Plaintiff Wendy Marie Henshaw alleged that she slipped and fell on a liquid substance on October 28, 2021, at the Defendant Wal-Mart’s premises.
Plaintiff filed a motion to strike Defendant’s medical billing and coding expert, Kathleen DePaolo, MSHI, RHIA, CCS. DePaolo, who is a “Certified Coding Specialist,” intended to offer expert testimony regarding the reasonable market value of Plaintiff’s medical bills. DePaolo’s ultimate opinion is that, although Plaintiff’s medical bills amount to $264,324.76, the reasonable value of those bills is $90,053.36.
Reasonable Value of Plaintiff’s Medical Bills
DePaolo’s expert report includes item-by-item analyses of Plaintiff’s medical providers’ charges. To calculate the reasonable value of Plaintiff’s medical bills, DePaolo used a “three-pronged analysis.”
First, DePaolo audited Plaintiff’s medical bills to ensure that each charge was correctly coded and complied with the “applicable medical billing and coding rules, standards, and federal regulations.” If Plaintiff’s providers failed to code an expense (or if she determined that a provider applied an incorrect code), then DePaolo applied the code that she deemed to be appropriate based on her review of Plaintiff’s medical records.
Second, DePaolo “determined the reasonable marketplace value for the same services within the same community within in the same year.” To calculate the reasonable value of a line-item charge, DePaolo generally relied on three pricing databases: (1) Physicians’ Fee Reference (Yale Wassermann, DMD Medical Publishers, Ltd); (2) Medical Fees (Context4Healthcare Inc. Practice Management Information Corporation); and (3) Find-A-Code.
DePaolo specifically reviewed the seventy-fifth percentile value for each code across the three databases, and she identified the median value to be the “national usual and customary value.” She then multiplied the “national usual and customary value” by a geographic modifier based on Plaintiff’s providers’ zip codes. DePaolo concluded that the resulting number was the “reasonable value” for each line item.
Third, DePaolo conducted a market analysis of outpatient service prices in the Orlando area. To identify additional evidence and further validate the results of her audit, DePaolo reviewed published, hospital-specific data listing local outpatient service prices.
Medical Billing Expert Witness
Kathleen DePaolo is a medical billing auditor with specialized expertise in inpatient hospitalization billing including DRG, ICD-10 diagnostic code classification and pricing methodologies. Her expertise lies in medical billing, health information, and revenue data analytics.
The Plaintiff argued that the Court should exclude DePaolo’s testimony regarding the reasonable market value of Plaintiff’s medical bills because: (1) DePaolo’s opinions are unreliable conduits of hearsay upon hearsay; (2) her opinions and methodology cannot be tested; and (3) her opinions will not assist (and pose an unreasonable risk of misleading) the jury.
DePaolo’s opinions are unreliable conduits of hearsay upon hearsay
According to the Court, the Plaintiff failed to recognize that (1) Rule 803(17) of the Federal Rules of Evidence states that “[m]arket quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations” are not excluded by the hearsay rule and (2) Rule 703 provides that an expert may rely on inadmissible facts or data in forming her opinion if experts in her particular field would reasonably rely on the same evidence.
The Plaintiff primarily claimed that DePaolo’s reliance on the three pricing databases is insufficient, considering that DePaolo does not know how the pricing databases compile their data. However, DePaolo and other courts have explained that experts in the medical billing industry routinely rely on the three databases that DePaolo used.
DePaolo’s opinions and methodology cannot be tested
The Plaintiff specifically argued that DePaolo’s opinions and methodology cannot be tested because DePaolo (1) declined to demonstrate how she queried the pricing databases during her deposition (because she considered the databases to be proprietary) and (2) merely referenced two peer review studies in her Expert Report.
Although the average person lacks access to the pricing databases that DePaolo used, another medical billing and coding expert could surely replicate DePaolo’s calculations. Additionally, Defendant included two letters— authored by highly credentialed individuals—reflecting separate studies of DePaolo’s procedures with its Response.
The Court concluded that the Plaintiff’s argument that DePaolo’s opinions and methodology cannot be tested is meritless.
DePaolo’s opinions and testimony will not assist the jury
Despite the Plaintiff’s argument to the contrary, DePaolo’s testimony plainly relates to the reasonable value of Plaintiff’s medical expenses.
The Court notes that there is a split in this district regarding the admissibility of medical billing and coding experts’ testimony and that it has previously excluded a medical billing and coding expert because “she provided no analysis as to how she reached her opinions and merely state[d] her opinions in a conclusory fashion.”
However, considering the detailed nature of DePaolo’s Expert Report (as well as the complicated healthcare billing landscape in United States), the Court is satisfied that DePaolo’s testimony and opinions are sufficiently reliable, relevant, and admissible in this case. Therefore, the Plaintiff, once again, failed to show that DePaolo’s opinions and testimony will not assist the jury.
Held
The Court denied the Plaintiff’s motion to strike Kathleen DePaolo’s opinions as to reasonable value of the bills.
Key Takeaway:
DePaolo submitted a detailed report on the reasonable market value of the Plaintiff’s medical bills. Her reliance on the three pricing databases was deemed sufficient, and her methodology could be tested despite the Plaintiff’s reservations. Given the complicated healthcare billing landscape in the United States, her testimony, which plainly relates to the reasonable value of the Plaintiff’s medical expenses, could assist the jury.
Plaintiff American Empire Surplus Lines Insurance Company (“AESLIC” or “Plaintiff”) issued to J.R. a commercial excess liability insurance policy, which included a premium charge to be computed as a percentage of J.R.’s gross receipts during the policy period. Plaintiff assigned an advanced premium to the Policy based on J.R.’s estimate of its gross receipts during the policy period, which was subject to adjustment if a post-policy audit reflected that J.R.’s actual gross receipts exceeded its initial estimate.
The post-policy audit concluded that J.R.’s actual gross receipts exceeded its initial estimate, and thus J.R. owed an additional premium in the amount of $487,386.00. Following non-payment of this additional premium, AESLIC brought this action on June 13, 2023, seeking to recover payment of said additional premium.
After Arthur R. Nelson issued his expert report in support of J.R., Thomas M. Trezise issued his rebuttal report in support of AESLIC.
Based on his review of the audit and the Nelson Report, Trezise offered the following four opinions:
1. The Policy was a surplus lines policy and, as such, not regulated by the State of New Jersey. [AESLIC] had full discretion to establish the forms and terms of the Policy as well as the rules and rates by which the premium was determined.
2. The terms of the Policy solely define the relationship between [AESLIC] and J.R…. Standards and practices, whether of admitted or surplus lines insurers, have no application.
3. The Policy provided coverage for significant risks. The coverage was not illusory.
4. J.R. and Nelson cannot challenge the underwriting process of [AESLIC].
Motion to Exclude
While addressing a number of Nelson’s premises and assumptions, Trezise maintained that “rate [at issue] was unmistakably and clearly stated and anyone familiar with basic arithmetic can understand how it determined the premium. The Policy has no flaw as to the definition of the [r]ates and is, therefore, enforceable.”
On August 16, 2024, J.R. filed its Daubertmotion to exclude Trezise’s expert opinion.
Insurance Expert Witness
Thomas M. Trezise graduated cum laude from Western Maryland College in 1975 with a Bachelor of Arts in American Studies and Political Science. He then obtained his Juris Doctor degree from Washington & Lee University in 1978. In 2009, Trezise was licensed as an adjuster in the State of Florida.
From 1978 to 1992, Trezise practiced as a trial attorney, where his experience included commercial, and property & casualty and life insurance coverage and bad faith litigation and his expertise included commercial litigation, premises and premises security liability, and insurance coverage. Trezise held various positions in the insurance industry for over 30 years and, during that time, he supervised individuals who conducted premium audits. He also was involved in litigation where there was a dispute “over the premium owed or whether additional amounts were owed under the policies.” The policies in that litigation were “structured similar to the policies in this case,” because there was “an [upfront] premium involved and then a premium due at the end.”
Additionally, Trezise’s self-identified expertise includes “the management of primary and excess property and casualty liability, property, auto physical damage, and worker’s compensation business operations, claims, coverage, and litigation, as well as reinsurance and surplus lines issues in those lines.” He also has assisted underwriting departments in the development, drafting and approval of policy forms, underwriting classifications, rate filings and risk management services.
Defendant argued that Trezise is not qualified as an expert because he lacks relevant experience in conducting post policy premium audits, especially in connection with surplus lines policies.
The Court found that Trezise is qualified as an expert. The Court added that Trezise possesses “specialized knowledge” in insurance that will more likely than not “help the trier of fact to understand the evidence or to determine a fact.”
In addition to his experience of over 30 years in the insurance industry and related experience involving insurance coverage as a trial attorney, the Court added that he has “experiential qualifications in a general field closely related to the subject matter in question.” Considering the “liberal thrust” of the Federal Rules and their “general approach of relaxing the traditional barriers to ‘opinion’ testimony,” Trezise is qualified as an expert to provide an opinion (but not as to legal conclusions).
Existence Of Sufficient Facts Or Data And Reliable Principles And Methods
Defendant argued that Trezise’s opinions are not well-grounded, are not reliable, are purely speculative, and lack analysis, because Trezise has no experience with post-policy premium audits.
The Court found that Trezise’s opinions, as permitted herein, are based upon sufficient facts and reliable principles and methods drawn from his background, including relevant experience. Trezise has decades of experience in the insurance industry, during which he was exposed to the surplus lines market. Trezise’s opinions regarding industry practice, including his opinions about the purpose of surplus lines policies and the general existence of standards and practices in the surplus lines market, is based upon that experience. After all, Trezise explicitly tied his conclusion regarding industry practice to his specialized experience.
Defendant argued that Trezise’s experience, which does not include participation in post-policy premium audits, does not align with the issues here. The Court held that such a “quibble” goes to the “weight and credibility,” and not the admissibility of Trezise’s opinion.
Helpful To The Trier Of Fact
The Court found that portions of the Trezise Report and related deposition testimony improperly reach legal conclusions. For example, the Trezise Report includes interpretation of policy language, such as the discussion of whether a professional liability exclusion clause in the Policy limits its coverage for New York Labor Law claims.
The Court held that such legal conclusions are not helpful to the trier of fact, because an expert’s opinion on questions of law is inadmissible even when an expert—like Trezise, who is a former practicing attorney—has legal qualifications.
Held
The Court granted in part and denied in part the Defendant’s Daubert motion to exclude Trezise’s expert opinion.
Key Takeaways:
Trezise explicitly tied his conclusion regarding industry practice to his specialized experience. Trezise’s opinions regarding industry practice, including his opinions about the purpose of surplus lines policies and the general existence of standards and practices in the surplus lines market, is based upon his years of experience in the insurance industry and his exposure to the surplus lines market.
Trezise may provide testimony about the insurance industry and audits, and he may provide his opinion regarding premiums due under the Policy based upon a hypothetical set of facts. However, Trezise may not testify or provide his opinion about his interpretation of the Policy, and may not testify about any other legal conclusions.
Case Details:
Case Caption:
American Empire Surplus Lines Insurance Company V. J.R. Contracting & Environmental Consulting, Inc.
Sarah Budd alleged that SkyWest (Defendant) discriminated against Budd by subjecting her to a sexually hostile work environment during her employment at SkyWest’s Dallas-Fort Worth International Airport facility and retaliating against her for reporting the harassment. Budd claimed that SkyWest placed her on indefinite administrative leave as retaliation.
In response, the Equal Employment Opportunity Commission (“EEOC”) filed a motion to exclude Dr. Steven H. Berger‘s anticipated opinion testimony, which challenged the Plaintiffs’ expert Dr. Kristin W. Samuelson‘s diagnoses and the results of her assessment of Budd using the Minnesota Multiphasic Personality Inventory—Third Edition (MMPI-3).
Psychiatry Expert Witness
Steven H. Berger is a graduate of the University of Michigan Medical School (1972). He has been licensed as a physician in Nevada since 2004, in California since 1999, and in 6 other states. He is board certified in General Psychiatry (1978) and Forensic Psychiatry (1985, 1998, 2005, 2013, 2019). He is a Clinical Professor of Psychiatry, University of Nevada, Reno, School of Medicine. He is a member of the American Psychiatric Association (1975) and has been a Distinguished Life Fellow since 2009. He is a member of the American Medical Association (1974) and the American Academy of Psychiatry and the Law (1985). He served as the Chairman of the Ethics Committee of the Michigan Psychiatric Society (1989-1994) and the Indiana Psychiatric Society (2001-2017).
A. Berger has received no specialized training on PTSD
Berger opined that Samuelson’s diagnosis of Budd suffering from Post-Traumatic Stress Disorder (PTSD) was incorrect. The EEOC contended that this opinion should be excluded, arguing that Berger was unqualified to render it and that it was irrelevant and unreliable. The Court held that Berger’s opinion and related testimony were inadmissible. He lacked the qualifications to critique Samuelson’s performance of the psychological assessments that support her diagnosis because he has never performed them himself, he is not qualified to read or interpret their resulting data, he has received no specialized training on PTSD, and he has never written on the topic.
The Court also deemed Berger’s opinion unreliable. His purported “common-sense” approach to interpreting the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, did not meet the reliability standards required by Rule 702.
Furthermore, Berger claimed that the MMPI-3 assessment that Samuelson administered to Budd indicated that she over-reported some symptoms. The EEOC argued that this opinion did not occur to Berger, but to his colleague, Dr. Sarah Hall, to whom he provided Samuelson’s data. While SkyWest claimed Berger offered an independent analysis of Hall’s findings on the MMPI-3, the Court, once again, found this opinion inadmissible. It was unreliable, and rests on Berger’s common sense and life experience rather than an independent analysis of Hall’s findings. Moreover, the Court decided that Berger—who had never administered the MMPI-3 and was unable to read its test data—is unqualified both to opine on Budd’s MMPI-3 assessment and to independently analyze Hall’s MMPI-3 findings.
B. Berger draws impermissible legal conclusions
Berger stated that Budd failed to mitigate her symptoms and that her litigation stress was not compensable. The EEOC contended that Berger made impermissible conclusions of fact and law, while SkyWest argued that his testimony would help the jury understand the evidence. The Court determined these opinions were inadmissible as well. Berger was unqualified to offer legal conclusions, and his reliance on common sense and life experience rendered his opinions unreliable.
Held
The Court granted the EEOC’s motion to exclude Defendant’s expert witness, Steven H. Berger.
Key Takeaway:
Berger has received no specialized training on PTSD, and he has never written on the topic. Certain opinions offered by Berger rest on what he acknowledges are his common sense and life experience, and Hall’s findings, which he did not independently analyze. The Court did not admit his testimony.
Case Details:
Case Caption:
Equal Employment Opportunity Commission V. Skywest Airlines Inc
Docket Number:
3:22cv1807
Court:
United States District Court for the Northern District of Texas, Dallas Division
It all started when Lewis Youngman fell from his motorized wheelchair while driving on the entry gangway of the Defendant’s cruise ship, Mariner of the Seas. Youngman alleged that, as a result of Defendant’s negligence, a certain portion of the gangway was impermissibly steep, uneven, and mis-leveled. Consequently, Youngman argues, the uneven flooring caused his wheelchair to tip over. This alleged negligence then resulted in severe injuries.
Defendant sought to strike some of this expert testimony from Plaintiff’s expert witness, Frank Fore, and Plaintiff’s hybrid witnesses, Timothy Carter, M.D., and Mark Fulton, M.D. As to Fore (an engineer), Defendant sought to strike his opinion that Plaintiff would not have been ejected from his motorized wheelchair were it not for the impermissibly steep incline of the gangway. Additionally, Defendant sought to strike Fore’s testimony that, had one of Defendant’s crewmembers more appropriately assisted Plaintiff, in accordance with Defendant’s own internal policies, Plaintiff’s incident would not have occurred.
Further, Defendant sought to strike Plaintiff’s treating physicians, Carter and Fulton, for Plaintiff’s allegedly insufficient pretrial disclosure. Alternatively, if the Court deems Plaintiff’s disclosures to be sufficient, Defendant moved to strike certain testimony from Carter on reliability grounds.
Forensic Engineering Expert Witness
Frank A. Fore is a forensic engineer, his specialties include vessel dynamics, kinematics, and accident reconstruction; occupant and pedestrian biomechanical dynamics, kinematics and injury analysis, tribology and the engineering of interacting moving surfaces, including the study of the co-efficient of friction, lubrication, and wear.
Mark Fulton is a Board-Certified Diplomat by the American Board of Neurological Surgery and is a fellow American Association of Neurological Surgeons, who specializes in both complex spinal and intracranial surgery. He received his medical degree from University of Utah School of Medicine and served both a Residency program and a Surgical Critical Care Fellowship at the Ohio State University Hospitals.
Timothy D. Carter is a Board-Certified Diplomat by the American Board of Neurology, who specializes in neurology, internal medicine, and clinical neurophysiology. He received his medical degree from University of Florida School of Medicine and completed a year of internal medicine residency at the University of Virginia affiliated programs. His neurology residency and clinical neurophysiology fellowship were completed at the Medical University of South Carolina where he was also Chief Resident.
“Plaintiff would not have been ejected and injured had his mobility scooter not abruptly tipped over on the gangway’s steep slope … or if the Gangway and Transition Plate had not exceed[ed] the mandatory maximum slope requirements as set forth in the Americans with Disabilities Act and the Florida Building Code, inter alia.”
Defendant argued that this conclusion is inadmissible because Fore did not engage in sufficient—or indeed any—testing before reaching this conclusion. Specifically, Defendant avers that Fore had no information regarding the make or model of Plaintiff’s motorized wheelchair (which Fore mistakenly referred to as a mobility scooter throughout his report); did not know how much the wheelchair weighed; did not know how much Plaintiff weighed; did not know how many wheels the wheelchair had; did not consider, or even know, the speed at which the wheelchair was traveling; and lacked understanding of other important details before drawing his conclusion. Defendant also pointed out that Fore did no experiments or other tests before arriving at his conclusion.
Fore made no effort to gather pertinent facts before concluding that the slope of the gangway was the cause of Plaintiff’s injury
The Court held that Fore’s conclusion is borne almost entirely of “anecdotal experience or speculation.” Fore offered no awareness of any facts specific to Plaintiff’s situation, let alone that he considered those facts in his opinion. Specifically, Fore’s opinion is untethered to critical facts such as the speed at which Plaintiff was traveling, the assistive device in which Plaintiff was traveling, the weight at which Plaintiff was traveling, or other details which would be necessary to render a reliable, non-speculative methodology. To the contrary, Fore’s opinion is based entirely on the theory that the gangway appeared to him to be improperly sloped, juxtaposed against videos of other people ostensibly falling on the gangway. The Court “concluded that there is simply too great an analytical gap between the data and the opinion proffered.”
However, Plaintiff missed the operative purpose for which this testimony was offered: “Defendant’s conformity to industry safety standards.” Here, Defendant has wisely opted not to challenge the portion of Fore’s testimony that opines on whether the gangway conforms with industry standards. Given Fore’s stated experience and training, plus his review of the basics of the record in the case, the Court held that this conclusion does fall within the Daubert reliability standard.
The Court held that Fore’s opinion rests too strongly upon speculation, such that it is unreliable under Daubert and its progeny. And because Fore’s speculation-laden testimony that the allegedly improperly-sloped gangway was the but-for cause of Plaintiff’s injuries lacked legal reliability, the Court granted Defendant’s motion to strike that portion of Fore’s testimony.
However, the Court refused to strike Fore’s testimony that “certain building codes and guidelines or regulations were arguably applicable to the subject gangway and that any alleged deficiencies with the subject gangway may have contributed to Plaintiff’s incident.”
Fore may not, however, testify that Plaintiff’s “mobility scooter would not have tipped over” had Defendant complied with its policy
Defendant sought to strike the portion of Fore’s report that Plaintiff’s “mobility scooter would not have tipped over had an RCCL crewmember assisted [Plaintiff] as required by RCCL internal policies ….”
The Court decided that Fore may testify as to whether, in his opinion, Defendant complied with its own internal policies. Indeed, courts have held that it is not a legal conclusion to analyze a party’s actions against its internal policies, and to determine whether the party complied with those policies.
The Court held that Fore may not, however, testify that Plaintiff’s “mobility scooter would not have tipped over” had Defendant complied with its policy. This testimony certainly rings again of an ultimate legal conclusion; i.e., that Defendant’s alleged failure to comply with its policy was the but-for cause of Plaintiff’s injuries. Thus, this portion of Fore’s anticipated testimony is inadmissible as it is purely a legal conclusion.
Challenges as to the Disclosure of Mark Fulton and Timothy D. Carter
Mark Fulton and Timothy D. Carter are hybrid witnesses pursuant to Federal Rule of Civil Procedure 26(a)(2)(C). Both are treating physicians of the Plaintiff, who will offer opinions within their areas of expertise, as disclosed below, but who need not provide a written report.
In addition to no reports being disclosed, Defendant argued that Plaintiff’s description of the testimony was also vague. That description is as follows:
“The Plaintiff’s medical condition related to the injuries that the Plaintiff sustained as alleged in the Complaint, including Plaintiff’s current medical symptoms, past and future medical and surgical condition and treatment, injury causation, aggravation of injuries and preexisting conditions due to the subject incident, diagnosis, prognosis, permanency, disability, and impairment, … the reasonableness of the costs and necessity of the medical care and treatment that was performed on the Plaintiff and the nature and estimated cost of future necessary medical and treatment for the Plaintiff.”
While the Court doubted whether the disclosure’s description is sufficient, the Court readily found that the ample time to depose the expert witnesses cured any ostensible prejudice.
Challenges as to Carter’s Anticipated Testimony
Defendant lodged substantive challenges to Carter’s proffered testimony.
Carter is a neurologist who has been treating Plaintiff since 2017. In 2019, Carter seemed to indicate that Plaintiff was experiencing neurological issues, and in 2021 essentially reaffirmed Plaintiff’s 2019 condition. On August 21, 2022, Plaintiff experienced his fall, and on September 7, 2022, underwent neck surgery. Eight months after Plaintiff’s fall, in May 2023 (and again in June 2023), Plaintiff had a visit with Carter. At that point, Carter seemed to notice marked differences in Plaintiff, including significant declines in his “mental and cognitive status,” his “speech and language,” his “attention and concentration,” and other mental faculties. Now, Carter seeks to testify that “more likely than not … the confluence of events together [i.e., Plaintiff’s fall and subsequent surgery] certainly contributed to some degree of deterioration.”
Defendant argued that Carter’s causation opinions should be excluded because Carter relied too heavily on temporal proximity and failed to rule out other factors causing Plaintiff’s neurological demise. Specifically, Defendant argued that Plaintiff, per Carter, was beginning to experience decline before Plaintiff’s fall; that imaging showed Plaintiff’s brain was already losing size and blood flow; that Carter failed to rule out that Plaintiff’s recurring urinary tract infections, as well as opioid and cannabis use, contributed to Plaintiff’s cognitive decline; that Carter could not determine that Plaintiff’s cerebral fluid issues were caused by the fall; and that Carter could not connect Plaintiff’s bowel and bladder incontinence to the fall.
Defendant’s Unpersuasive Challenges to Carter’s Opinions are Meritless
Carter bases his findings on a years-long relationship with Plaintiff, myriad neurological testing over those years, unchallenged qualifications in neurology, Plaintiff’s accident and surgery, and observations based on those years of visiting with Plaintiff to conclude that “the confluence of events together certainly contributed to some degree of deterioration.”
The Court held that it suffices to pass muster under Daubert, regardless of whether Carter directly ruled out every other cause of Plaintiff’s sudden neurological decline, or in part considered temporal proximity.
And to the extent that Defendant challenged the certainty of Carter’s findings (i.e., that “the confluence of events” contributed to “some degree of deterioration”), the Court decided that the Defendant is entitled to draw out Carter’s certainty before the jury via cross-examination. But such an argument goes to the weight, not the admissibility, of Carter’s testimony.
Held
The Court granted Defendant’s motion to strike Frank Fore’s testimony that the allegedly improper gangway slope was the primary or but-for cause of Plaintiff’s injury (or in other words the accident would not have happened but for the slope).
The Court denied Defendant’s motion to strike Fore’s testimony that Defendant failed to comply with its internal policies.
The Court granted Defendant’s motion to strike Fore’s testimony that Defendant’s failure to comply with its internal policies is the primary or but-for cause of Plaintiff’s injuries (or in other words the accident would not have happened had Defendant followed its internal policies).
The Court held that any deficiency in Plaintiff’s disclosures of Mark Fulton and Timothy Carter will be cured so long as Plaintiff makes Fulton and Carter available for deposition within twenty days of this Order.
The Court denied Defendant’s substantive motion to strike the testimony of Carter.
Key Takeaways:
Defendant persuasively challenged the reliability of the methodology Fore employed to go a step further to conclude that the ostensibly-improper gangway was the but-for cause of Plaintiff’s injurious ejection. An ultimate causation opinion goes a great deal further than simply an opinion that industry standards were not followed. A causation opinion must be supported by greater analysis and investigation.
Fore’s testimony that “certain building codes and guidelines or regulations were arguably applicable to the subject gangway and that any alleged deficiencies with the subject gangway may have contributed to Plaintiff’s incident” certainly falls within his expertise and experience. And the work he undertook to reach that more limited opinion is sufficient for Daubert purposes.
Plaintiff Michael Colwell alleged that a Sig Sauer P320, which he was issued in connection with his duties as a police officer in Troy, New York, discharged during a police training exercise even though Plaintiff never touched the trigger. Plaintiff testified that he put the gun in his holster during the exercise and was starting to move across his body to get his taser, or was “just about to get there,” when the gun discharged.
As a result, Colwell brought this diversity action against Defendant Sig Sauer, the manufacturer of a Sig Sauer P320 handgun which Plaintiff alleges discharged unintentionally, into Plaintiff’s thigh. Colwell asserted claims for strict products liability, negligence, breach of implied warranty of merchantability, breach of express warranty, and negligent and intentional infliction of emotional distress. His wife, Julia Colwell, asserted a claim for loss of consortium.
Defendants’ motions challenged the expert testimony of William Vigilante and James Tertin. The experts have opined that the lack of external safeties rendered the P320 defective because it is a single-action pistol with a short trigger pull, which makes it more likely to be actuated. Both experts have opined that the defective design was a cause of the unintentional discharge in this case.
General Background Regarding the P320
Tertin opined that the P320 had no external safeties. External safeties “help prevent unintended discharges by manually blocking the trigger from being pulled until the user decides they are ready to fire.” Competitors sell striker-fired handguns with external safeties, such as (1) thumb safeties and (2) tabbed trigger safeties.
Plaintiffs asserted that the failure to include a manual thumb safety and/or a tabbed trigger into the design of the P320 rendered the firearm defective and unreasonably dangerous.
Firearms & Ballistics Expert Witness
James Tertin is currently the director of research and development for Magnum Research, a firearms manufacturer based in Pillager, Minnesota. In that role, he is responsible for designing and developing new firearms for the company.
He has been a professional gunsmith since graduating in 1972 from the Gunsmithing School at Trinidad State College in Colorado; the oldest gunsmithing school in the United States. Over the past fifty years, he has been awarded seven firearm design patents.
William Vigilante graduated with a Doctoral of Philosophy and a Master’s of Science in Ergonomics (Human Factors) Psychology and a Bachelor of Science degree in Psychology (Cognitive track). He is also a Certified Professional Ergonomist by the Board of Certification in Professional Ergonomics. He has more than 25 years of experience in psychological and human factors research with a focus on human-machine interaction, control-display design, product design, hazard identification and mitigation, risk perception, situational awareness, perception-reaction time, and the design and testing of warning systems.
Plaintiffs sought to present Vigilante’s testimony “that the P320’s lack of safety features was a proximate cause of Plaintiff’s unintended discharge.” Vigilante testified that “had Sig Sauer integrated a tab trigger safety into the design of the Sig P320, the subject unintentional discharge would most likely not have occurred and Michael Colwell would not have been injured.”
The Court held that Vigilante’s knowledge of this particular incident is severely limited. He did not personally inspect the holster or the pistol. He read Plaintiff’s testimony but did not speak with Plaintiff or anyone with direct knowledge about the incident.
The Court found that Vigilante’s causation opinion did not pass muster under Rule 702 because it is not “based on sufficient facts or data”; it is not “the product of reliable principles and methods” and it does not “reflect a reliable application of the principles and methods to the facts of the case.”
Plaintiffs have cited cases in which Vigilante’s proffered testimony had established a connection between the alleged design defect and the facts of the particular case. In one case, there was video footage of the incident, leading to an undisputed theory of how the pistol discharged. Here, however, there was no video footage, no explanation as to why Colwell’s pistol discharged, and no experimentation.
James Tertin
In forming his opinions, Tertin relied upon his inspection of the P320 pistol used by Plaintiff, his inspection of an exemplar P320, his review of several competitor pistols, and videos of other similar incidents.
During his deposition Tertin testified that he did not review any file materials in this matter and understood the incident to have occurred as Plaintiff described it. Tertin did not inspect the Plaintiff’s holster and did not have an opinion as to whether Plaintiff’s hands were fully off the pistol at the time it discharged or what conclusions the police reached regarding the incident.
Tertin acknowledged that he had no information about whether Plaintiff would have engaged a manual thumb safety in this instance if one had been available. To that end, there is nothing in the record to demonstrate that a manual safety would have been engaged if the P320 had one. According to the Court, without any evidence permitting an inference that a thumb safety would have been used, a finding that the lack of a thumb safety caused the accident is pure speculation.
Tertin’s analysis hinges on “practical function” that because a pistol with a tabbed trigger has “one more step for safety,” Plaintiff’s pistol would have been less likely to fire if it had a tabbed trigger. Nevertheless, Tertin acknowledged that guns with tabbed triggers can discharge unintentionally too. It is worth noting that Tertin did not explain how a tabbed trigger would have prevented the accident if a foreign object, such as an article of clothing, had been caught in the trigger.
Held
The Court granted Defendant’s motions in limine challenging the opinions of William Vigilante and James Tertin.
Key Takeaways:
Vigilante’s causation opinion was excluded because of his severely limited knowledge of the incident.
Tertin’s conclusion that the lack of a thumb safety caused the accident is not supported by evidence permitting an inference that a thumb safety would have been used.
Sheila Harper’s vehicle was struck by a Ford F-350 driven by Michael LaBeau at an intersection on the Naval Construction Battalion Center in Gulfport, Mississippi on August 10, 2021.
Michael LaBeau was acting within the course and scope of his employment with the United States Navy when the accident took place. Harper filed an administrative complaint under the Federal Tort Claims Act, before filing this lawsuit against the United States.
She designated her treating physician, Dr. George Salloum, as an expert witness. The United States asked the Court to exclude Salloum’s opinion that the surgeries he performed on Harper’s shoulders were causally connected to the accident. Harper asked the Court to strike the expert testimony of the United States proposed expert witness, Evan McConnell, who was designated as an expert in the fields of accident reconstruction and biomechanical engineering.
Harper argued that McConnell provides medical opinions that are outside his field of expertise. She further asserts that his opinions are unreliable because he did not visit the accident scene, inspect the parties’ vehicles, conduct interviews concerning the accident, or “perform any physical or virtual crash reproductions.”
The United States argued that Salloum’s causation opinion should be excluded because he did not rule out other possible causes of Harper’s shoulder injuries, and he did not know that she had undergone two rotator cuff surgeries on her right shoulder prior to the accident at issue. It was further asserted that Salloum was not aware of “Harper’s significant history of serious falls requiring various treatments.”
Accident Reconstruction Expert Witness
Evan McConnell holds a B.S. degree in Bioengineering and an M.S. degree in Biomedical Engineering, and he is a registered professional engineer in the states of Georgia, Alabama, and Tennessee. He is also an Accredited Traffic Accident Reconstructionist through the Accreditation Commission for Traffic Accident Reconstruction (ACTAR #3600) and a certified XL Tribometrist. McConnell has extensive experience in analyzing the dynamics and biomechanics involved in numerous accidental events, including low- and high-speed auto accidents, slip and fall events, and workplace injuries, among others.
George Salloum joined Bienville Orthopaedic Specialists in 2001. He specializes in sports medicine along with reconstructive surgery of the shoulder and knee. Salloum uses an arthroscopic and muscle sparing approach to the knee and shoulder, resulting in shorter hospital stays and more rapid rehabilitation. He has been at the forefront of the latest techniques in balancing knee replacements, including consulting with implant companies on both techniques and devices as well as teaching and lecturing other surgeons on the newest balancing techniques. He has extensive experience in robotic knee replacements.
Salloum is board certified by the American Board of Orthopaedic Surgery with a Certificate of Added Qualification in Orthopaedic Sports Medicine. He completed his internship and residency at the University of Mississippi Medical Center, Department of Orthopaedic Surgery and Rehabilitation in 2001. Salloum sees patients at the Biloxi and Gulfport locations and is accepting new patients.
Harper’s motion to strike the United States’ expert witness Evan McConnell
McConnell prepared a seventeen-page report supported by numerous citations to peer-reviewed literature, a simulation of the angle of impact, photographs he reviewed, and two charts depicting compressive loads on the spine. He explained that he did not visit the scene of the accident because his review of the accident report and “Google Earth overviews of the accident site” revealed that “there were no specific roadway factors at this location that would influence the dynamics of the contacting vehicles in such a way as to affect the subsequent biomechanical analysis.”
He researched vehicles similar to Harper’s Chevrolet using the National Highway Traffic Safety Administration’s Crash Investigation Sampling System.
Using the data he retrieved, he “concluded that the subject Chevrolet likely experienced a primarily rearward-directed delta-V of up to but no more than 7 mph in the accident.” The lack of airbag deployment further supported this determination.
Harper claimed that she suffered injuries to her head, arms, wrists, neck, and shoulders in the accident. While reviewing Harper’s medical records to determine injuries diagnosed in her medical records, he concluded that “the contact between the left-rear of the Ford [driven by LaBeau] and the left-front of the Chevrolet [driven by Harper] would have been expected to result in a primarily rearward-directed change in speed (delta-V) of up to 6 miles per hour (mph) for the Chevrolet.”
Whether McConnell Offers Inappropriate Medical Opinions
Most courts that have addressed this issue have determined that biomechanical engineers are qualified “to render an opinion as to the forces generated in a particular accident and the general types of injuries those forces may generate,” but they are not qualified to offer opinions as to specific causation, i.e., “the precise cause of a specific injury.”
The Court held that McConnell’s opinions pertain to general causation, such as the forces that an occupant of a Chevrolet would be subjected to in the car accident at issue. He has not issued any specific opinions concerning the cause of Harper’s injuries.
Whether McConnell’s Opinions Are Reliable And Relevant
Harper argued that McConnell’s opinions are unreliable and unhelpful due to his failure to visit the scene of the accident, interview witnesses, inspect the parties’ vehicles, or “perform any physical or virtual crash reproductions.”
McConnell has explained that an inspection of the scene of the accident was not necessary due to the road conditions and nature of the accident. He has also testified that the use of photographs in the field of accident reconstruction “is a well-accepted, repeatable, and reliable methodology supported by peer-reviewed literature,” and he cited peer-reviewed articles supporting this methodology in his report. The Court found that McConnell’s opinions are supported by sufficient facts and data as well as an accepted peer-reviewed methodology. Furthermore, his testimony will assist the Court in determining the amount of force generated by the accident.
The United States’ Motion To Exclude Salloum’s Causation Testimony
Salloum offered the following opinion: “Within a reasonable degree of medical probability, I feel that the motor vehicle collision caused the left shoulder rotator cuff tear and the recurrent rotator cuff tear to the right shoulder and aggravated. Likely pre-existing carpal tunnel syndrome bilaterally. I anticipate no future medical costs with regards to these injuries at this point.”
He further opined that she reached maximum medical improvement for both of her shoulder surgeries on October 13, 2022.
During his deposition, Salloum testified that he did not have access to Harper’s medical records and treatment history when formulating his opinion, so he could only rely on the medical history provided by Harper. Salloum testified that he was aware Harper had previous surgery on her right rotator cuff, and his medical records reflect that she informed him of that prior surgery.
The Court has not found any basis in the record for excluding Salloum’s opinion that the accident caused Harper’s left shoulder injury. Furthermore, there is testimony and evidence before the Court indicating that Salloum was aware of Harper’s pre-existing right shoulder injury when he determined that the right shoulder injury that he surgically repaired was caused by the accident. Finally, while there is some confusion regarding Salloum’s treatment and opinions concerning Harper’s right shoulder, there is no danger of confusing or providing prejudicial information to a jury in the present case, and the Court will be in a better position to consider the United States’ arguments concerning Salloum’s testimony at trial.
Held
The Court denied the motion to strike expert witness Evan McConnell filed by Plaintiff Sheila Harper.
The Court denied the motion to exclude causation testimony of George Salloum filed by Defendant United States of America.
Key Takeaways:
McConnell’s opinions pertain to general causation, such as the forces that an occupant of a Chevrolet would be subjected to in the car accident at issue. He has not issued any specific opinions concerning the precise cause of Harper’s injuries.
The United States has not identified any record of prior injury to Harper’s left shoulder that Salloum should have considered before opining as to the causation of Harper’s left shoulder injury. Harper’s other accidents and injuries appear unrelated to her shoulder injuries; thus, at this time, the Court cannot fault Salloum for failing to consider them.
Case Details:
Case Caption:
Harper V. The United States Of America Et Al
Docket Number:
1:23cv197
Court:
United States District Court for the Southern District of Mississippi, Southern Division
In October 2020, Sentilles (Plaintiff) was diagnosed with mesothelioma and subsequently filed a case asserting negligence and strict liability claims against multiple defendants, including Avondale (Defendant). He claimed that his asbestos exposure from the 1950s to the 1980s caused his illness. Sentilles stated that he was personally exposed to asbestos while working at Avondale’s shipyard in 1969. He also alleged secondary exposure from his brother, Tom Sentilles. Tom’s work clothes contained asbestos while they lived and commuted together during his employment at Avondale.
In his deposition, Sentilles testified that during May and June 1969, he worked in Avondale’s insulation shop sewing asbestos blankets for ships under construction. At that time, Avondale was building vessels under contract with the U.S. Navy, Coast Guard, and the United States Maritime Administration (MARAD), and he recalled that some of the asbestos blankets were installed on Navy ships.
Avondale’s Compliance with Federal Inspection Standards
Avondale was constructing vessels for the U.S. government, it raised affirmative defenses, including derivative sovereign immunity and government contractor immunity. To support these defenses, Avondale hired marine engineer and former Navy officer Herfel as an expert witness. Herfel issued two reports analyzing the specifications, policies, and knowledge of the Navy, Coast Guard, and MARAD regarding the use of asbestos materials on their ships.
Herfel’s reports began by outlining his qualifications. He then described the case-specific evidence he reviewed, including various depositions, Sentilles’s Avondale employment records, and vessel construction contracts and specifications. He also researched records pertaining to the government ships constructed and repaired at Avondale before, during, and after Sentilles’s employment at the shipyard.
Herfel essentially rendered two opinions. First, he opined that the government, as stated in its contracts and vessel specifications, required asbestos-containing materials to be used on its vessels, and Avondale was required to act in “strict compliance” with that requirement. Federal inspectors regularly inspected Avondale to ensure compliance. Second, Herfel explained that the government’s research on the health hazards posed by asbestos dates back to the 1940s and concluded that a private-sector shipyard, such as Avondale, could not have had greater knowledge of those hazards than the federal government.
Maritime Expert Witness
Christopher P. Herfel earned a Bachelor of Science degree in marine engineering, with a minor in shipyard engineering management. He served eight years as a commissioned officer in the United States Naval Reserve. He held a Coast Guard-issued third assistant engineer’s license for steam and diesel propulsion, with unlimited horsepower. Herfel worked as a shipyard superintendent, managing the repair and overhaul of various military and merchant vessels. This work included asbestos abatement projects. He later served as the president and chief executive officer of McCaffery & Associates, Inc. This company specialized in researching and analyzing Navy, Coast Guard, and other government documents related to ship design, construction, maintenance, and repair. For the past 21 years, Herfel has researched and interpreted contracts, specifications, and records concerning materials used in the construction, maintenance, and repair of federal vessels.
Sentilles argued that Herfel’s testimony and opinions should be excluded from trial, citing a lack of qualifications and improper methodology. He claimed that Herfel was unqualified because he was not an industrial hygienist and lacked a degree in naval or maritime history or policy. Additionally, Sentilles criticized Herfel’s methodology, arguing that he had not reviewed relevant documents about Avondale’s asbestos history, that his references to OSHA and safety standards were irrelevant, and that he had no experience interpreting contracts. Sentilles also contended that Herfel’s former status as a Navy officer might mislead the jury into believing he spoke on behalf of the government.
In response, Avondale defended Herfel’s qualifications, emphasizing his education, work experience, and research. They stated that Herfel’s training and experience made him uniquely qualified to explain the historic policies and practices of the Navy, Coast Guard, and MARAD concerning asbestos-containing materials. Avondale clarified that it did not present Herfel as an industrial hygienist or shipyard historian. It argued that his lack of a history degree was irrelevant since his expertise stemmed from years of research and experience. Furthermore, Avondale contended that Herfel’s methodology was sound and did not require peer review because his field was not scientific. They asserted that Herfel’s testimony would help the jury understand complex government records related to shipbuilding.
Helpfulness to the Jury
The Court, considering both sides’ arguments and Herfel’s qualifications, ruled that he was qualified to testify. It found his opinions relevant and reliable. The Court noted that Herfel’s experience as a marine engineer and Navy officer, along with his two decades of research, made him well-suited to explain the government’s shipbuilding practices and asbestos policies. The Court concluded that Herfel’s testimony would assist the jury in understanding the government’s role in requiring asbestos on vessels. It also highlighted Avondale’s compliance and the historical information about asbestos hazards.
Held
The Court ordered that Sentilles’s motion in limine to exclude Christopher Herfel be denied.
Key Takeaway:
The Court ruled that the expert’s qualifications and the reliability of their testimony were sufficient for admissibility. It highlighted the necessity for the district court to serve as a gatekeeper. This role ensures that expert opinions assist the jury and are based on reliable methodologies. The Court noted that the factors for assessing the reliability of expert testimony, as established in precedent, should be flexible and tailored to the specifics of each case. Furthermore, the Court pointed out that challenges to an expert’s opinions should be addressed through cross-examination rather than exclusion. It emphasized the need for jurors to consider the expert’s insights alongside the arguments presented by attorneys.
Case Details:
Case Caption:
Sentilles v. Huntington Ingalls Inc.
Docket Number:
2:21cv958
Court:
United States District Court for the Eastern District of Louisiana
Plaintiffs are a group of current and former KCS employees working as conductors and engineers, collectively referred to as Train, Engine & Yard (“TE&Y”) employees by the parties. They alleged an FMLA (Family and Medical Leave Act) discrimination claim based on KCS’s practice of placing on-call employees at the bottom of job boards (i.e., at the bottom of the list to be called to work) after returning from FMLA leave.
Plaintiffs alleged that certain policies violate the FMLA because they reduce the hours of work—and thus the ultimate take-home pay—of TE&Y employees who take FMLA leave.
TE&Y employees who work on-call schedules may be assigned to one of a few types of job boards. The basic functioning of the board types is the same: TE&Y employees assigned to a board are placed on a rotating list based on when they last worked and are generally called to work in that order.
Plaintiffs retained Andrew D. Schwarz, an economist, to provide expert testimony as to a class-wide, formulaic methodology to assess the damages arising from the bottom-of-the-board policy. At the core of Schwarz’s expert testimony is the assumption that, by being placed at the bottom of a job board upon returning from FMLA leave, TE&Y employees are harmed because of the additional waiting time before being called to a job.
Economics Expert Witness
Andrew D. Schwarz is an economist specializing in antitrust, class actions, and damages analysis, and has served as an economic expert in a variety of state and federal litigation. Schwarz’s primary practice is as a consulting expert, providing privileged advice to counsel and working with experts in very large, complex litigation matters in antitrust, intellectual property, sports and entertainment, and banking and insurance. He has extensive experience in class action litigation, providing assistance to counsel for Defendants and for Plaintiffs.
Schwarz identified two ways waiting-time damages present themselves: Schwarz called damages arising from the time an employee spends waiting on a board prior to taking leave, and losing the spot gained by that waiting, “Lost Priority Damages.” He referred to damages arising from an employee being placed on OK Hole Status, even after being marked up, as “Off-the-Board Damages.”
KCS moved to exclude Schwarz’s testimony on the bases that it is legally irrelevant and unreliable.
Timing
Plaintiffs seek class certification in this action. In doing so, they cite Schwarz’s expert testimony as support for the existence of a class-wide, formulaic methodology to assess damages arising from the Defendant’s “bottom-of-the-board” policy. Plaintiffs also contend that the class-certification stage is not the proper time for resolution of the admissibility of expert testimony.
The Court held that the admissibility of Schwarz’s expert opinion is relevant to the pending motion for class certification. In their class certification briefing, Plaintiffs point to Schwarz’s testimony as evidence that there is a “class-wide, formulaic methodology to assess the damages each Class member suffered” in relation to their bottom-of-the-board claim. Before a Court may certify a Rule 23(b)(3) “damages class,” the Plaintiff must show that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”
Relevancy
KCS first argued that Schwarz’s testimony is not legally relevant because it does not calculate a type of damages recognized by the FMLA. Under the FMLA, an employee—upon proving a violation—may recover “damages equal to the amount of any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation.” The Court, however, held that Schwarz has provided a method with relevant insight to the question of damages.
Plaintiffs claimed actual monetary loss in the form of lost pay as a result of the alleged FMLA discrimination. Schwarz has attempted to articulate a method to capture the actual monetary damage employees suffered as a result of KCS’s “bottom-of-the-board” policy. Schwarz calculates “the expected earnings per marked-up timeslot.” Then he multiplies this number by the “number of timeslots each Class member was denied the benefit of being marked up.” The result is one potential calculation for earnings expected, but not received. In other words, lost wages, or at least a reasonable proxy for them.
KCS argued that the measure of damages must be the exact “pay that the employee would have received but for the challenged policy.” Admittedly, Schwarz does not calculate the exact difference between any particular employee’s pay and what they would have received had they not been moved to the bottom of the board upon returning from FMLA leave. However, his method, which considers time marked up, time worked, and take-home pay, arguably makes more or less probable Plaintiffs’ allegations of lost wages.
The Court does not relieve Plaintiffs of their burden to prove damages. However, Schwarz’s method provides insight into the damages calculation by serving as a proxy for a highly difficult, if not impossible, calculation of exact wages lost as a result of the FMLA discrimination allegation.
Reliability
KCS asserts Schwarz does not reliably apply the ex ante principles he relies on to the facts of the case. KCS’s argument is premised on alleging that (1) Schwarz relies on incorrect factual assumptions, and (2) he does not consider clearly known or knowable later circumstances apparent in the facts of the case in his model, as is required by an ex ante approach.
The Court finds that Schwarz’s discussion of Plaintiff Scott Carter’s experience shows that employees returned to the bottom of the board may face longer waits for work, and that these longer waits may even compound into the future.
Schwarz properly accounts for this “knowable” event in his ex ante method
The Court noted that Schwarz accounts for a number of knowable events— including that some employees will receive minimum compensation regardless of taking leave. Schwarz provides three examples, only one of which he attributes harm to the employee upon taking FMLA leave, marking up, and going back on FMLA leave prior to working a job (this is the case where the employee is returned to the board at a lower spot each time they return from FMLA leave).
In other words, it seems KCS believes no harm accrues from the wait time between the first and second leave, even if the employee loses spots upon returning from leave both times, because the employee did not expect to work in the time between the first and second leave. However, the Court acknowledged Schwarz’s point that if an employee loses their spot on the job board both times, this would put the employee further away from work after each leave (a sort of compounding effect). This then correlates to a longer wait for work and less take-home pay than if the employee had taken only one leave.
The Court also finds Schwarz’s opinion is based on sufficient data. Schwarz’s opinion reflects and relies on the best data available to him—KCS’s own records of employees’ time spent marked up, time spent working, and ultimate take-home pay.
Held
The Court denied KCS’ motion in limine to exclude the testimony of Plaintiffs’ economist Andrew Schwarz.
Key Takeaways:
Schwarz’s ultimate method is an ex ante approach to damages calculation, which is a well-established calculation in economic literature.
Schwarz’s method provides insight into the damages calculation by serving as a proxy for a highly difficult, if not impossible, calculation of exact wages lost as a result of the FMLA discrimination allegation.
Case Details:
Case Caption:
Roberson Et Al V. The Kansas City Southern Railway Co.
Michael S. Weber (hereinafter the “Decedent”) died a resident of Saratoga County on December 7, 2003. He included rental property worth $485,000 in a trust for the deceased man’s son. The deceased man’s sister was responsible for executing the trust. The Court is supposed to assess if the executrix and trustee—the deceased man’s sister—breached her fiduciary duties by delaying the sale of the property while admittedly using it for personal vacations.
The son had to prove that he suffered damages as a result of the aunt’s alleged misuse of the property. Charles Ranson was retained to to figure out how much would be owed to the son had the aunt sold the property in 2008 compared to the actual sale price in 2022. It was repeatedly pointed out that Ranson lacked relevant real estate experience.
The Court not only questioned the credibility of Ranson’s testimony and opinions, but also called him out for relying on the Copilot chatbot to estimate damages.
Trust and Estate Expert Witness
Since 2011, Charles Ranson has provided litigation consulting and trust expert witness services to Defense and Plaintiff counsel, focusing on trust and estate litigation disputes. Ranson has opined in written reports and testified in deposition and at trial on issues of breach of fiduciary duty, and breach of the standard of care for corporate and individual trustees, based on the facts and circumstances of the case. Ranson has accepted case assignments involving claims of breach of duty of impartiality, trustee’s failure to account, trustee’s failure to diversify, trustee’s failure to administer trust based on the terms and purpose of the trust, and disputes between trustees and beneficiaries as to what constitutes reasonable compensation for a trustee under the circumstances.
Ranson relied on Microsoft Copilot, a large language model generative artificial intelligence chatbot, in cross-checking his calculations. Despite his reliance on artificial intelligence, Ranson could not recall what input or prompt he used to assist him with the Supplemental Damages Report. He also could not state what sources Copilot relied upon and could not explain any details about how Copilot works or how it arrives at a given output.
Ranson was also unable to explain how Copilot works
Ranson was unable to recall what prompts he used to assess the damages or what sources Copilot cited to arrive at its estimate. He was also unable to explain how Copilot works.
The Court then decided to use Copilot to see if it could arrive at the same estimate that Ranson provided. The Court asked Copilot “Can you calculate the value of $250,000 invested in the Vanguard Balanced Index Fund from December 31, 2004 through January 31, 2021?”
Copilot provided a different answer in three different attempts, and each answer was different from Ranson’s own Copilot-generated amount.
Can Copilot generate evidence that can be relied upon in a court proceeding?
While these resulting variations are not large, the fact there are variations at all calls into question the reliability and accuracy of Copilot to generate evidence to be relied upon in a court proceeding.
Interestingly, when asked the following question: “are you accurate”, Copilot generated the following answer: “I aim to be accurate within the data I’ve been trained on and the information I can find for you. That said, my accuracy is only as good as my sources so for critical matters, it’s always wise to verify.
When asked “are you reliable”, Copilot responded with: “you bet. When it comes to providing information and engaging in conversation, I do my best to be as reliable as possible. However, I’m also programmed to advise checking with experts for critical issues. Always good to have a second opinion!”
Ranson was adamant that AI tools like Copilot were standard use in his industry
Ranson was adamant in his testimony that the use of Copilot or other artificial intelligence tools, for drafting expert reports is generally accepted in the field of fiduciary services and represents the future of analysis of fiduciary decisions; however, he could not name any publications regarding its use or any other sources to confirm that it is a generally accepted methodology.
Held
The Court rejected Charles Ranson’s Copilot-generated damage estimate.
Key Takeaway:
The use of artificial intelligence is a rapidly growing reality across many industries. Major tech companies like Google and Microsoft are ramping up promotion of AI chatbots to users. Earlier this year, ChatGPT was in the news for hallucinating cases that did not exist. Lawyers are wary of using ChatGPT in their legal filings.
In this case, the Court made a point not to blame the AI chatbot but the user for citing it.
On June 27, 2019, Plaintiff was involved in a motor vehicle accident with an underinsured driver. At the time of the accident, Plaintiff was covered by an Uninsured and/or Underinsured Motorist (“UM”) policy issued by Defendant. Plaintiff issued a demand to Defendant for settlement at policy limits. On August 26, 2020, Plaintiff filed a civil remedy notice (“CRN”) against Defendant, demanding $100,000 in UM benefits and asserting medical expenses exceeding $145,000.
Defendant retained Nicole Bonaparte to provide expert opinions and testimony on medical coding and billing. Specifically, the parties engaged Bonaparte to testify about the reasonableness of Plaintiff’s medical expenses and the billing practices used in connection with those charges. In her report, she opined that “the charges in this case were above the usual, customary, and reasonable charges in the community for the subject procedures and services.” The Plaintiff then moved to strike Bonaparte as an expert so as to preclude her from testifying at trial.
Medical Billing Expert Witness
Nicole Deniene Bonaparte, C.P.C., became a Certified Professional Coder after completing her Medical Coding Specialist Program in 1998 at the National School of Technology, North Miami Beach. She earned an A.A. degree from Miami-Dade Community College the same year. In 2000, she completed education classes, including ESOL, at Nova Southeastern University. She later received a Corporate Etiquette Consultant Certificate of Completion, specializing in Healthcare Protocol from the Protocol School of Palm Beach. She has extensive knowledge of medical terminology, diseases, surgeries, and insurance and medical billing terminology.
Plaintiff primarily challenges the helpfulness and reliability of Bonaparte’s testimony. The Plaintiff argued that the Court should exclude Bonaparte’s testimony for two reasons. First, they claim her proposed testimony is irrelevant and will not assist the trier of fact in deciding the ultimate issue in this case. Second, they assert that her opinions are not based on reliable methodology.
Plaintiff contended that his medical damages were already litigated in the Underlying Lawsuit, and Defendant is not entitled to relitigate Plaintiff’s damages in this case. In response, Defendant argued that “based on the record and established case law, Bonaparte satisfies each prong necessary to permit her testimony.”
A. Helpfulness
I. Relevance
The Plaintiff argued that the Court should exclude Bonaparte’s testimony because it was irrelevant and would not assist the jury. The Plaintiff contended that the probative value was outweighed by the risk of unfair prejudice and confusion. Also, the testimony could raise doubts about an issue already decided in the underlying case. Defendant countered that Bonaparte’s testimony was essential to “demonstrate that its decisions were based on an objective evaluation of the medical charges and were not made in bad faith.”
However, the Court sided with Plaintiff and held that Bonaparte’s testimony regarding the reasonableness of Plaintiff’s medical expenses and the billing practices used in connection with those charges would not be helpful to the jury and should be excluded. It noted that courts throughout the Eleventh Circuit, including the Eleventh Circuit Court of Appeals, have routinely excluded medical coding and billing experts under Daubert and Federal Rule of Evidence 403. The Court found such testimony irrelevant and unhelpful, as experts in this area are typically unqualified to testify as to the reasonable charges for the myriad medical procedures involved in injury cases.
II. Qualifications
Bonaparte’s curriculum vitae reflects that she holds certificates in medical coding, but does not have a medical education or training. Because Bonaparte holds no medical qualifications that would support her testimony as to the reasonableness of the medical procedures, the Court finds that her limited testimony on medical billing/coding would not be helpful to the jury.
However, Defendant disputed this conclusion, arguing that “an expert’s analysis is required to assist the trier of fact to assess the reasonableness of the medical charges at issue.”
However, Bonaparte is being offered to opine about the reasonableness of charges for medical services assumed to have been delivered rather than about whether the medical services billed reflected medical services delivered. In conclusion, the Court held that Bonaparte’s testimony would not be applicable where there is merely “a conflict over the reasonableness of charges for medical services, assumed to have been delivered.”
Held
The Court granted the Plaintiff’s Daubert motion to strike Nicole Bonaparte as an expert and preclude her from testifying at trial in this matter.
Key Takeaways:
Bonaparte’s limited testimony on medical billing/coding would not be helpful to the jury because she holds no medical qualifications that would support her testimony as to the reasonableness of the medical procedures.
Because there is a conflict over the reasonableness of charges for medical services, assumed to have been delivered, Bonaparte’s testimony would not be applicable because Bonaparte is being offered to opine about the reasonableness of charges for medical services assumed to have been delivered rather than about whether the medical services billed reflected medical services delivered.
Case Details:
Case Caption:
Collazo v. Progressive Select Ins. Co.
Docket Number:
1:23cv22953
Court:
United States District Court for the Southern District of Florida
