Defendant Michael Johnson is charged with the following: unlawful imprisonment, assault of a domestic partner by strangulation and suffocation, interstate domestic violence, witness tampering, and assault.
Johnson claimed that the Government has not filed a notice to call Holly Rosen, provided her curriculum vitae, a statement of her expected testimony, or the basis and methodology for her opinion. Johnson argued that, in any event, both Holly Rosen and Kelly Berishaj’s testimony is more prejudicial than probative, and therefore should be excluded under Federal Rule of Evidence, and unduly encroaches on the jury’s function to determine credibility issues.
Social Work Expert Witness
Holly Rosen has experience as an expert or opinion witness for family and criminal cases involving domestic violence, sexual assault and human trafficking victimization cases; adult and child victims. Certified as a licensed social worker with a LMSW since 1987, she has spent over forty years working with two domestic violence, stalking and sexual assault programs.
Kelly Berishaj’s teaching, service, practice, and scholarship focus is in the specialty of forensic nursing. Berishaj has been a faculty member in the School of Nursing at Oakland University since 2007 and was instrumental in the development and implementation of the graduate forensic nursing program.
The Government did file a notice summarizing Rosen’s proposed testimony on July 12, 2022, and provided subsequent updates. As reflected, Rosen’s testimony is expected to explain the dynamics of domestic violence to the jury, such as explaining why victims may act inconsistently, including engaging in self-blame, concealing the abuse from others, reconciling with the abuser, delay reporting abuse, and staying with the abuser. Rosen also will testify regarding batterer tactics. Rosen will not opine on whether the victim in this case, C.J. is a victim of domestic violence.
To the extent Johnson intends to challenge the veracity of C.J.’s testimony based on any of these typical victim behaviors—as happened at the initial trial—the Court held that Rosen’s testimony is relevant and not unduly prejudicial. Such testimony, as the Government sets out in its response brief, is routinely admitted in trials involving domestic violence, including in Johnson’s first trial here. If, however, Johnson did not attack the veracity of her testimony through this manner, the Court may conclude that Rosen’s testimony is not relevant.
At this time, however, the Court is denying Johnson’s motion to preclude this testimony.
Kelly Berishaj
The Government is planning to present Berishaj as an expert in forensic nursing to testify regarding strangulation and strangulation injuries. She will explain to the jury such things as what strangulation is, the methods of strangulation, and the difference between suffocation and strangulation. The Court held that this evidence is relevant, as Johnson is charged with inter alia strangulation and suffocation of C.J. In conclusion, It is not unduly prejudicial.
Held
The Court is denied Michael Johnson’s motion to preclude the Government’s expert witnesses, Holly Rosen and Kelly Berishaj from testifying at trial.
Key Takeaway:
If the case involves domestic violence, testimony about the dynamics of domestic violence to the jury, such as explaining why victims may act inconsistently, including engaging in self-blame, concealing the abuse from others, reconciling with the abuser, delay reporting abuse, and staying with the abuser is relevant and not unduly prejudicial. So is testimony explaining what strangulation is, the methods of strangulation, and the difference between suffocation and strangulation.
Case Details:
Case Caption:
United States of America v. Johnson
Docket Number:
1:18cr20794
Court:
United States District Court for the Eastern District of Michigan, Southern Division
Plaintiff Towanda R. Futrell filed this personal injury action on August 28, 2023. The action arises from a motor vehicle accident on Interstate 64 on December 16, 2022, when a tractor-trailer owned by AV Leasing, LLC, leased by Triton Logistics, Inc., and driven by Daniel Cramer, collided with a bus on which Futrell was a passenger.
Pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure, on May 28, 2024, Futrell disclosed Dallas Lea, II, M.D. (“Dr. Lea”), as an expert witness in the field of orthopedic surgery who may be called to testify at trial. Futrell disclosed that Lea was expected to testify to: (a) Futrell’s injuries, including a broken right ankle, sprained left ankle, broken eye socket, and broken left jaw; (b) Futrell’s ankle surgeries; (c) Futrell’s “extensive physical medicine and rehabilitation”; and (d) his opinion that Futrell’s injuries, medical treatment, hospitalizations, “past and future pain and suffering, past and future medical expenses and medical costs and life care medical costs, and economic or non-economic related damages” are “a proximate cause of Defendant Daniel Cramer’s negligence.”
Futrell provided Defendants with a copy of Lea’s curriculum vitae. On or before July 9, 2024, Futrell also provided Defendants with Lea’s expert report-a life care plan for Futrell. The life care plan outlines Futrell’s treatment following the accident, Lea’s opinion that Futrell “will have chronic symptoms and residual disabilities resulting from the accident,” and a table containing Lea’s recommendations for Futrell’s “current and future care needs.”
On September 17, 2024, Defendants filed the pending motion in limine to exclude Lea’s opinion because he was not properly designated as an expert in life care planning and the opinions in his life care plan lack the requisite foundation.
Lea was not properly designated as an expert in life care planning
First, the Defendants asserted that Lea was not properly designated as an expert in life care planning. The Defendants noted that Lea was designated as an expert in orthopedic surgery who was expected to testify about Futrell’s injuries, Futrell’s treatment, and his opinion that Futrell’s injuries, treatment, past and future pain and suffering, past and future medical expenses, and life care costs were proximately caused by Defendant Daniel Cramer’s negligence.
Lea’s opinions lack the proper foundation and are speculative
Next, Defendants argued that Lea’s opinions lacked the proper foundation and were speculative. Lea never treated Futrell and did not interview her or her treating physicians prior to developing the life care plan. The life care plan was drafted based on Lea’s review of Futrell’s medical records.
Physical Medicine & Rehabilitation Expert Witness
Dallas Alexander Lea, II M.D. is an internationally recognized spinal cord injury physician, fellowship-trained, and double-boarded in Physical Medicine and Rehabilitation (PM&R) and Spinal Cord Injury (SCI) Medicine.
Errors in the Rule 26(a)(2) disclosure are harmless as Dr. Lea’s CV, life care plan, and deposition clarify his expertise and outline his proposed expert testimony
Futrell asserted that Defendants were provided with a copy of Lea’s CV, which put them on notice that Lea was a life care planner, board certified in physical medicine and rehabilitation, and Defendants were provided with his life care plan on July 5, 2024. During Lea’s deposition, Futrell’s counsel clarified that the designation of Lea as an orthopedic surgeon was due to a “typographical error.” Lea testified that he was not an orthopedic surgeon, but a specialist in spinal cord injury and in physical medicine and rehabilitation. Lea explained that he would not be testifying about causation or negligence, rather he would testify to Futrell’s “injuries and future care and needs,” and that he was asked to “review records, review the case, and produce a life care plan.”
The Court found that Futrell’s failure to identify Lea as an expert to testify about Futrell’s life care plan in the Rule 26(a)(2) disclosure served on May 28, 2024, was harmless. The Rule 26(a)(2) disclosure was inaccurate. Futrell’s explanation for the inaccurate disclosure—that it was a “typographical error”—is less than satisfactory.The inaccuracy also goes beyond simply misstating that Lea is an orthopedic surgeon, by wrongfully disclosing that Lea will testify about the cause of Futrell’s injuries. The disclosure did, however, include Lea’s expected testimony about Plaintiffs future medical care and expected costs over her lifetime. The provision of Lea’s CV and life care plan clarified his expertise and proposed testimony and Defendants were further able to clarify this with his deposition taken September 6, 2024.
Lea’s proposed testimony concerning Futrell’s life care plan is based on his medical expertise and will be helpful to a jury
Defendants also challenged several of the line items in Lea’s life care plan table, specifically house cleaning, ophthalmologist evaluations, an ear, nose, and throat evaluation, yearly visits to her primary care physician, and psychological counseling.
Defendants argued Lea did not know whether Futrell has familial support to take care of house cleaning or to what extent she has suffered emotional injuries and needs counseling. They concluded that the life care plan is speculative and not tailored to Futrell’s unique needs, and Futrell “provides no indication why Lea’s life care plan is more plausible than other possibilities of what she will require in the future.”
Lea explained that: (1) Futrell’s chronic symptoms and residual disabilities “were evident” in her medical records (2) the monthly housecleaning expense is for deep cleaning (3) the ophthalmologist evaluation and ear, nose, and throat evaluation were a precaution due to her jaw fracture and broken eye socket (4) the yearly visit to her primary care physician would be in addition to a routine yearly physical and would be necessary for pain management and pain management medications and (5) psychological counseling was included because of the mention of Futrell’s anxiety in the medical record.
The Court held that Lea reviewed and summarized Futrell’s past treatment, current treatment regimen, and future treatment recommended by her physicians. Lea then developed a life care plan projecting Futrell’s future costs based on this review. A certain amount of speculation is inherent in a life care plan that projects what will be needed in the future and hinges on future events. Permitting cross-examination regarding the facts and data Lea relied on to arrive at the future costs will allow the fact finder to determine the appropriate weight to assign to Lea’s testimony.
Held
The Court held that permitting Lea to testify about the life care plan he outlined for Futrell would not disrupt the trial. Lea, however, will not be permitted to testify about the cause of Futrell’s injuries and his testimony will be limited to the opinions outlined in his life care plan.
The Court found that Lea is qualified to testify as an expert witness and he is proposing to testify to relevant medical knowledge that will assist the trier of fact in understanding a fact in issue. Nor does the Court find that the probative value of such testimony is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The Court found that Defendants’ concerns about the reliability of Lea’s testimony may be properly raised during cross-examination, but they are insufficient to persuade the Court to exclude Lea.
The Court denied Defendants’ motion in limine to exclude the expert opinions of Dallas Lea, II, M.D.
Key Takeaways:
The Rule 26(a)(2) disclosure was inaccurate. Futrell’s explanation for the inaccurate disclosure—that it was a “typographical error”—is less than satisfactory.The inaccuracy also goes beyond simply misstating that Lea is an orthopedic surgeon, by wrongfully disclosing that Lea will testify about the cause of Futrell’s injuries.
A certain amount of speculation is inherent in a life care plan that projects what will be needed in the future and hinges on future events.
Case Details:
Case Caption:
Futtrell V. Av Leasing, LLC
Docket Number:
4:23cv118
Court:
United States District Court for the Eastern District of Virginia, Newport News Division
Plaintiff Wireless Alliance, LLC (“Plaintiff” or “Wireless Alliance”) brought allegations against Defendants AT&T Mobility LLC, AT&T Services, Inc., and AT&T Corp. (“Defendants” or “AT&T”). Wireless Alliance asserted that AT&T infringed on several United States patents concerning enhancements to cellular networking systems. The patents in question include United States Patent No. 9,144,106 (the “‘106 patent”), Patent No. 9,565,662 (the “‘662 patent”), and Patent No. 10,045,383 (the “‘383 patent”), collectively referred to as the “Asserted Patents.” Wireless Alliance holds exclusive licensing rights for the ‘106 and ‘662 patents and owns the ‘383 patent through assignment.
Defendants filed a motion to strike the testimony of Wireless Alliance’s damages expert, Jim W. Bergman.
Intellectual Property Expert Witness
Jim W. Bergman, the Founder and President of Bergman Consulting, held a B.A. in Economics and an M.B.A. from the University of California at Irvine, along with a Chartered Financial Analyst (CFA) designation. He pursued a Master of Computer Science degree from the Georgia Institute of Technology.
Before establishing Bergman Consulting in 2017, he led Conway MacKenzie’s national intellectual property litigation group and worked as an in-house economic consultant for various national law firms for over a decade. With nearly ten years of experience in the information technology sector, Bergman obtained multiple industry-recognized certifications in hardware, software, and networking.
He specialized in intellectual property, commercial, and bankruptcy litigation, serving as a testifying or consulting expert in areas such as business litigation, patent and technology issues, trade secrets, trademarks, securities litigation, business valuation, bankruptcy reorganization, solvency, and general damages.
Defendants contended that Bergman improperly switched royalty bases by deriving a per-patent family device rate for Ericsson’s portfolio and applying it to the service revenues of the carriers. They argued that this methodology contradicted Federal Circuit precedent, as the royalty should depend on whether the Defendant manufactured the device or was the end user. The carriers maintained that no carrier would pay a royalty based on Ericsson’s cellphone or infrastructure rates based on the carrier subscriber revenue. However, the Court found that Defendants did not provide sufficient grounds to strike Bergman’s report under Rule 702 and Daubert. The Court determined that Defendants’ concerns highlighted credibility disputes rather than issues of reliability.
B. Entire Market Value Rule and Apportionment
Defendants further sought to strike Bergman’s report, alleging that he improperly used the entirety of their subscriber revenue, raising concerns that the Plaintiff aimed to present large revenue numbers to influence the jury’s perception of damages. However, the Parties had already agreed to a motion in limine addressing this concern. Defendants also argued that Bergman misapplied the Entire Market Value Rule (EMVR) without adequate support. In response, the Plaintiff asserted that Bergman conducted multiple patent- and Defendant-specific analyses, supported by technical opinions, to calculate apportionment factors for the incremental value of the infringing features over non-infringing features. And based on that, apportioned the revenue from the allegedly infringing features and thus did not implicate the EMVR. The Court was satisfied that Bergman’s approach did not invoke the EMVR. What remains is a fact issue.
C. Unreliable Patent Rates
Additionally, Defendants argued that Bergman made two methodological errors: first, by improperly applying essentiality studies of declared patents to charted patent families, and second, by basing his reliance on a certain claim that the top 10% of patents in a portfolio drive 84% of the value. They also pointed out inconsistent statements from the Plaintiff’s other expert. In contrast, Plaintiff contested Defendants’ view, asserting that Bergman used the claim in question only in the final step to differentiate apportionment rates between high-value and lower-value patents. The Court allowed Defendants to cross-examine Bergman regarding potentially inconsistent statements but found no basis to strike his testimony.
Legal Standards
An expert witness may provide opinion testimony if “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.”
Importantly, in a jury trial setting, the Court’s role under Daubert is not to weigh the expert testimony to the point of supplanting the jury’s fact-finding role; instead, the Court’s role is limited to that of a gatekeeper, ensuring that the evidence in dispute is at least sufficiently reliable and relevant to the issue before the jury that it is appropriate for the jury’s consideration
Held
The Court denied Defendants’ motion to strike the testimony of Plaintiff Wireless Alliance LLC’s damages expert, Jim W. Bergman.
Key Takeaways:
The Court upheld Bergman’s methodology when Defendants argued he improperly switched royalty bases, declaring it to be insufficient grounds for exclusion. It rejected concerns that his use of subscriber revenue aimed to unduly influence the jury’s perception of damages, noting this issue had been addressed in a prior motion in limine. While Defendants claimed Bergman misapplied the Entire Market Value Rule (EMVR), the Court determined he conducted adequate analyses to support his calculation of the apportionment factors.
Please refer to the blog previously published about this case:
This case deals with the indictment of Derik Carothers. He is charged with three offenses. At Count One, the grand jury charged him with conspiracy to distribute and possess with intent to distribute a quantity of cocaine base, in the form commonly known as crack, a Schedule II controlled substance. At Count Two, the grand jury charged him with possession of a firearm in furtherance of a drug trafficking crime. And at Count Four, the grand jury charged him with possession of a firearm and ammunition by a convicted felon.
On October 11, 2024, by email communication, Carothers, through counsel, informed the Government that he intended to call the Chief Technical Officer of PATC Tech (a forensic investigation company), Glenn K. Bard (“Mr. Bard”), as an expert witness with experience in computer and cell phone forensics.
As of 2:36 PM on October 15, 2024, the Government had yet to receive Carothers’s expert disclosure of Bard, and thus the Government filed a Motion to Compel.
In Carothers’s response to the motion to compel, filed on October 16, 2024, he stated that “PATC informed counsel yesterday that … Bard is now unavailable to testify next week. In lieu of Bard’s testimony, Carothers expects to call Lucas… With respect to Lucas, Carothers provided the government with all of the expert disclosures required by Rule 16 today, October 16, 2024.”
The Government filed a motion to have Defendant Derik Carothers’s proposed expert, Donald Scott Lucas, excluded pursuant to Federal Rule of Criminal Procedure 16 because Carothers’s notice of expert testimony is (i) untimely and (ii) inadequate.
Law Enforcement Expert Witness
Donald Scott Lucas is a Forensic Examiner & Instructor with PATCtech and a retired Pennsylvania State Trooper. He has a background in law enforcement, specifically in regard to digital forensics and computer crimes. He has testified in federal, state and military courts regarding computer investigations and digital forensics on numerous occasions.
Regarding disclosure’s statement of opinions that the Defendant will elicit from Lucas, which Rule 16 requires the disclosure of, Carothers only provided the following:
“Lucas will describe how he analyzed the forensic extractions of the cellular telephones seized in this case and will also describe data that can be recovered from the phones as well as data recovered from the seized phones. Specifically, he will testify about his analysis of the data contained on the phones and the methods he used to obtain any such data. He is expected to testify about the results of his review of the extraction of the phones for relevant images taken by the phones and relevant text messages sent and received by the phones (i.e., texts containing code names for controlled substances as identified by Agent Springmeyer and Josh Martin).”
Court’s Decision
The Court found that Carothers’s notice of a new expert and the disclosure of that expert, given three business days before the start of trial, was not provided “sufficiently before trial to provide a fair opportunity for the government to meet the Defendant’s evidence.”
Further, the Court found that the disclosure lacks “a complete statement of all opinions that the Defendant will elicit form the witness” and “the bases and reasons for them.”
The Court determined that the appropriate remedy is to grant the Government’s continuance request and order Carothers to re-file a revised disclosure regarding Lucas’ proposed testimony.
The Court recognized that Bard’s unavailability was not inherently Carothers’s fault. Carothers had not acted intentionally or in bad faith. Moreover, the Court did not find that the Government will be prejudiced by the Court granting its alternative request for a continuance. Indeed, this remedy will permit the Government the time necessary to prepare for Lucas’ testimony, while also avoiding the exclusion of one of Carothers’s two proposed expert witnesses.
Held
The Court granted in part and denied in part the Government’s motion to exclude Defendant’s testimony or, in the alternative, for a continuance.
Key Takeaway:
The Court found that the disclosure lacks “a complete statement of all opinions that the Defendant will elicit form the witness” and “the bases and reasons for them.” However, the Court did not find that the Government will be prejudiced by the Court granting the alternative request for a continuance because Carothers has not acted intentionally or in bad faith. Indeed, this remedy will permit the Government the time necessary to prepare for Lucas’ testimony, while also avoiding the exclusion of one of Carothers’s two proposed expert witnesses.
Case Details:
Case Caption:
United States V. Carothers
Docket Number:
3:20cr31
Court:
United States District Court, Pennsylvania Western
Plaintiff I-Mab Biopharma (“I-Mab” or “Plaintiff”) brought trade secret misappropriation claims against Defendants Inhibrx, Inc. (“Inhibrx”) and Brendan Eckelman (“Dr. Eckelman” and collectively with Inhibrx, “Defendants”).
Plaintiff asserted that Defendants misappropriated nine trade secrets (that correspond to molecules designed to treat cancer) that are referred to herein as Trade Secret 1, Trade Secret 2, Trade Secret 4, Trade Secret 5, Trade Secret 6, Trade Secret 7, Trade Secret 8, Trade Secret 9 and Trade Secret 10.
Plaintiff sought to exclude three categories of Defendants’ damages expert Dr. Richard Manning‘s opinions.
Economics Expert Witness
Dr. Richard Manning’s expertise includes economic valuation and damages, intellectual property, breach of contract, fraud, and other commercial litigation. He provides testimony and consultation in all these areas and on securities litigation, tax, antitrust and competition, and public policy.
A. Manning’s reliance on the “Book of Wisdom” doctrine
Under the reasonable royalty framework of damages permitted under the Defend Trade Secrets Act, parties rely upon a hypothetical negotiation analysis to “attempt to ascertain the royalty upon which the parties would have agreed had they successfully negotiated an agreement just before [misappropriation] began.” The hypothetical negotiation must attempt to “recreate the ex ante licensing negotiation scenario and to describe the resulting agreement.”
However, the analysis “permits and often requires a Court to look to events and facts that occurred thereafter and that could not have been known to or predicted by the hypothesized negotiators.” Facts that post-date the hypothetical negotiation may sometimes be relied upon in a reasonable royalty analysis as part of the “Book of Wisdom.”
Plaintiff asserted that Manning’s opinions based on events that occurred years after the date of the hypothetical negotiation in November 2021 should be excluded because he improperly utilizes the Book of Wisdom. According to Plaintiff, while the Book of Wisdom would permit an expert to rely on post-negotiation evidence to demonstrate a party’s actual state of mind in November 2021, Manning does not rely on such evidence in this way—and instead improperly uses it to replace the inquiry into what the parties would have anticipated.
Plaintiff asserted that Manning improperly used the Book of Wisdom with respect to two types of post-negotiation evidence: (1) evidence regarding Inhibrx’s decision to terminate INBRX-105 in January 2024 (“opinions relating to INBRX-105’s termination”) and (2) changes at I-Mab that took place in 2022 through 2024 (“opinions relating to later-occurring events at I-Mab”).
1. Opinions relating to INBRX-105’s termination
Parties’ Position
Defendants argued that it would be nonsensical to use I-Mab’s information to modify INBRX-105 when doing so would require starting over on manufacturing and toxicity development to support an entirely new IND application and filing that new application with the FDA.
The Court refused to exclude Manning’s opinions relating to INBRX-105’s termination for two main reasons. First, as Defendants point out, it was Plaintiff’s damages expert who initially opined about INBRX-105’s termination, stating that it “does not change the parties’ perspectives and negotiating positions as of a hypothetical negotiation in November 2021.” As a general matter, it is of course appropriate for an expert’s rebuttal report to respond to another expert’s opinions. And Manning does just that in at least certain of the challenged portions of his report.
Beyond that, Plaintiff’s argument is that at the time of the hypothetical negotiation, Defendants viewed INBRX-105 “as having significant value” and therefore the decision to terminate the program in January 2024 does not reflect what the parties were thinking in November 2021 (and thus Manning’s related opinions must be excluded). But Defendants are of course permitted to point to evidence to rebut the notion that they viewed INBRX-105 as having significant value in November 2021. Indeed, Defendants point out that Plaintiff’s own experts opine that leading up to the hypothetical negotiation, Inhibrx was concerned about INBRX-105’s likelihood of success.
Court’s Decision
In that vein, Defendants argued that Manning’s opinions relating to INBRX-105’s termination are consistent with Defendants’ views in November 2021 that there was much uncertainty regarding the development of INBRX-105. The Court concluded that it was not an improper use of the Book of Wisdom. In the end, it will be up to the jury to ultimately decide, based on all of the evidence, how Defendants viewed the INBRX-105 program at the time of the hypothetical negotiation.
Opinions relating to later occurring events at I-Mab
Plaintiff also moved to exclude Manning’s reliance on changes at I-Mab that occurred after the November 2021 hypothetical negotiation, including its decreasing stock price in 2022, termination of its partnership with AbbVie in September 2023 and I-Mab’s restructuring in April 2024; Plaintiff argued that this was improper use of the Book of Wisdom.
The two paragraphs at issue in Manning’s rebuttal report discuss I-Mab’s termination of its partnership with AbbVie and related decreasing stock price, and they are clearly responding to points made by Plaintiff’s experts regarding I-Mab’s partnership with AbbVie. Similarly, the two paragraphs at issue in Manning’s supplemental report relate to I-Mab’s restructuring and respond to points made by Plaintiff’s damages expert regarding this event.
The Court, once again, held that it is proper for Manning to respond to opinions raised by Plaintiff’s experts.
Manning’s opinion regarding “actual damages”
The DTSA provides that damages for misappropriation may be quantified in two ways: (1) damages for actual loss plus unjust enrichment or (2) a reasonable royalty.
Manning opined that he cannot rule out the conclusion that Plaintiff’s “actual damages” are zero (the “zero damages opinion”). Plaintiff argued that Manning’s zero damages opinion should be excluded as irrelevant because Plaintiff’s damages claims are not based on actual loss, and even if Plaintiff’s actual damages were zero, Plaintiff would still be entitled to a reasonable royalty.
The Court agrees with Plaintiff that Defendants ignored the “actual words” that Manning used, as he did not opine in the zero damages opinion that Plaintiff’s “reasonable royalty damages” are zero (nor do Defendants point to anywhere else in Manning’s report where he opined that Plaintiff’s reasonable royalty damages should be zero). Nor did Defendants explain why an opinion that Plaintiff’s “actual damages . . . are zero” should be interpreted to actually mean that Plaintiff’s “reasonable royalty damages are zero.”
Moreover, the Court agreed with Plaintiff that Manning does not seem to provide any facts or analysis in support of the zero damages opinion.
Held
Plaintiff sought to exclude three categories of Dr. Richard Manning’s opinions. The third category was about Manning’s alternative damages theory but the Court reserved decision on the third category until it resolved Plaintiff’s motion to exclude the opinions of Roland Newman. One of Plaintiff’s arguments is that Manning’s alternative damages theory should be excluded because Manning relied only on a conversation with Newman in support. The Court granted this portion of Plaintiff’s Daubert motion regarding Manning’s opinions.
In conclusion, the Court granted in part and denied in part the Plaintiff’s motion to exclude Manning’s opinions.
Key Takeaway:
Manning did not improperly utilizes the Book of Wisdom. Also, it is of course appropriate for an expert’s rebuttal report to respond to another expert’s opinions. And Manning does just that in at least certain of the challenged portions of his report. However, Manning’s zero damages opinion was excluded as the Court agreed with Plaintiff that Manning does not seem to provide any facts or analysis in support of the zero damages opinion.
Over sixty Plaintiffs alleged that Defendant Lockheed Martin Corporation’s weapons manufacturing facility in Orlando released toxic chemicals that contaminated the air, soil, and groundwater, leading to various injuries among the Plaintiffs. The instant case formed a part of a group of related toxic tort cases.
Following a complex history during the dispositive motion stage, the Court resolved the general causation issues. It then shifted focus to specific causation for the limited number of remaining Plaintiffs.
All remaining Plaintiffs relied on environmental engineering expert witness, Ranajit Sahu’s testimony, which was central to their specific causation theory. He used air modeling data to demonstrate that Lockheed’s facility emitted five toxic chemicals and the Plaintiffs were exposed to these chemicals while in a nearby building.
In response, Lockheed sought to exclude Sahu’s testimony, arguing that his methodology was unreliable. The Plaintiffs opposed this motion, asserting the validity of Sahu’s methods.
Environmental Engineering Expert Witness
Ranajit Sahu has over twenty-three years of experience in the fields of environmental, mechanical, and chemical engineering. His expertise includes program and project management services, design and specification of pollution control equipment, soil and groundwater remediation, and combustion engineering evaluations. He conducted energy studies and addressed multimedia environmental regulatory compliance, working with statutes and regulations such as the Federal Clean Air Act and its amendments, the Clean Water Act, TSCA, RCRA, CERCLA, SARA, OSHA, and NEPA, along with various related state statutes.
Sahu is also skilled in transportation air quality impact analysis, multimedia compliance audits, and multimedia permitting, which includes air quality NSR/PSD permitting, Title V permitting, and NPDES permitting for industrial and stormwater discharges. He has conducted multimedia/multi-pathway human health risk assessments for toxic substances, air dispersion modeling, and regulatory strategy development and support, including the negotiation of consent agreements and orders.
Sahu relies on AERMOD, a recognized model for estimating air concentrations based on emission rates provided by the modeler. He modeled concentrations using the “actual emission rates” for each chemical, sourced from Lockheed’s chemical management system (CMS) reports. Subsequently, he compared these results to the expected background levels of each chemical in Florida. He used EPA data to assess the relative exposures of individuals in the Plaintiffs’ building against the general state population. Sahu concluded that the Plaintiffs’ exposures significantly exceeded the highest background levels.
Lockheed’s Concerns
Lockheed raised several objections to Sahu’s methodology. They claimed that the “actual emission rates” he used were inflated estimates, aimed at ensuring regulatory compliance rather than reflecting true emissions. To maintain its federal permit, Lockheed adopted the high-end percentages of chemicals from each product’s safety data sheet (SDS). For instance, if an SDS indicated a product contained 20-25% arsenic, Lockheed assumed 25%. This resulted in inflated CMS numbers that Sahu input as “actual emission rates.” Lockheed contended that these overestimates compromised the model’s accuracy.
Lockheed also criticized Sahu’s reliance on the CMS data. They argued that the data did not factor in capture, control, and transfer efficiencies. Consequently, this led to an overestimation of actual emissions. However, Sahu defended his approach, noting that the CMS data represented what Lockheed reported to regulators.
Analysis
Sahu’s reliance on Lockheed’s reported data did not undermine his methodology’s reliability. The validity of Sahu’s methods remained intact, despite Lockheed’s claims. The Court emphasized that questions regarding the accuracy of Sahu’s data were appropriate for cross-examination rather than discrediting the overall scientific validity of his methods.
Lockheed’s additional critiques included Sahu’s focus on outdoor air concentrations and the use of EPA data. Sahu clarified that typical building filters would not capture the chemicals in question. He also explained that he used statewide EPA data to establish conservative background exposure levels. Furthermore, Sahu noted that both parties lacked knowledge of alternative local sources for emissions.
Ultimately, the Court recognized that the Eleventh Circuit allows modeling to estimate emissions. The AERMOD model, which Sahu used, has received widespread approval. Sahu articulated his rationale for the model inputs and their applications, adhering to accepted scientific standards. The Court decided that Lockheed’s objections called into question the weight of the evidence instead of its admissibility. Thus, Sahu’s methodology was sufficiently reliable to warrant presentation to the jury.
Held
The Court denied Defendant Lockheed’s motion to exclude Plaintiffs’ environmental engineering expert witness, Ranajit Sahu.
Key Takeaways:
The Court allowed the testimony of environmental engineering expert Ranajit Sahu, emphasizing the reliability of his methodology despite Lockheed’s objections. Sahu used the AERMOD model to estimate air concentrations based on emission rates from Lockheed’s chemical management system, demonstrating that Plaintiffs were exposed to toxic chemicals exceeding background levels.
The Court noted that Lockheed’s concerns regarding data accuracy and methodology did not discredit Sahu’s scientific validity. Instead, these issues were appropriate for cross-examination, reinforcing the notion that the jury, not the Court, should weigh the evidence. Thus, Sahu’s testimony was deemed reliable and relevant for the jury’s consideration.
Please refer to the blog previously published about this case:
Plaintiff Wireless Alliance, LLC (“Plaintiff” or “Wireless Alliance”) made certain allegations Defendants AT&T Mobility LLC, AT&T Services, Inc., and AT&T Corp. (“Defendants” or “AT&T”). According to Wireless Alliance, AT&T infringed the following United States patents that relate to improvements to cellular networking systems: United States Patent No. 9,144,106 (the “’106 patent”), 9,565,662 (the “’662 patent”) and 10,045,383 (the “’383 patent”) (collectively, the “Asserted Patents”). Wireless Alliance is the exclusive licensee of the ’106 patent and the ’662 patent, and is the owner by assignment of the ’383 patent.
Plaintiff argued that Defendants inappropriately used Craig Bishop to establish the public availability of 3GPP documents despite him not having the “specialized or personal knowledge about public availability of 3GPP documents” because he is “a layperson with no connection to the actual documents.”
Telecommunications Expert Witness
Craig Bishop has over 30 years of experience in the telecommunications industry with an extensive knowledge of 3GPP and ETSI specifications and procedures including document handling and publication practices.
The crux of Plaintiff’s argument is that Bishop’s “opinion is based on nothing more than his subjective, speculative belief that the information displayed on 3GPP’s website is accurate and indicates when the documents were first made publicly available.”
WA then attempted to equate Defendants’ reliance on Bishop’s report with relying on unauthenticated printouts from the internet by using a declaration from a third party. Defendants countered that this Court had already determined the reliability of Bishop’s opinions regarding 3GPP availability.
Defendants also argued that Bishop is qualified to opine on 3GPP publication dates based on his extensive experience with 3GPP and ETSI.
Legal Standards
An expert witness may provide opinion testimony if “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.”
Importantly, in a jury trial setting, the Court’s role under Daubert is not to weigh the expert testimony to the point of supplanting the jury’s fact-finding role; instead, the Court’s role is limited to that of a gatekeeper, ensuring that the evidence in dispute is at least sufficiently reliable and relevant to the issue before the jury that it is appropriate for the jury’s consideration.
Application
The Court found that Plaintiff’s arguments demonstrated disputes regarding credibility, as opposed to reliability, and accordingly can be properly addressed through vigorous cross-examination and presentation of contrary evidence.
Held
The Court denied the Plaintiff’s motion to strike the testimony of Defendants’ expert Craig Bishop.
Key Takeaway:
When Plaintiff contended that Bishop has no specialized or personal knowledge about public availability of 3GPP documents, the Court refused to exclude Bishop’s testimony on that basis because Plaintiff’s arguments consisted of credibility attacks.
Defendant, New Prime, Inc., is a commercial trucking company, and its drivers are required to have a Commercial Driver’s License (“CDL”). It designates its CDL-licensed drivers as A seat, B seat, and C seat. B and C seat drivers are paired with an A seat driver until they attain enough experience to be an A seat driver and are paid less than A seat drivers.
Separately, Defendant created a program whereby individuals could receive the training necessary to obtain a CDL. This program has been referred to as the Prime Student Driver program, or “PSD program,” and participants have been referred to as “PSDs.” PSDs earn a Commercial Learner’s Permit (“CLP”) as part of that training, and at least some of those with a CLP drive a truck carrying freight for Defendant. Such PSDs are designated “D seat drivers” and must be accompanied by an A seat driver. PSDs are not paid, even when performing duties as a D seat driver.
Plaintiff, Peter Nyachira, asserted two claims. First, he alleged the failure to pay PSDs (or, perhaps, PSDs when acting as D seat drivers) violates the Fair Labor Standards Act (the “FLSA”) and Missouri’s Minimum Wage Law (the “MMWL”). Second, he asserted the amount paid to B and C seat drivers did not meet the FLSA’s minimum wage requirement.
One of the factual issues to be resolved is how much time B and C seat drivers worked. This issue is also relevant for PSDs if it is determined they were “employees” under the FLSA and MMWL. Another issue that must be resolved is whether the amount paid to B and C seat drivers satisfied the minimum wage requirements. Plaintiff retained Liesl Fox to testify on these matters.
Statistics Expert Witness
Liesl M. Fox is a Senior Consultant and Partner at Quantitative Research Associates, a firm that provides statistical and computing consulting services, where she has been employed since 1997. She has been a statistical consultant for over twenty-five years, including conducting analyses in the fields of litigation and medical research, and has testified as an expert witness.
Fox’s estimates of the amount of time B and C seat drivers were working were called into question. To place the issue in context: drivers recorded their time in categories pursuant to the Department of Transportation’s Hours of Service (“HOS”) regulations.
The Court has already held in one of its previous rulings that the HOS categories did not correspond to time “worked” by drivers, and they therefore could not be relied on for that purpose. The Court further concluded drivers are working regardless of the HOS code that is entered and “this means that drivers engaged in multi-day trips are working 24 hours a day.”
Defendant argued Fox’s estimates did not sufficiently rely on the HOS logs. However, given the Court’s ruling, there is no basis for concluding Fox’s opinion should be excluded because she did not rely on the HOS logs more than she did.
Allocation of Time
Defendant retained its own expert, Dr. Christopher Stanton, Ph.D, to rebut Fox’s opinions and relied on his opinion to fault Fox for “assigning all time corresponding to the full duration of a trip that spans two weekly pay periods to the weekly pay period when the trip ended.”
It claimed this approach artificially inflates the number of hours worked in the second of the two weeks, creating a false impression that insufficient wages were paid for that week.
Plaintiff defended Fox’s approach by contending, essentially, that (1) Defendant’s records did not permit a different calculation method that is superior to the one she employed and (2) there is no artificial inflation of damages because Defendant pays drivers a set base amount each week.
The Court concluded that the dispute between Stanton and Fox did not affect the admissibility of Fox’s opinion. Defendant was free to cross-examine her on the issue, as well as present Stanton’s alternative calculation for the jury’s consideration.
Starting Point for Calculations
A collective action was certified under the FLSA for those claims, and a class was certified under Federal Rule of Civil Procedure 23 for the PSDs to assert an Missouri’s Minimum Wage Law claim.
The class definition for the collective action includes B, C, and D seat drivers who engaged in over-the-road training or team driving since May 9, 2020. The starting point for the Rule 23 class is also May 9, 2020. However, Fox calculated damages for the FLSA claims and the MMWL claims beginning on April 13, 2020, and May 3, 2020, respectively. Plaintiff defended this approach for the FLSA claims by arguing that if Defendant’s violation of the FLSA is willful, the statute of limitations is three years. He provides no explanation for the MMWL claim.
Defendant insists that the measure of damages is confined to the period described in the class definition. Neither party discusses the issue sufficiently to permit the Court to rule, so the Court defers ruling. Evidence of damages from before May 9, 2020, will not be permitted until the matter is resolved.
“Blank” Codes for D Seat Drivers
In addition to requiring drivers to record HOS time entries, Defendant maintained a calendaring system. Drivers are assigned various codes; for instance, “D” indicates they are under dispatch, and “A” indicates they are available for dispatch. In some instances, the calendaring system contains gaps; that is, there is not a code for every moment of every day. Fox defined an “Extended Gap Period” as one lasting 24 hours or more.
For B and C seat drivers, Fox compared the time covered by Extended Gap Periods to Defendant’s Duty Status Records; if the Duty Status Records indicated the B or C seat driver was working, Fox counted the Extended Gap Period as time for which compensation was due.
Fox treated PSDs differently. She compared the Extended Gap Period to the Duty Status record; then, if the Extended Gap Period ‘was associated with a calendar code . . . or had no calendar code, the gap remained in the analyses.’ Thus, even when confirming information was absent, Fox’s calculations assumed PSDs were working, despite neither the calendaring system nor the Duty Status records reflecting this. The Defendant argued there is no basis in the record for this assumption.
The Record establishes the calendaring system was not used for PSDs. Moreover, in her deposition, Fox conceded that 99% of the PSDs did not have any calendar codes, but she included the Extended Gap Periods because doing so is consistent with Plaintiff’s theory.
PSDs were entitled to compensation for the Extended Gap Periods
Plaintiff did not explain why PSDs were entitled to compensation for the Extended Gap Periods when (1) no available records suggested they were working during that time and (2) Extended Gap Periods were reflected in a calendaring system that is not used for PSDs. The Court concluded Fox had no basis for including Extended Gap Periods in the number of hours PSDs potentially worked, and therefore this component of her analysis must be excluded.
Orientation Time for Certain B and C Seat Drivers
Finally, Defendant argued orientation time for certain B and C seat drivers should be excluded. The Court need not consider Defendant’s argument because the Court granted Defendant summary judgment on Plaintiff’s claim regarding orientation. In other words, damage calculations for this aspect of Plaintiff’s claim were irrelevant and will not be admitted at trial.
Held
The Court granted in part, denied in part and deferred in part the Defendant’ motion to strike the expert testimony of Dr. Liesl Fox.
The Court excluded Fox’s opinions regarding (1) Extended Gap Time for D seat drivers and (2) damages incurred by B and C seat drivers related to their attendance at orientation.
Key Takeaway:
Based on Stanton’s alternative calculation, the Defendants claimed that Fox’s approach artificially inflates the number of hours worked in the second of the two weeks, creating a false impression that insufficient wages were paid for that week. However, the dispute between Stanton and Fox did not affect the admissibility of Fox’s opinion.
Fox conceded that 99% of the PSDs did not have any calendar codes, but she included the Extended Gap Periods because doing so is consistent with Plaintiff’s theory. The Court concluded Fox had no basis for including Extended Gap Periods in the number of hours PSDs potentially worked, and therefore this component of her analysis must be excluded.
This case stems from a 2022 subcontract between HBonilla (Plaintiff) and Defendant Ragle, Inc. (“Ragle”) for HBonilla to perform work for the City of Dallas. In 2023, Ragle claims it discovered that HBonilla had been overbilling for its work. After a dispute, HBonilla stopped working on the project and filed a lawsuit against Ragle and its sureties, Colonial American Casualty and Surety Company (“Colonial”) and Fidelity and Deposit Company of Maryland (“Fidelity” and, collectively with Colonial, the “Sureties”). Ragle and the Sureties in turn brought counterclaims against HBonilla for the amount they alleged was overbilled.
Shortly after, the Court issued a Scheduling Order, setting January 29, 2024, as the deadline for parties to designate experts for affirmative claims and February 28, 2024, for rebuttal experts. Unfortunately, Ragle and the Sureties’ previous counsel experienced a medical emergency in early 2024, and their current counsel appeared in April. The parties agreed to extend the deadline for rebuttal expert designations to May 20, 2024.
By that date, Ragle and the Sureties designated three experts: William Tusa, Troy Ragle, and William Rather. Both Troy Ragle and William Rather were non-retained experts. Rather served as Controller at Ragle, Inc., while Troy Ragle was the Vice President. HBonilla argued that these experts addressed Ragle and the Sureties’ affirmative claims, not just rebuttal purposes, and claimed they were improperly designated after the affirmative expert deadline. Consequently, HBonilla filed a motion to exclude the Defendants’ expert testimony on the grounds that they designated the experts after the deadline had passed.
Construction Expert Witness
William Tusa is a Senior Managing Director at FTI Consulting. He is a member of the Construction, Projects & Assets practice and is based in Houston. Tusa has extensive experience providing a wide range of construction consulting and advisory services focused on analysis and resolution of construction contract disputes.
Over Tusa’s career, he has consulted with clients on the preparation, monitoring and analysis of schedules and programs for construction projects both nationally and internationally.
Tusa has provided program advisory services to executive level leadership and construction management personnel in the areas of process improvement, performance evaluation, CPM development, change order analysis, claim preservation and prevention, cost assessment, project control (cost and schedule) implementation, contract management, dispute resolution and project close out.
In deciding whether to admit testimony from experts designated after the deadline, the Court considered four factors: (1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) the potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure any prejudice.
Experts are not timely designated and disclosed
First, the Court read through the explanation the parties provided for designating their experts late. Ragle and the Sureties’ current counsel had not yet appeared when the deadline to designate affirmative experts passed. They did not anticipate needing experts to substantiate their counterclaim for damages. After the deadline for designating affirmative experts had passed, Ragle and the Sureties claimed that Tusa conducted an analysis that resulted in a different damages amount. Ragle and the Sureties planned to Tusa’s analysis for both their rebuttal to HBonilla’s damages and for their own affirmative counterclaim.
Ragle and the Sureties designated a rebuttal expert whose testimony supports their affirmative claim because of the intertwined nature of Ragle and the Sureties’ rebuttal to HBonilla’s damages claim and their own counterclaim.
Importance of the Testimony
Next, the Court considered the importance of the testimony. The case centered on calculations related to HBonilla’s work as a subcontractor for Ragle, including invoices and payments. The expert testimony directly addressed core issues of what the parties may owe each other, influencing the Court’s decision to allow it.
Potential Prejudice from Allowing the Testimony
The Court considered any potential prejudice permitting the testimony may cause. In this case, HBonilla has had ample time—four months—to consider the experts’ testimony before the close of discovery on September 16, 2024. HBonilla notes in its motion that it had no time to serve written discovery on Ragle regarding these experts, but that was before the Court granted an extension of the discovery period. On the other hand, it would be prejudicial to deprive Ragle and the Sureties of expert testimony regarding their counterclaim, and it would certainly be extremely prejudicial to deprive them of expert testimony to rebut HBonilla’s claims. Because their rebuttal and affirmative testimony is essentially the same, this factor cuts in favor of Ragle and the Sureties.
Availability of a Continuance to Mitigate Prejudice
Finally, the Court considered the availability of a continuance to alleviate any undue prejudice caused by allowing the expert testimony. Since HBonilla has already had time to conduct needed discovery, and even opposed a continuance in its motion, the Court found no need to grant one.
Held
The Court denied HBonilla’s motion to exclude Defendant’s expert witness William Tusa.
Key Takeaway:
The Court decided to admit the construction expert witness’ damages analysis despite the late disclosure. This case hinges on the parties’ calculations of HBonilla’s work as a subcontractor for Ragle and the invoices and payments related to that work. The central issue is the calculation of what the parties may owe each other, and this expert testimony speaks to those calculations. The Court noted that HBonilla had sufficient time to evaluate the expert testimony before the close of discovery and concluded that denying Ragle and the Sureties the opportunity to present this testimony would cause undue prejudice
Case Details:
Case Caption:
Hbonilla LLC v. Ragle, Inc., et al
Docket Number:
3:23cv1478
Court:
United States District Court for the Northern District of Texas, Dallas Division
On March 12, 2019, a fire broke out at a Forest River manufacturing facility. American Home Assurance Company, a subrogee of Forest River, says a lithium-ion battery from a Makita power drill is to blame. American sued both Makita Corporation of America and Makita U.S.A., Inc. under Indiana’s Product Liability Act. The two companies (called Makita today for short) sought to exclude testimony from two of American’s opinion witnesses, Michael Eskra and Fred Hackett, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
Chemical Engineering Expert Witness
Michael Eskra has more than 43 years of experience in the battery industry. He earned a bachelor of science in chemical process engineering at the University of Wisconsin and later a master’s in engineering management at the Milwaukee School of Engineering. Early in his career, he worked as a process engineer in battery manufacturing plants, a manager of advanced battery engineering, and then a program manager.
He later ran a research and development company that developed batteries. Since 1996, he has owned Eskra Technical Products, Inc., which develops battery products and conducts battery failure investigations. He has published over 300 papers and articles. He is a member of various professional organizations, including the American Institute of Chemical Engineers, the National Association of Fire Investigators, the International Association of Arson Investigators, and the National Association of Subrogation Professionals. Makita focuses its attack on his methodology rather than cogently questions his credentials, so the court turns to his method.
Fred Hackett was a firefighter from 1977-1978 and then from 1982-1998. He was a lead arson investigator and documentation officer for the Pike Township Fire Department. For about eleven years before his retirement in 1998, he conducted technical investigations of commercial and residential fires and gas explosions. For five overlapping years during this time, he also was a fire and explosion investigator for Wolf Technical Services, Inc. In 1995, he became president of Midwest Forensics—a position he still holds today.
In both 2003 and 2008, he was certified as a fire and explosion investigator through the National Association of Fire Investigators. He has attended numerous conferences on fire investigations for the better part of 40 years, as well as served as an instructor at times, including on CT imaging and analysis for the past 15 years and state certifications for firefighters studying fire origin and cause for the past 34 years. He has received fire and arson training over the years too.
Michael Eskra is American’s proposed battery expert. He presents two opinions: that the fire at Forest River was most probably caused by a Makita power tool battery’s failure, and that the poor design of its battery management system caused its failure when its cell became unstable under normal intended use. He views the damage to this cell to be inconsistent with fire attack, and instead consistent with internal damage and thus a source of the fire.
Eskra inspected battery cells from the Forest River site to determine whether a battery cell caused the fire. He started his work in July 2019 (about four months after the fire). During the July 2019 inspection, Eskra worked with Fred Hackett (the insurer’s area of origin witness) to review about 80 cell artifacts.
Rounded ends are indicative of a fire attack as opposed to a fire’s cause
As one feature, he looked for “bulbous ends, so if it had bulbous ends, he set them aside.” When pressed to quantify the degree of bulbous or rounded ends (at the cell’s negative end), Eskra admitted he could not do so, nor had he performed any testing to quantify whether a cell was “rounded enough.” At the time he prepared his report and testified in deposition, he had not authored any peer-reviewed articles on this theory of rounded ends being indicative of a fire attack as opposed to a fire’s cause.
Eskra has never tested the elongation of the cell’s crimp
Eskra looked for longitudinal stretching or elongation of the cell’s crimp. He explained that, when gas gets generated during heating over time, the crimp softens and elongates. In this event, according to him, it “tends to be more that it was a slow heating process, a longer heating process, so it would be heat-attacked.” Even this feature he struggled to specify, merely saying external heat “tends to move it a little bit”—but even then “almost all cells will vary” and even “in causal cells it may move” too. To date, he has never measured this elongation to know how much or tested this feature to confirm his theory; and, at the time of his report, he had not published his theory for peer review.
Eskra admitted that he had not performed any testing to validate his theory of the jellyroll being pushed to the negative or vented ends
Eskra says cells with bulbous negative ends or elongated crimps should then be evaluated by x-ray. He selected 20 cells for further analysis. Fred Hackett completed the x-rays at a different location, and Eskra thereafter observed the films through Skype. Eskra never obtained the x-rays and never preserved them.
In his method, Eskra looked for differences in the active material or “jellyroll” within the cylinder of the battery. The jellyroll is the core of the battery cell—”layers of cathode, separator and anode [are] wrapped together to form a spirally-wound ‘jellyroll’.” His report offers exemplar x-rays (not from this case) of his focus at this step—in particular, he looks for large gaseous pockets at the negative ends that will eliminate the cells as causal; and, contrastingly, the jellyroll remains pushed toward the negative and positive ends that will identify potential causal candidates.
Eskra admitted that he had not performed any testing to validate his theory of the jellyroll being pushed to the negative or vented ends .
Eskra reexamined rounding and elongation, and the venting of pressure inside the cell that contributed to these features
Nothing seems to memorialize Eskra’s selection process at this stage, but he narrowed the number of candidates from 20 cells to four (two cylindrical cell pairs) using his method.
Of curiosity to him, each of the cell pairs had one cell that had a rounded negative end and elongated crimp, which to him exhibited signs of external heating, whereas the paired cell did not. He ordered CT scans of the two cell pairs (someone else conducted them), and he received the scans (and preserved these).
At this stage, he reexamined rounding and elongation, and the venting of pressure inside the cell that contributed to these features.
Eskra concluded that the damage to the cell was internal in nature and should be considered as a probable source of ignition of the fire
Eskra acted as a sort of tracker or hunter. He examined the cell to determine whether it showed signs of venting at multiple points and, if so, which one occurred first.
Eskra started by finding the venting point, then beginning at the opposite end worked his way through the axial plane moving longitudinally to look for intact jellyroll.
Venting would not inform whether a cell caused the fire, but inform the locations where he needed to examine. With a causal cell, chaos within the jellyroll will have occurred before the gas pressure vents, including melting or cutting or additional shorting.
Using the first CT scan, Eskra determined that this cell pair was damaged by external events based on his examination of rounding, elongation, and jellyroll analysis. Using the second CT scan, he determined that one cell—what he describes as the lower or bowed cell—was fire-attacked because of “a large gas bubble appearing in the lower left longitudinal section.” For the other top cell, he found no evidence of the “same distortion or gas generation and shoving of the jellyroll materials.”
Eskra thus focused more heavily on this top cell of the second pair. He used a longitudinal image of this cell to say the negative end of the cell appeared “fairly normal” and the spacing between the jellyroll and the can at the negative end was “slightly tighter” than a healthy cell. Without having x-rayed all the other cells, he then offered a prediction—that this would be the “opposite of what would be seen on all the other cells if they were all x-rayed.” In short, he eliminated all the other cells as causal because they showed signs of physical rounding and venting.
Eskra’s theory has not been generally accepted in the relevant scientific community
The Court held that Eskra has never tested his theory—not once—though it could be tested. Indeed, he has had decades to do so. His theory has never been published. His theory has not been generally accepted in the relevant scientific community, much less accepted by peer review at this point.
American has the burden to demonstrate its proposed expert’s reliability. At first, American says Eskra employed a methodology similar to that described in C. Mikolajczak, A Scientific Methodology for Investigation of a Lithium Ion Battery Failure, a 2007 paper by Exponent Failure Analysis Associates, a reputable firm well-known to the court. Eskra agreed his method has never been peer-reviewed, though he too equated his method to that of Exponent. The Court held that it turned out to be a poor defense of Eskra’s method because he deviated in material ways from it. His method marginally overlaps the Exponent method at best. Exponent mentions the importance of x-rays and CT scans certainly, but it speaks little of negative end rounding, crimp elongation, or the particular jellyroll dynamics that Eskra offers to support his causation theory, and Exponent directs rather key investigative steps that Eskra just skipped.
Eskra offers only subjective judgments throughout his opinion
Without a tested or generally accepted model, the Court held that Eskra cannot offer an objective criterion for an elongated crimp either, calling a “a little bit” of movement enough to classify a cell “fire-attacked” and eliminate it from consideration as a cause. But this elongated crimp also proves troublingly variable and subject to his mere say-so for interpretation, for he concedes that “almost all cells will vary” and even “in causal cells it may move” too. He can’t offer a measurement, much less even a “specific description” of how much rounding would typically demonstrate a fire-attacked cell versus a causal cell.
American, as the proponent of this opinion, never once explains why such subjective imprecise criteria—which may show one thing or indeed the opposite thing—can reliably support his winnowing of 80 candidate cells to only 20 cells for x-ray analysis.
Eskra’s method gets worse at the x-ray stage because he preserved none of his work. He claims to have examined images of 20 selected cells, but he cannot produce any x-rays. Of course, he reviewed these images through Skype with another fire investigator, but no one else seems to have retained any x-rays either.
Even giving Eskra the benefit of the doubt that x-ray analysis through Skype could qualify as such a close examination of a cell’s internal features (e.g., gas pockets, jellyroll movement, and the like), he offers nothing but his say-so today about what could be seen back then. He never videotaped the down-selection process; he created no notes or other documentation from his review of x-rays; his report replicated no x-ray images; and no one preserved the x-ray images.
Eskra’s experience without a reliable, testable methodology is not sufficient
Eskra winnowed 80 cells down to 4 cells (two 2-cell pairs, with only one cell of each pair of real interest to him). So by this point, 95 percent of his process occurred under unreliable circumstances—untested or unverifiable as it was. Exponent’s method may offer something testable and repeatable, whereas Eskra’s method did no such thing. He may be experienced, and he may have done better in other cases, but “experience without [a] reliable, testable methodology is not sufficient.”
Exponent explains the critical steps of recovering physical evidence, reconstructing that evidence, and then examining that evidence in a way that preserves the chain of custody for further analysis. Indeed, the scientific method anticipates that an expert will similarly document her work, and then preserve it for others to review or replicate should that prove necessary.
Eskra deviated from the Exponent method in a critical way when he concluded that the lack of external damage to this cell and the good condition of the jellyroll at the negative end made this cell the probable cause of the fire, albeit by saying this would be “the opposite of what would be seen on all the other cells if [they] were all x-rayed.”
Exponent says, to determine the cause of a battery failure, “it is generally necessary to open a damaged battery pack, extract and examine the remains of the cells, the battery protection printed circuit board(s) (PCBs), and any fuses or thermal cut-off devices.”
To say Eskra “primarily employed the same methodology” or “completed virtually all steps” as Exponent are bold overstatements
Exponent recommended gathering information about the battery cells, which “can generally be collected from the end user’s description of the background of the device and the events of the incident, as well as from the incident site.”
Eskra collected no information from Forest River about the use of these battery cells. He didn’t know their state of charge. He didn’t know where the batteries had been found, or whether they were even in the area of the fire’s origin.
Exponent recommended “thoroughly document[ing] the condition of the [battery] system upon receipt, both for establishing the chain-of-custody and to provide clues as to the root cause of the incident,” including “damage patterns such as soot deposits, regions of charring, and evidence of melting” . The Court held that Eskra failed to do this—he never photographed each cell he visually examined or took notes that would show his observations of individual cells. They reflect a fundamental failure to conform his method to the one he says he tried to use.
Fred Hackett
Fred Hackett is American’s proposed fire origin expert. He opined that the fire originated within Forest River’s tool crib—more particularly, at or near the southeast end of the tool crib, following the failure of a lithium-ion battery.
Hackett was retained to determine the fire’s origin and cause on March 13, 2019—the day after the fire. He and his associate completed an initial “scene size-up” on March 14 and 15. On March 14, Hackett interviewed the plant manager (David Whisler). At some point, he also interviewed the tool crib manager (Lanny Kistler). Hackett collected information from the Elkhart Fire Department, which responded to the fire.
In preparation for his opinion, Hackett considered a great deal of information. He reviewed the deposition of Larry Shaffer who first saw the fire, overview photographs of the building, a video taken inside the building during the fire, physical damage to a desk located in the tool crib, and burn patterns on a filing cabinet.
Hackett’s opinion contravenes the NFPA 921
Makita advanced several arguments to exclude Hackett’s opinion. First, the company says his opinion contravenes the National Fire Protection Association Guide for Fire and Explosion Investigations (commonly called NFPA 921). NFPA 921 is “a comprehensive, peer-reviewed, and detailed guide for fire investigation, and [courts] have held that its methodology is reliable for purposes of Rule 702.”
NFPA 921 identifies traditional sources of information to use in determining a fire’s origin—witness statements, electronic data, burn patterns, fire dynamics, and (under the latest 2017 edition) arc mapping, though the extent of melting here prevented every investigator from arc mapping.
The Court found that Hackett relied on burn patterns on the filing cabinet directly west of the desk that showed directional fire traveling from east to west. Moreover, Hackett relied on multiple sources of information to reach his opinion, in accordance with NFPA 921. He also explained how these sources led to his conclusion.
There also seems to be a disconnect between the parties as to whether Hackett reviewed the deposition testimony of six eyewitnesses to the fire in preparing his report or sometime afterwards.
Makita argued that Hackett’s billing records identify a different date for reviewing these depositions (a month after issuing his report). Hackett testified to the clerical error in his bill. Because Hackett offered a logical explanation for the billing error, the Court held that it is a credibility question—one of weight, not admissibility.
Hackett’s reliance on the first observer in helping to pinpoint the fire’s origin was inappropriate
As such, this motion devolves into whether Hackett afforded a particular eyewitness too much weight or not enough weight, and such points are designed for crossexamination rather than a pretrial attack on his method. To this point, under NFPA 921, a fire investigator in the field may evaluate the quality of the information shared by an eyewitness, assessing with common sense the person’s knowledge and any potential bias.
In addition, Hackett relied on testimony from Larry Shaffer—the first person to see the fire. Shaffer said he saw the fire at or near the southeast corner of the tool crib, what he described as a fire about one foot tall and two feet wide. He saw the fire nowhere else. Cannisters began exploding, and he exclaimed the fire’s presence to his fellow employees. Hackett also relied on statements made by David Whisler (the plant manager) during an interview with the Elkhart Fire Department’s investigator and a few days later to Hackett’s associate that the fire appeared near the door of the tool crib. Hackett additionally used screenshots of a video taken by an unnamed eyewitness in the early stages of the fire.
Makita marshals testimony from the other eyewitnesses, but each seem to have seen the fire later in time and in a different location. The Court held that it cannot be said on this record, much less under the NFPA 921 method, that Hackett’s reliance on the first observer in helping to pinpoint the fire’s origin was inappropriate, or that his reliance on early statements from the plant manager soon after the event rather than years later in deposition was inappropriate.
Makita largely argued that Hackett chose his data poorly.
Hackett incorrectly assumed the tool crib was constructed of a porous metal cage material
The Court’s review of other information offered by Makita illustrates that the company’s concern focuses on Hackett’s selection of and weight placed on data, not that his opinion is bereft of a legitimate industry-recognized methodology or factual footing.
In another area, Makita simply has its facts wrong. The company argues that Hackett incorrectly assumed the tool crib was constructed of a porous metal cage material, suggesting he did this so he could claim, in some “tortured effort,” that the fire witnesses saw outside the tool crib was actually inside the crib. The company represents that Hackett was forced to admit that the tool crib’s walls were solid. These are gross misstatements of Hackett’s testimony, and the Court will not entertain them.
Hackett’s opinion was reached based on an expectation bias and later reinforced by a confirmation bias framed with cherry-picked facts
Makita next argued that Hackett’s opinion was reached based on an expectation bias and later reinforced by a confirmation bias framed with cherry-picked facts. This is an argument that Makita may offer the jury if the company thinks it compelling. Makita offered no evidence on this record that Hackett fell prey to an early expectation bias—a preconceived idea of the fire’s origin—or a confirmation bias—merely selecting data to confirm this idea.
Hackett used a negative corpus method, which has long been abandoned by the fire science community
Makita also complained that Hackett used a negative corpus method, which has long been abandoned by the fire science community. The Court held that although Hackett used a process of elimination in reaching his conclusion, he had supporting evidence for eliminating certain potential ignition sources.
Hackett developed nine hypotheses as to possible ignition sources. For eight, all save a hypothesis that lithium-ion batteries started the fire, he ruled them out as ignition sources and explained why, including by relying on witness testimony and the examination of artifacts.
Hackett has the expertise, factual analysis, and industry-recognized method to explain why he eliminated certain potential causes of the fire; whether the jury will credit these explanations or find them flimsy, only the jury can say. The Court held that it is still is a far cry from saying a lithium-ion battery caused the fire.
Hackett confessesed he has no expertise in batteries, and no expertise in distinguishing batteries that have caused a fire from those that have been attacked by one. He repeatedly admitted he must defer to Eskra as to causation.
Hackett proposes merely to parrot Eskra
The Court held that Hackett isn’t merely relying on another expert’s opinion, but proposing to repeat it—worse yet without a factual understanding of the circumstances, any supporting testing or analysis, or a credentialed basis for offering the opinion. This makes his opinion unreliable.
Moreover, the record is devoid of any experience Hackett has developed with fires originating from lithium-ion battery failures or the dynamics of such fires (much less a Makita-designed cell or comparable tool manufacturer), and that burden rests on American.
American suggests that Hackett adds independent research to Eskra’s findings, but American cites only two YouTube videos—both of lithium-ion powered scooters, with no information about the circumstances of those fires or the design of those lithium-ion batteries.
Hackett lacks pertinent expertise
Hackett may say a smoldering fire was unlikely the cause and that a “rapid-ignition sequence of events” makes more sense, but he cannot say this fire originated from a lithium-ion battery. He also may say this fire appears to have been violent, explosive, and immediate in nature (and explain why based on this fire’s dynamics and site or witness evidence), but again he cannot say this fire originated from a lithium-ion battery.
The Court held that not only does he lack pertinent expertise, but he has not done the testing or even examined the battery cells to validate this opinion.
To sum it up, the Court held that Hackett’s opinion would not aid the jury to decide an issue of consequence—a question of fit and would instead invite the jury to speculate that because a lithium-ion battery can cause a fire that it must have done so here.
The Court held that Hackett can offer his opinion about the fire’s area of origin and its related dynamics, as well as explain why certain potential sources of ignition should be eliminated, but he cannot speak to the ultimate cause of the fire.
Held
The Court granted the motion to exclude American’s expert Michael Eskra’s opinions.
The Court granted in part and denied in part the motion to exclude American’s expert Fred Hackett’s opinions.
Key Takeaway:
Application of the Amended Rule 702
A witness may testify in the form of an expert opinion when (1) the witness is “qualified as an expert by knowledge, skill, expertise, training, or education;” (2) the testimony is “based on sufficient facts or data;” (3) the testimony is “the product of reliable principles and methods;” and (4) the opinion “reflects a reliable application of the principles and methods to the facts of the case” in such a way that the testimony will “help the trier of fact to understand the evidence or to determine a fact in issue.” The proponent of expert testimony must establish its admissibility by a preponderance of the evidence.
In other words, the rule has been amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule.
American has the burden to demonstrate its proposed expert’s reliability. However, American has failed to discharge its burden. For instance, when American said Eskra employed a methodology similar to that described in a 2007 paper by Exponent Failure Analysis Associates, it turned out to be a poor defense of Eskra’s method because he deviated in material ways from it.
Moreover, American suggests that Hackett adds independent research to Eskra’s findings, but American cites only two YouTube videos—both of lithium-ion powered scooters, with no information about the circumstances of those fires or the design of those lithium-ion batteries. One could hardly call seconds of two YouTube videos independent or sufficient evidence to render a causation opinion, given Hackett’s ready admissions that he is not the person with expertise to ask.
Case Details:
Case Caption:
American Home Assurance Company V. Makita Corporation Et Al
