflect “a reliable application of the principles and methods to the facts of [this] case.”

    2. Dr. Jamie Ducharme

    To begin with, Ducharme conducted a neuropsychological evaluation of Gary for the state court guardianship proceeding in November 2020 (the “2020 Evaluation”). 

    However, Gayle argued that Ducharme’s testimony is not based on sufficient facts and is not reliable within the meaning of Federal Rule of Evidence 702.

    While many of Gayle’s objections may be proper subjects for cross-examination, they are insufficient to persuade the Court to exclude Ducharme. The Court found that Ducharme is a qualified expert proposing to testify to scientific knowledge that will assist the trier of fact in understanding or determining a fact in issue. In addition, her opinion is based upon sufficient facts and data and is a product of reliable principles and methods. That Ducharme did not consider all of the same materials that Gayle’s rebuttal witness considers is not a proper basis for exclusion. Furthermore, the Court did not find that the probative value of such testimony is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the bench at trial.

    Held

    • The Court granted Defendant Marcia Gayle’s motion to exclude the testimony of Ann Larkin.
    • The Court denied Defendant Marcia Gayle’s motion to exclude the testimony of Jamie Ducharme.

    Key Takeaways:

    A GAL is a lawyer tasked with investigating facts and applying the law to those facts. That the GAL frequently assesses the competency of others alone does not satisfy the Court’s requirement of any “specialized knowledge” that would help the trier of fact. Basically, there is no recognized area of expertise associated with interviewing third parties, doctors, and others to determine whether someone needs a guardian or conservator.

    Therefore, Larkin is not an expert within the meaning of Federal Rule of Evidence 702 and her testimony is not admissible as expert testimony.

    Case Details:

    Case Caption: Minnesota Life Insurance Company vs. Melissa D Alexander, et al
    Docket Number:  2:22cv207
    Court: United States District Court for the Eastern District of Virginia, Norfolk Division
    Order Date: November 4, 2024
  • Firearms & Ballistics Expert Witness’ Conclusions about how Bullets Behave Within the Body Admitted

    Firearms & Ballistics Expert Witness’ Conclusions about how Bullets Behave Within the Body Admitted

    Antoinette Tillman, Individually and as Adminstratrix of the Estate of George Homer Tillman III, brought this action on behalf of George Homer Tillman III against Defendants alleging excessive deadly force, as well as corresponding claims under New York state law, all stemming from a fatal police shooting that occurred on April 17, 2016. The Defendants opened fire on Tillman, killing him.

    In his expert report, Plaintiff’s expert David Balash criticized several conclusions reached by Kristen Landi, the medical examiner who conducted the autopsy of the decedent, George Tillman.  In particular, he disagrees with Landi regarding the source and trajectories of various bullets that struck Tillman. 

    Defendants have moved to preclude Balash’s expert testimony. On September 23, 2024, Defendants’ motion was granted in part—specifically, Balash was precluded from testifying as to the results of a test live firing exercise he witnessed, from which he attempted to ascertain the position of the firing officers by marking the locations where spent shell casings hit the ground.  The Court reserved decision on the core of Balash’s report—his opinions regarding the trajectories of the various bullets that struck Tillman—pending a Daubert hearing.

    At the Daubert hearing, Balash testified as to the bases for those opinions. He also opined, for the first time, that officers failed to properly maintain the scene of the shooting surrounding Tillman’s body during their investigation.  He described his conclusions as being based on videos disclosed by the Defendants to Plaintiff after discovery had closed, though he explained that those videos likely would not have affected his core conclusions.

    Following the hearing, the parties submitted letters supplementing their motion in limine briefing.

    Firearms & Ballistics Expert Witness

    David Balash has extensive practical experience examining shooting victims. He has worked in the field of forensic ballistics for over fifty years, first at various positions within the Michigan Department of State Police, then as an independent forensic consultant. Over this time, he has “examined hundreds of shooting victims at crime scenes, autopsies, hospitals and funeral homes” and has “used and interpreted X-rays at crime scenes, autopsies, and hospitals.” 

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

    Discussion by the Court

    Balash objected to Landi’s conclusion that bullet “A” entered Tillman’s skull, “struck the inner table of the skull with associated fractures of the right middle fossa of the base of the skull and changed direction upward and to the left to the right parietal and frontal lobes.” He opined that “bullets do not change directions to travel back along the same or virtually the same path without something extremely forceful causing that movement.” He concluded that, accepting Landi’s autopsy findings as true, “the only force capable of that change of direction would be a solid hard mass preventing the bullet in question from exiting the skull in the first place” and that “Tillman’s head had to have been against the pavement to explain this bullet’s flight path.”

    At the Daubert hearing, Balash clarified that he was not opining that Tillman’s head was, in reality, laying against the pavement when bullet “A” was fired—only that that was the only explanation consistent with Landi’s autopsy notes, which he considers flawed. 

    Qualifications

    The Court held that Balash’s years of experience examining shooting victims and X-rays qualifies him as an expert to dispute Landi’s conclusions regarding the trajectories of the bullets fired at Tillman. Defendants did not explain why Balash’s practical experience is insufficient to qualify as specialized knowledge regarding gunshot trajectories. Nor did they explain why a medical degree is required to qualify as an expert in this field.

    Reliability

    Balash’s testimony at the Daubert hearing has satisfied the Court that he reached his conclusions about how bullets behave within the body via reliable evidence and methods. Balash testified that he based his opinion—that “[b]ullets do not change directions to travel back along the same or virtually the same path” naturally within the body—on his accumulated experience examining hundreds of autopsies of shooting victims involving bullets of various calibers.

    Moreover, Balash’s testimony established that his inferences about bullet trajectories from the shape of the entry wounds, debris found on the decedent’s body around the entry wounds, and condition of the recovered bullets were reliably founded on his extensive history investigating shooting victims and crime scenes.

    Relevance

    With respect to Balash’s opinions articulated in his expert report on the propriety of the post-shooting investigation and evidence collection conducted by the NYPD and Landi, as the Court indicated at the September 23 conference, Balash may testify as to the specific criticisms he expressed in his report and at the Daubert hearing regarding how Landi’s autopsy procedure was conducted, so long as those criticisms inform his other opinions about why Landi’s conclusions regarding the sources and trajectories of the fired bullets are incorrect or suspect. The Court made it very clear that criticisms of the NYPD and Landi that do not bear on these conclusions, in contrast, are not relevant.

    Late Disclosure

    Finally, Balash’s opinions regarding how officers should have maintained the scene of the shooting for purposes of evidence preservation are precluded by the Court. If the observations in the videos affected Balash’s opinions, he could have supplemented his expert report anytime in the year since the plaintiff received them. The Court held that permitting him to testify as to a brand-new opinion not contained in his report on the eve of trial would run afoul of Federal Rule of Civil Procedure 26(a)(2)(B).

    Held

    The Court denied Defendants’ motion in limine to preclude Balash’s expert opinions about Landi’s conclusions regarding the trajectories of bullets fired at Tillman. However, the Court precluded Balash from offering opinions about the maintenance of the scene of the shooting that were not contained in his expert report.

    Key Takeaway:

    Balash was allowed to form his expert opinions via inferences from his extensive practical experience, and his failure to cite scientific studies regarding bullets’ behavior within the body did not render his opinion inadmissible. Balash based his opinion on his accumulated experience examining hundreds of autopsies of shooting victims involving bullets of various calibers.

    Case Details:

    Case Caption: Tillman V. The City Of New York Et. Al
    Docket Number: 1:18cv2211
    Court: United States District Court, New York Eastern
    Order Date: November 07, 2024
  • Biomechanical Engineering Expert Witness’ Opinions About the UTV Industry Admitted

    Biomechanical Engineering Expert Witness’ Opinions About the UTV Industry Admitted

    Stephen J. Ratcliffe has brought a lawsuit against BRP, the manufacturer, and Tidd’s Sport Shop, Inc. (Tidd’s), the dealer, of a 2019 Can-Am Maverick X3, a utility terrain vehicle (UTV), asserting negligence and strict liability claims arising out of an incident in which Ratcliffe’s UTV rolled onto its side and crushed his arm. The Plaintiff is pursuing design defect and failure-to-warn theories of recovery. During discovery, by report dated September 8, 2022, Ratcliffe designated Dr. Robert J. Nobilini, a professional engineer, as an expert witness.

    BRP U.S., Inc. (BRP) filed a motion in limine to exclude the engineering opinions of Nobilini on the ground that they violate the constraints of Federal Rule of Evidence 702 and the caselaw implementing Daubert and Kumho.

    Of Nobilini’s thirteen discrete opinions, BRP specifically focuses on his conclusions that “(i) humans—like Plaintiff—have a natural protective response to extend one’s hand/arm during a UTV rollover; (ii) BRP’s warnings were inadequate or ineffective to prevent the natural protective response; and (iii) the lack of an adequate restraint system to prevent the occupant’s arm from leaving the roll cage during a rollover made the Subject Vehicle unreasonably dangerous for its intended use.”

    BRP’s motion includes many catchphrases for expert disqualification. (“unreliable and unscientific opinion testimony,” “no presumption of admissibility,” “untested and demonstrably false,” “inapplicable research studies and misleading, irrelevant and anecdotal videos, rather than testing or literature”). However, when analyzed, the crux of its argument against Nobilini’s testimony is that it is unreliable because he failed to test his opinions about alternative designs. BRP rejected Nobilini’s analogy to the response in a trip-and-fall and describes the analogy as a “classic apples to oranges comparison.”

    Biomechanical Engineering Expert Witness

    Robert J. Nobilini performs mechanical and biomechanical engineering investigations and analyses of accidents. He offers expert testimony related to slip, trip and fall accidents, automobile accidents, industrial accidents, sports and amusement related accidents, and the safety and failure of products. He  is a member of numerous professional societies, including the American Society of Mechanical Engineers, the American Society of Biomechanics, and the Society of Automotive Engineers.

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

    Discussion by the Court

    The Court noted that BRP has, rightly, not questioned Nobilini’s qualifications as a professional engineer. After all, Nobilini is well-qualified as a mechanical engineer with a concentration in biomechanics.

    The Court found BRP correct in its assertion that Nobilini does not refer to any studies that corroborate his view that a person would naturally extend an arm to break a fall specifically during a UTV rollover. Nevertheless, the Court does not view Nobilini’s proposed testimony as his own ipse dixit. Instead, Nobilini based his biomechanical opinion on three studies of the biomechanics of what people typically do when they are falling from a standing position. 

    Further, Nobilini viewed twenty-six YouTube videos in which the occupants put their arms out in all-terrain vehicle rollovers and a safety video by Polaris Industries, a BRP competitor, in which the Polaris representative confirmed that “[s]ometimes the natural response is to put your hand out, like you’re falling.” Nobilini also reviewed after-market products, including arm and wrist restraints, designed to restrain users of such vehicles from extending their arms outside the roll cage in the event of a rollover.

    The Court held that Nobilini has presented a reliable basis for his conclusions that Ratcliffe’s rollover accident was analogous to a fall, and, according to academic studies of the biomechanical response to falling, that a person’s natural response is to extend his or her arm to break a fall. Further, based on cumulative evidence, Nobilini articulates a reasonable basis for his opinions that the UTV industry generally was aware of the risk presented by this natural human response, that BRP specifically was aware of this risk, and that the UTV industry had developed safety features to mitigate this risk.

    Held

    The Court has concluded that Robert Nobilini’s proposed testimony meets the requisite “threshold of reliability,” and therefore it “should be presented to a jury and ‘tested by the adversary process—[by] competing expert testimony and active cross examination.’”

    Therefore, the Court dismissed without prejudice Defendant BRP’s motion in limine to exclude the opinions of Robert J. Nobilini.

    Key Takeaway:

    BRP averred that “at its core, all of Nobilini’s opinions flow from one untested and demonstrably false premise—that belted and restrained vehicle occupants instinctively reach out in rollovers.” BRP pointed out that Nobilini has “never done a scientific study of this question” and asserted that his opinion “runs counter to published literature directly on point.”

    However, Nobilini articulates a reasonable basis for his opinions that the UTV industry generally was aware of the risk presented by this natural human response, that BRP specifically was aware of this risk, and that the UTV industry had developed safety features to mitigate this risk.

    Case Details:

    Case Caption: Ratcliffe v. BRP United States, Inc.
    Docket Number: 1:20cv234
    Court: United States District Court for the District of Maine
    Order Date: November 05, 2024
  • Economics Expert Witness’ Testimony Admitted Due to Her Significant Experience in Market and Risk Analysis

    Economics Expert Witness’ Testimony Admitted Due to Her Significant Experience in Market and Risk Analysis

    Plaintiff Securities and Exchange Commission (“SEC”) charged that Defendant Matthew Panuwat engaged in insider trading in violation of Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 (the “Exchange Act”), by using his insider knowledge about Medivation, Inc.’s plan to announce an upcoming merger to make leveraged, short-term trades in Incyte Corporation (“Incyte”) call options.

    Following a one-week jury trial, the jury returned a verdict in the SEC’s favor. Panuwat, subsequently, renewed his motion for judgment as a matter of law and, in the alternative, moved for a new trial. 

    Panuwat argued that a new trial is warranted because the Court “erred by allowing Chyhe Becker to testify as an expert, and then compounded the error by allowing her to introduce hearsay testimony.”

    Economics Expert Witness

    Chyhe Becker is currently the Deputy Chief Economist and Deputy Director of the Division of Economic and Risk Analysis at the U.S. Securities and Exchange Commission. In her role, she leads a division of approximately 200 economists, statisticians, and data scientists who integrate financial economics and data analytics to support the SEC’s policy, rule-making, enforcement, and examination activities.

    Becker joined the Securities and Exchange Commission in March 2008, leading the Office of Litigation Economics until May 2018. She was previously a Principal with Chicago Partners LLC, where she specialized in securities litigation. Prior to Chicago Partners, she was a Principal with the Economic Consulting group at Deloitte Financial Advisory Services LLP where she provided expert testimony and analysis in securities class action matters as well as contract disputes. She received an M.B.A. and Ph.D. in Financial Economics from The University of Chicago Graduate School of Business, and a B.A. in Psychology from Yale University. Her research has been published in the Journal of Financial Intermediation and she taught corporate finance at The University of Chicago Graduate School of Business.

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

    Discussion by the Court

    The Court denied Panuwat’s motion in limine to exclude Becker’s testimony. Panuwat asserted then and now that Becker was unqualified to opine about mergers and acquisitions in the biopharmaceutical industry because she “lacked necessary expert qualifications, used unreliable methodologies, and impermissibly relied on hearsay to prepare her report.” But Becker had significant experience in market and risk analysis, and her opinions on how the market would perceive Medivation and Incyte’s stock prices in relation to one another (which was her key area of testimony) did not require specific biopharmaceutical knowledge.

    Panuwat contended that “three specific errors” occurred at trial with respect to Becker. The Court addressed each piece of challenged testimony.

    Confounding News

    The first error, Panuwat argued, occurred when the SEC “violated the Court’s ruling that Becker could testify about analyst reports as relevant to the existence of confounding news … by introducing analyst reports related to a wholly separate issue.” He said that the SEC “in fact introduced no analyst reports as relevant to Becker’s confounding news analysis and introduced the hearsay opinions of three analysts solely in support of Becker’s claim that the so-called economic phenomenon of a spillover effect . . . was relevant to the biopharma industry.”

    Panuwat believed that Becker adopted the contents of three article exhibits without conducting any independent analysis. Becker’s testimony at trial suggested that she relied on hearsay opinions asserted in analyst reports to confirm her opinions, not for their truth.

    Contrary to Panuwat’s assertion that Becker “adopted the contents of [these exhibits] …without conducting any independent analysis,” the Court held that her testimony showed that she had bases for her own opinions on spillover effects in the market.

    She stated that there was peer-reviewed research on the idea of spillover effects, explained why news of a merger would lead to a spillover effect, and why market observers would have expected Incyte’s stock price reaction to Medivation’s merger news, using exhibits. She went on to explain the other things she did to determine whether, in her expert opinion, spillover effects would have affected Incyte’s stock price.  At no point did Becker testify that her opinion on spillover effects was based on the at-issue article exhibits. The Court held that her testimony about confounding news was proper and complied with the Court’s limiting order.

    Limiting Instruction

    Panuwat argued that “even if these hearsay opinions were relevantly admitted to explain Becker’s conclusions on confounding news, the Court erred by failing to issue the required limiting instruction.” The judge, William H. Orrick, instructed the jury generally, several times, that news articles were not admitted for their truth, but only for the “fact that this news was out, such as it is,” or to show “what market observers were saying.”

    Cherry Picked Statements

    Panuwat also contended that Becker’s opinions relied on “cherry-picked results” from the outset. He posits that her opinion that “market observers would expect Incyte’s stock price to increase” on announcement of Medivation’s merger was not based on objective criteria, but was instead result-oriented. He said that her explanation for how she reached her conclusions was prejudicial because “the jury lacked the skillset necessary to properly evaluate the unreliability of her methods.”

    When asked “how she identified” the event studies she used, Becker stated that “what I looked for was were there times when pretty much the same thing had happened in the past . . . and when I say the same thing, I mean the same thing as Medivation’s August 22 merger announcement, and what I’m looking to see is how did Incyte’s stock price react to those prior events that are similar.” She even prepared a demonstrative to help explain what she meant.

    Becker explained that she found two prior similar events that she used as event studies. One was a prior announcement that Medivation was a takeover target, the second was a rumor that another company that was “similar” to Medivation (in that it was a biopharmaceutical company focused on oncology drugs) was also a takeover target.

    The Court held that Becker provided the jury with an explanation for why she chose the event studies she did. Panuwat had the opportunity to cross-examine her; his argument that they were cherry-picked is conclusory. As for his argument that the jury “lacked the skillset necessary” to determine whether Becker’s opinion was reliable, Panuwat provides no evidence or reason in support of this position.

    Held

    As a result, the Court denied the Defendant’s motion for judgment as a matter of law and also denied his motion for a new trial.

    Key Takeaway:

    The Court denied Panuwat’s motion in limine filed against admitting Becker’s testimony. When Panuwat argued that a new trial is warranted because the Court erred by allowing Becker to testify as an expert, the Court held that Becker provided the jury with an explanation for why she chose the event studies she did. Panuwat had the opportunity to cross-examine her; his argument that they were cherry-picked is conclusory.

    She stated that there was peer-reviewed research on the idea of spillover effects, explained why news of a merger would lead to a spillover effect, and why market observers would have expected Incyte’s stock price reaction to Medivation’s merger news, using exhibits. She went on to explain the other things she did to determine whether, in her expert opinion, spillover effects would have affected Incyte’s stock price.

    Case Details:

    Case Caption: Securities And Exchange Commission V. Panuwat
    Docket Number: 3:21cv6322
    Court: United States District Court, California Northern
    Order Date: September 9, 2024