VEC, Inc. accused Joyce Electrical Inc. and Hudson Insurance Co. of breaching a building contract between the parties, after Williams Field Service Company LLC awarded VEC a contract to build an electrical substation and distribution line.
After soliciting bids for subcontractors to do the electrical work on the project, VEC hired Joyce. Joyce eventually fell behind on their contractual obligations, prompting VEC to prepare a recovery plan. Joyce allegedly failed to meet the obligations outlined in the recovery plan as well, and allegedly abandoned the project. As a result, VEC had to have other contractors finish the unfinished work. Delays in the project caused VEC to incur $280,000 in liquidated damages to Williams.
Accordingly, VEC filed this action against Joyce and Hudson to collect their losses on the project, which include liquidated damages paid to Williams, additional costs paid to subcontractors to complete Joyce’s obligations, increased overhead and job costs, and lost profits, which total $1,403,035.40 plus interest.
George P. Ellis is an experienced Senior Construction Consultant who provides Construction Consulting and Expert Witness services to Contractors, Subcontractors, Owners, Architects, Engineers, Developers, Insurance Companies, Attorneys, etc. for projects located throughout the U.S. Ellis’ Construction Consulting and Expert Witness Services expertise includes Critical Path Method (CPM) Schedule Analysis, Delay and Disruption Analysis, Damages Computation and Analysis, Lost Labor Productivity Analysis, Change Order Preparation and Analysis, Defective Work Claim Review and Analysis, Analysis of Work Scope Disputes, Analysis of Project Impacts from Differing Site Conditions, etc.
Defendants sought to preclude the expert testimony and report of Ellis, arguing that he is not qualified to calculate damages, that his evidence is unreliable, and that his evidence does not fit the issues of the case.
Qualifications
First, Defendants averred that Ellis “had no qualifications to opine on damages.”
It was worth noting that Ellis works on projects ranging from consulting to the tabulation of damages for litigation in the construction industry. Ellis also reports extensive experience tabulating construction damages concerning power plants. Based on his qualifications, the Court found Ellis a qualified expert in construction management and damage calculation for this case.
Reliability
Defendants next submitted that the Report is “devoid of any actual analysis, is full of misrepresentations of the discovery record, and is rife with impermissible conclusions of law.” Additionally, Defendants contended that the opinions of Ellis contain no methods or procedures and are unreliable.
The Court held that the the Report’s analysis relies heavily on Ellis’s practical experience. Ellis extensively analyzed the record’s construction documents to reach his conclusions. Additionally, Ellis buttresses some of his arguments with independent data, including weather data.
The Court concluded that Ellis used objective grounds to come to his conclusions. Any factual discrepancies do not defeat the reliability of Ellis’ expert evidence, as Defendants will have the ability to cross-examination Ellis on these issues at the time of trial.
Fit
Finally, Defendants submitted that “Ellis’ opinions do not fit the case and will not help the factfinder understand any evidence or decide any fact in dispute.” Basically, Defendants argued that the case is too straightforward for expert interpretation and that his “net opinions, or ipse dixit, should be excluded from evidence because they “would be completely unhelpful or harmful to the trier of fact.”
The Court found that the issues in the case were sufficiently industry-specific to allow an expert to aid the trier of fact. Due to his practical experience and thorough report, Ellis’s expert evidence fit the issues in this case. However, to the extent Ellis’s conclusions ventured into legal conclusions, the Court proceeded to exclude them. Otherwise, Ellis’s evidence sufficiently fits the issues of this case under Federal Rule of Evidence 702.
Held
The Court granted in part and denied in part the Defendants’ motion in limine to preclude the expert testimony of George P. Ellis.
Key Takeaways:
Daubert factors such as peer review, publication, and potential error rate “simply are not appliable, when the reliability of testimony from a practical expert depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.”
The practical experience expert’s evidence can fit the issues of the case by utilizing the available facts and his practical experience to help the trier of fact navigate complex industry-specific matters.
Plaintiff Deana Hosie alleges that, on November 17, 2017, while dining at the Defendant Omni Hotels Management Corporation’s hotel restaurant, she tripped and fell over a box-shaped object on the floor, causing her serious injuries.
After disclosing expert Charles DePaolo, M.D., the Defendant indicated that DePaolo would not provide a report until “after his forthcoming independent medical examination of the Plaintiff.”
The Plaintiff declined the Defendant’s request to undergo an independent medical examination.
On June 13, 2024, the Plaintiff filed the present motion, seeking to exclude the expert testimony of DePaolo.
Orthopedic Sports Medicine Expert Witness
Charles DePaolo, MD, is a board-certified orthopedic surgeon and sports medicine physician who specializes in joint reconstructive surgery, direct anterior approach total hip arthroplasty, arthroscopic rotator cuff repair, cartilage preservation procedures, osteochondral transfer procedures and the use of platelet rich plasma (PRP) and stem cells. His goal is to relieve pain and return function to his patients’ everyday life.
The Defendant retained DePaolo to offer testimony regarding the “Plaintiff’s past, present, and future medical condition, including . . . whether such pain or limitation is connected to the injuries” the Plaintiff suffered in this case.
When the deadline passed on January 8, 2024, no report was forthcoming. Since the Rule 26 requirements were not met, the Court decided to exclude the testimony of DePaolo unless the Defendant could show that the failure to produce a report was substantially justified or harmless.
Plaintiff did not provide an expert report for the Defendant to respond to
First, the Defendant argued that its nondisclosure was substantially justified because the Plaintiff did not provide an expert report for the Defendant to respond to. A party, however, need not file an expert report for a treating physician. Here, the Plaintiff disclosed that her treating physician would testify at trial. The Court held that the Plaintiff did not need to disclose an expert report, and the Defendant was not substantially justified in failing to disclose its own expert report.
DePaolo needed to conduct a medical examination of the Plaintiff
Second, the Defendant asserts that its nondisclosure was substantially justified because DePaolo needed to conduct a medical examination of the Plaintiff, arguing that a review of the Plaintiff’s medical records “did not provide a sufficient basis for him to serve a report that would satisfy Rule 26(a)(2)(C).” In his Order denying the Defendant’s motion to compel an independent medical examination, the Magistrate Judge emphasized the Defendant’s failure to (1) timely and adequately pursue the Plaintiff’s medical records; (2) provide an expert report from DePaolo; (3) seek an extension of its deadline to disclose DePaolo’s report; and (4) move to compel an independent medical examination until March 1, 2024, nearly two months after the Defendant’s expert disclosure deadline. Further, since the Magistrate Judge entered his order denying the Defendant’s motion to compel in April, the Defendant has not supplemented or corrected its initial expert disclosure.
The Court held that the Defendant’s failure to disclose a report from DePaolo is not substantially justified due to the lack of an independent medical examination.
Court can “cure” any surprise caused by the Defendant’s failure to provide a report
The Defendant argued that allowing DePaolo to testify would be harmless to the Plaintiff.
The Defendant claimed that the Court can “cure” any surprise caused by the Defendant’s failure to provide a report by permitting DePaolo to listen to and “rebut” the Plaintiff’s treating physician’s trial testimony, then briefly pausing the trial to allow the Plaintiff time to formulate a cross examination.
The Court held that the Defendant’s proposal would minimize the Plaintiff’s opportunity to “adequately prepare” for DePaolo’s testimony, leaving the Plaintiff surprised and unequipped to conduct a sufficient cross-examination. This would not be harmless to the Plaintiff; it would disrupt the trial and unfairly surprise the Plaintiff without providing a sufficient cure.
Finally, the Defendant argued it is important for DePaolo to testify to give the jury “a more complete understanding of the Plaintiff’s injuries” and for the Defendant to “more fairly defend itself against the Plaintiff’s claim for significant damages.” The Court held that this is precisely the kind of information that DePaolo could have and should have rebutted in an expert report. The Defendant has had the Plaintiff’s medical records and has known of the Plaintiff’s claims for damages for some time. The fact that the Defendant has failed to provide a timely rebuttal to the Plaintiff’s evidence does not justify an ambush of the Plaintiff’s treating physician at trial.
Held
The Court granted the Plaintiff’s motion to exclude the expert testimony of Charles DePaolo.
Key Takeaway:
The Court held that the Defendant’s failure to provide a report from its expert is not substantially justified. Furthermore, disrupting the trial to formulate an expert opinion on the fly—without giving the Plaintiff time to analyze the expert’s opinion, depose the expert, and prepare a cross examination—would not be harmless.
Case Details:
Case Caption:
Hosie V. Omni Hotels Management Corporation
Docket Number:
1:22cv265
Court:
United States District Court for the Western District of North Carolina, Asheville Division
Domski filed this lawsuit on August 11, 2023, alleging that she was wrongfully terminated from her employment by defendant Blue Cross Blue Shield of Michigan after she refused to comply with the company’s COVID-19 vaccination policy. Domski worked for Blue Cross Blue Shield from March 10, 2008 until her termination on January 5, 2022, most recently as an IT Process Specialist II.
She submitted a written religious exemption request, which generally cited a belief that taking the vaccine would be immoral because “[t]he three COVID vaccines were ether developed or tested using fetal cells that originated in abortion.”
The Defendant interviewed Domski regarding her religious beliefs but denied her request for an accommodation shortly thereafter, stating that “she did not meet the criteria for an exemption due to a sincerely held religious belief, practice, or observance.”
On July 5, 2024, the Plaintiff filed a witness list indicating that Dr. Gerald A. Shiener would provide expert testimony regarding the Plaintiff’s psychological damages, and Jeffrey Bagalis would provide expert testimony as to the Plaintiff’s economic damages. The Plaintiff served Bagalis’ report on the Defendant on July 18, 2024. Generally, he opined that the Plaintiff’s economic damages exceed $1.2 million. At oral argument, the Plaintiff stated that she had furnished a report from Shiener on September 12, 2024.
The Defendant asked the Court to exclude the testimony of Bagalis and Shiener because the disclosures were woefully late. Blue Cross maintained that the Plaintiff’s expert disclosures came as a surprise because she did not list either expert on her initial disclosures or include them in her responses to its discovery requests, and Blue Cross did not have an opportunity to depose them during the discovery period.
Psychiatry Expert Witness
Dr. Gerald Shiener, MD, is a board-certified psychiatrist with over 40 years of experience. He is also an Assistant Professor in the Department of Psychiatry at Michigan State University.
Jeffrey Bagalis is the Managing Member of Accurity Group, LLC (“Accurity”), a Certified Public Accountant (CPA), Accredited in Business Valuations (ABV), and Certified in Financial Forensics (CFF) with over 20 years of experience providing a wide range of professional service.
The Court held that the Plaintiff’s expert disclosures in this case plainly were deficient. Under the scheduling order, Domski was obligated to serve her Rule 26(a)(2)(B) and (C) disclosures on or before December 7, 2024. Neither of her proposed expert witnesses was disclosed formally until July 5, 2024, more than half a year past the deadline.
The Plaintiff’s disclosures also were substantively deficient. Because Shiener and Bagalis were retained experts, Rule 26(a)(2)(B) required Domski to furnish a report containing, among other things, a complete statement of the expert’s opinions and their basis, “the facts or data considered by the witness,” a statement of the expert’s experiences and qualifications, and information about the expert’s compensation. She did not provide a report for Bagalis until July 18, 2024 and did not provide a report from Shiener until after the briefing was completed on this motion.
Citing Rule 26(a)(2)(D)(i), the Plaintiff appears to argue that her expert disclosure was timely because that rule establishes a deadline of 90 days before trial. She forgot, however, that this is a default rule, which only applies “[a]bsent a stipulation or a court order.”
Surprise
The Plaintiff argued that its expert disclosures did not surprise the Defendant for two reasons. Initially, she said that her responses to the Defendant’s interrogatories in November 2023 put it on notice of her intention to seek expert testimony regarding her economic and psychological damages. She added that her attorney’s February 4, 2024 email regarding expert discovery in the other cases the attorneys were managing together should have alerted him to her intentions in this case.
Despite the Plaintiff’s representation about her intentions, it is uncontested that she never disclosed information about any expert by the December 7, 2023 deadline. By its own terms, the Plaintiff’s email would seem to exclude Domski’s case because the discovery deadline had already passed, and no dispositive motions had been filed. The Court expressly stated that the scheduling order in this case trumps any inconsistent provision of the consolidation order governing the other cases.
All should have been aware that this case has its own scheduling order and deadlines for expert disclosure, so nothing about the email necessarily alerted the Defendant that the Plaintiff intended to use Bagalis and Shiener in this case.
Therefore, the Court held that these two announcements did not minimize the effect of the Plaintiff’s late disclosures on this case; it was reasonable for the Defendant to believe that the Plaintiff did not anticipate using expert testimony in this matter. And even if the Defendant was informed that expert witnesses might be part of the Plaintiff’s evidentiary presentation, that information was not much use without the detail required by Rule 26(a)(2)(B).
Ability to Cure Surprise and Disruption to Trial
The Plaintiff’s argument that the surprise can be cured takes two paths. First, she says that it was the Defendant that “manufactured” the surprise by not moving to compel the production of the missing expert reports and by not responding to her attorney’s February 4, 2024 email containing her counsel’s “plan.”
However, Rule 26(a)(2) places the disclosure obligation on the party offering the evidence, in this case, the Plaintiff. The Defendant was under no obligation to seek the production of a report it did not know existed and had no reason to suspect would be forthcoming, and the February 4, 2024 email contained no indication that it applied to this case. The Defendant only became aware of the Plaintiff’s intention to use experts for this case in July and filed a motion to exclude these untimely-disclosed witnesses shortly thereafter.
The Plaintiff argued that there is ample opportunity to cure any surprise and only a small likelihood of disrupting the trial date because she can make her experts available for depositions before the trial, or the trial date can be adjusted.
The Court disagreed. For one, taking these depositions is only one step in the Defendant’s likely trial preparation. It is reasonable to anticipate that the Defendant would want to find its own rebuttal experts, provide the factual materials to them, generate reports, and prepare them for trial. At oral argument, Plaintiff’s counsel acknowledged that Schiener actually examined the Plaintiff before completing his report. Presumably, a defense expert would want to do the same. And the Plaintiff forgets that compressing the schedule as she suggests would deprive the Defendant of mounting a Daubertchallenge to the expert witnesses’ testimony.
Certainly, issuing a new scheduling order would cure all of these difficulties. But the Plaintiff must demonstrate good cause for that relief.
Importance of the Evidence
Both sides seem to agree that the testimony of Bagalis and Shiener relates only to the question of damages. Excluding Bagalis and Shiener as witnesses will not make or break the Plaintiff’s liability case.
In this case at least, the Court held that the unimportance of the evidence, when measured against the burden of providing the Defendant an opportunity to take expert discovery and procure rebuttal experts in an otherwise straight-forward case, weighs against the Plaintiff.
Non-Disclosing Party’s Explanation
The Plaintiff’s explanation for failing to disclose her expert reports by the ordered deadline is unclear, which, perhaps, is at least partially attributable to her apparent belief that the reports were submitted timely. The Plaintiff seems to view her lapse within the context of the other ongoing lawsuits against the Defendant being managed by her counsel.
The Court held that this explanation is unpersuasive; it confounds the tasks of litigating wholesale multiple similar claims with producing discovery that is inherently individualized.
And each of those Plaintiffs no doubt will present their own evidence of damages. Domski’s case stands on its own and is subject to its own scheduling order. As the Court has previously reminded the parties, “counsel should have evaluated whether it was prudent to take on this workload if they were not prepared to litigate each case to completion by the dates established in the Court’s scheduling order.”
Held
The Defendant’s motion to exclude the Plaintiff’s proposed expert witnesses Gerald A. Shiener and Jeffrey Bagalis is granted.
Key Takeaway:
Because of the Plaintiff’s late disclosure, the Defendant would be deprived of the opportunity for an evidentiary challenge under Evidence Rule 702 and probably would not be able to marshal rebuttal evidence in a measured and non-rushed manner, which the scheduling order was intended to avoid.
The Plaintiff failed to comply with the deadlines for disclosing expert witness information, and she has not shown that the failure was substantially justified or harmless. The mandatory preclusion sanctions in Rule 37(c)(1) apply here.
This case arises from a high-speed, single vehicle collision into a tree. After the collision, the vehicle caught fire and exploded. Plaintiff Jade Burch was the front seat passenger in the vehicle.
As a result of the collision, Burch broke her pelvis, femur, tibia, and seven ribs. She required emergency leg surgery. Burch also suffered burns on her left foot, which required a skin graft. To date, Burch has incurred over one million dollars of medical expenses and will have at least one more surgery in the future.
Defendant hired Marilyn Pacheco to give testimony “regarding the reasonableness of medical charges for medical services provided.
Pacheco opines that “the $900,343.05 in billed charges on or after 10/25/21 is excessive and the reasonable value of the past medical care received by Plaintiff is $429,553.74.” Plaintiff argued Pacheco’s opinions must be excluded because she is not qualified to offer them, they are unreliable and unhelpful to the trier of fact under Fed. R. Evid. 702 and Daubert and its progeny, and her opinions impermissibly inject collateral source into this case under Georgia law.
Medical Billing Expert Witness
Marilyn Godoy Pacheco has over 30 years of experience in establishing medical charges, medical billing, collections, pricing, and third-party payer contract negotiations and has been qualified and has testified as an expert forensic medical bill auditor in state and federal trials and arbitrations on approximately 638 occasions. She has 18 years of experience managing the medical billing department of a medical practice with 10 physicians; became a Certified Professional Coder from the American Academy of Professional Coders in 2012; founded E&M Billing Services, a medical billing service for multiple independent physician practices filing 1,000 claims per month, in 2004; been the director of Miller Children’s Subspecialty Group since 2005 where she provides oversight of the medical billing department, contract negotiations, and credentialing of 26 specialty medical groups with 90+ physicians; and since 2012, she has provided expert testimony for medical billing and auditing services for Elevate Services, Inc.
Plaintiff first challenged Pacheco’s qualifications, arguing she is not qualified to offer opinions about what an Augusta hospital (or any Georgia hospital) should have charged for Plaintiff’s medical treatment. Plaintiff argued while Pacheco may be qualified to assign the right billing codes to the medical services provided at Doctor’s Hospital, she is not qualified to use those codes to determine a reasonable fee in this case. However, the Court held that the Defendant has met its burden of demonstrating Pacheco is qualified as a medical billing expert.
Plaintiff pointed out that Pacheco held only a high school diploma and lacked formal training in finance or economics. Moreover, she had no professional experience with pricing medical procedures and services in the state of Georgia. Despite this, Pacheco’s extensive experience in medical billing qualified her as an expert. She asserted that no specific academic degree existed for medical billing professionals, who do not need to be physicians or healthcare providers. As a medical billing expert she has specialized knowledge on industry-specific requirements “including ICD-9, ICD-10, CPT, HCPCS, APC, DRG, and NDC coding, rules, and regulations related to each code set and regional/geographic pricing.”
B. Pacheco’s Methodology and Reliability
The Court found Pacheco’s methodology is sufficiently reliable for admissibility, and the weaknesses in the data she relies on in conducting her methodology is appropriately addressed on cross examination. To form her opinions, Pacheco used a multi-step process to review and audit the medical charges to determine the reasonable value of the services provided.
First, Pacheco analyzed Plaintiff’s past medical records, billing data, and medical cost benchmarking resources over the period of Plaintiff’s treatment in Augusta.
Second, she applied geographic-specific pricing to determine the reasonable marketplace value for the same services within the same community within the same year.
Third, she conducted a market analysis of the local medical community for similar services based on published data “to identify additional evidence of reasonable marketplace value and further validate the results of the audit.”
Plaintiff argued Pacheco’s methodology simply consists of plugging codes into databases from which she picks the “reasonable” value for the medical services; she cannot explain the origin of the data in these databases; she did no independent research in the Augusta or Georgia healthcare market to determine what hospitals charge for similar services; and therefore neither the Court nor the jury can test whether the databases are accurate and reliable. But these arguments are appropriately addressed on cross examination.
Moreover, the methodology and data sources Pacheco employed have been peer reviewed in 2013 by Gerard Anderson, Ph.D., a widely known expert in the field of healthcare services pricing, and again in 2023 by a panel of experts including Professor Emeritus Gerald F. Kominski, Ph.D,; Orthopedic Surgeon Stewart L. Shanfield, M.D.; QA Auditor and Coder Vivian Washington, CPC, COC, CPMA, CRC, CPC-1; and Healthcare Administrator Andrew Bowen who found the methodology “sound, reliable, and applied appropriately using industry standard data.”
C. Helpfulness to the Jury
The Court is also unpersuaded by Plaintiff’s contention that Pacheco’s opinions are not helpful to the jury. The average lay person does not know what hospitals charge for healthcare services or understand how they generate the prices. Pacheco’s opinions address coding issues and whether the correct billing codes were applied, removing charges for improper packaged services, which is beyond the understanding of the average lay person and will assist the jury in determining whether Plaintiff’s medical expenses are reasonable.
D. Collateral Source Rule
The collateral source rule bars the Defendant from presenting any evidence as to payment of expenses of a tortious injury paid for by a third party and taking any credit toward the Defendant’s liability and damages for such payments.” But the Eleventh Circuit has rejected this challenge to similar medical billing experts, explaining “Defendants were properly allowed to argue that medical charges were unreasonably high,” and such expert testimony “did not violate the collateral source rule.” Here, Pacheco does not opine that the medical expenses should be reduced by insurance payments, write-offs, or write-downs.
The Court held that her testimony as to how the charged fees compare to the market is relevant to the reasonableness inquiry and does not “purport to present evidence that a third party paid for or should pay for the expenses of the tortious injury allegedly caused by Defendant’s negligence; accordingly the collateral source rule does not apply.”
Held
In conclusion, the Court denied Plaintiff’s motion to exclude the testimony of Defendant’s medical billing expert witness, Marilyn Pacheco.
Key Takeaway:
Not only is Pacheco qualified as a medical billing expert, she used a multi-step process to review and audit the medical charges to determine the reasonable value of the services provided followed by a detailed analysis of Plaintiff’s past medical records, billing data, and medical cost benchmarking resources over the period of Plaintiff’s treatment in Augusta. Moreover, her opinions address coding issues and whether the correct billing codes were applied, removing charges for improper packaged services, which is beyond the understanding of the average lay person and will assist the jury in determining whether Plaintiff’s medical expenses are reasonable.
Case Details:
Case caption:
Burch v. Cracker Barrel Old Country Store, Inc.
Docket Number:
5:22cv316
Court:
United States District Court for the Middle District of Georgia, Macon Division
This is an action for Jones Act negligence, unseaworthiness and unpaid maintenance and cure brought by Eric Ward. On or about December 13, 2021, Ward joined the Yacht as the Electro Technical Officer as part of the Yacht’s engineering department in Miami Beach, Florida at a private residence.
On night of December 23, 2021, the Yacht collided with the Tropical Breeze, a gasoline tanker (“Tropical Breeze”), off the coast of the Bahamas due to the Captain’s negligence. Plaintiff Ward was working on the Sky Lounge aft of the Bridge with the charter guests, assisting them in connecting to the Yacht’s onboard entertainment systems. During the collision, Plaintiff Ward was thrown off his feet and collided with a wall, causing his injuries. The Defendant Yacht and its owner, Utopia refused to pay and delayed payment for the medical expenses as part of Plaintiff Ward’s cure benefit as a seaman.
The Defendants filed a motion to exclude the testimony of Ira Morris and Oscar Padron for failure to meet the minimum standards of expert testimony.
Vocational Rehabilitation Expert Witness
Ira Morris performs vocational evaluations to identify occupational options and determine earning capacity, as well as assessments to evaluate the loss of earning capacity resulting from an injury or illness. As a Life Care Planner, he develops plans to identify future needs, including medical, therapeutic, adaptive equipment, and ancillary or residential services, resulting from an injury or illness. He provides expert witness testimony on these issues, and his opinions have been accepted in state and federal courts, in civil, family law, and state workers’ compensation matters.
Oscar Padron holds multiple professional designations and qualifications in the fields of accounting, financial planning, and valuation. His credentials include Certified Public Accountant, Certified Financial Planner and Certified Valuation Analyst. He has earned a B.B.A. in Accounting (1980) and an M.S. in Finance (1989), both from Florida International University. Padron is currently a partner at Turner & Associates, LLP, with extensive experience in litigation support, economic valuations, and forensic accounting.
Ira Morris is the Plaintiffs’ vocational rehabilitation and life care plan expert, and Oscar Padron is the Plaintiffs’ expert on economics. The Defendants argued that Ira Morris used an unreliable methodology because he “relied heavily on Ward’s accounts of the facts pertaining to them without independently verifying the same when formulating his life care plan.” Moreover, he relied on his own summaries of private telephone conversations he had with treating medical professionals in formulating his opinions, though he admitted he lacks the medical knowledge to evaluate the medical findings.
With respect to Morris, the Plaintiffs argued that his methodology was reliable because it adhered to the Standards of Practice for Life Care Planners, a peer-reviewed manual prepared by the International Academy of Life Care Planners, and the RAPEL Method, also a peer-reviewed and widely accepted method. The Plaintiffs also noted that Morris: (1) relied only on materials that were in his possession and obtained through interviews; (2) used data from industry-specific sources in assessing Ward’s loss of earning capacity; and (3) relied on health recommendations from the parties’ independent providers that were provided with “signed verifications attesting to the summaries of information and analyses they provided in support of Morris’ opinions and conclusions.”
Plaintiffs also disputed various contentions made by the Defendants. The Plaintiffs noted that Morris relied on market data in addition to Morris’ contract; Morris did not provide causation opinions; Morris’ reports do not include paid cure expenses or expenses incurred after Ward reached their Maximum Medical Improvement; collateral sources such as Medicare are not considered when making life care plans; Ward’s tax returns were not necessary because Morris relied on labor market data.
Oscar Padron
As for Oscar Padron, the Defendants alleged that his methodology is likewise unreliable because it is based almost entirely on Morris’ conclusions and it was prepared in less than a day. According to the Defendants, Padron admitted in his deposition that he did not independently verify any information regarding Ward complaints because it was “beyond the scope of what he was asked to do,” and “he simply accepted and quantified the opinions of Ira Morris.”
With respect to Padron, the Plaintiffs argued that when quantifying Morris’ conclusions, Padron used widely accepted standard practices such as using the applicable interest rates, growth rates, discount rates, inflation rates, and life expectancy data. He also relied on reputable publications, including those that were peer-reviewed. Moreover, his methodology was consistent with the standards of the Association of Forensic Economics and the American Institute of CPAs.
Held
The Court denied the Defendant’s Daubert motion to exclude the testimony of Ira Morris and Oscar Padron. The Court found that the experts were qualified and their methodologies were reliable. Therefore, their testimony will be helpful to the jury. The Defendants may cross-examine the experts on any perceived deficiencies.
Key Takeaway:
The Defendants did not dispute that the experts are qualified. They contended that Morris should be precluded from providing any medical or liability testimony. They maintained that Morris used an unreliable methodology because in addition to the reasons cited in the original motion, he relied on an incomplete record.
As to Padron, the Defendants maintained that his methodology was unreliable (and therefore not helpful) because he exclusively relied on Morris’ unreliable findings.
However, the Court found that the experts were qualified and their methodologies were reliable.
Plaintiff, Ansur America Insurance Company, sued Defendants, James A. Borland and Quinn, Johnston, Henderson & Pretorious, Chtd., an experienced defense lawyer and his law firm, for alleged legal malpractice in handling a complex product liability case in St. Clair County, Illinois. Plaintiff alleged that Defendants failed to meet the standard of care in representing Plaintiff in a tripartite relationship, where Plaintiff insured a company that sold the underlying plaintiff a shower stool that broke, causing her to fall and dislodge hardware recently placed by a surgeon in her spine.
Defendant filed motions to excude the opinions of Plaintiff’s experts Falak Shah and Sari Montgomery.
Structural Engineering Expert Witness
Falak Shah, Ph.D., P.E., C.W.I., is a managing engineer in Exponent’s Mechanical Engineering Practice with experience assessing the performance, mechanical integrity, and fitness-for-service of structural and mechanical systems. His experience involves leading investigations of different structures, products, and mechanical systems in a broad variety of applications and a wide range of materials. He is a licensed professional engineer in the state of Illinois and is a certified welding inspector (C.W.I.), a certification from the American Welding Society (AWS). Shah has a Ph.D. and M.S. in civil engineering (with a specialization major in structural engineering) from the Georgia Institute of Technology and a B.S. in civil engineering from the University of Florida. He has completed advanced coursework in and has experience with the analysis and design of a variety of materials, including wood, metals, and composite materials. In addition to his degrees, licensure, and other certifications, he has a multidisciplinary certificate in the mechanical properties of materials.
Sari Montgomery received her B.A. at the University of Chicago and her J.D. at Loyola University Chicago. Since her graduation in 1994, she has worked as Litigation Counsel for the Illinois Attorney Registration and Disciplinary Commission (“ARDC”) and was ultimately promoted to Senior Litigation Counsel. In those roles, she performed hundreds of investigations and prosecuted over 50 disciplinary cases before the ARDC’s Hearing Board. She also trained ARDC counsel and staff.
Since 2010, Montgomery has been employed at Robinson, Steward, Montgomery & Doppke LLC, where she has represented attorneys in disciplinary investigations, hearings, and appeals before the ARDC and the Illinois Supreme Court, represented judges before the Illinois Judicial Inquiry Board and bar applicants in character and fitness matters. She has provided ethics advice and opinion letters to law firms, attorneys, government agencies and law-related businesses, and has served as an expert witness in legal malpractice and fee litigation. She has served as an adjunct professor teaching legal ethics and professional responsibility, has served on numerous committees and boards, and has authored numerous publications.
Shah was requested to “analyze the mechanical cause or causes of the failure” of the shower stool.
Defendants argued that Shah’s opinions are irrelevant and unreliable in that he provides only an outline of untested hypotheses in his June 14, 2023 report, such that his analysis is incomplete and cannot be analyzed through any relevant means. They further argued that Shah provides failed to eliminate possible causes related to the failure of the shower stool.
Shah’s report and opinions are based on his visual inspection of the shower stool in April 2023, and a review of documents provided. The parties had agreed in advance of Shah’s inspection that the stool could be photographed, videoed, examined, and measured. Whether any additional testing would take place was left to be determined.
Shah opined that a visual examination alone did not provide him with sufficient information to determine the mechanical cause or causes for the stool’s failure to a reasonable degree of engineering certainty. He further opined that there are three categories under which the mechanical cause or causes could fall, but additional analyses beyond merely visual inspection would be required to assess each of those.
While Shah didoes not identify the mechanical cause for the stool’s failure, the Court finds that his opinions and conclusion that a visual inspection alone could not determine the mechanical cause or causes of the stool’s failure are directly relevant to the issue of whether the applicable standard of care required Defendants to retain an engineering expert to conduct the analyses necessary to make the determination.
Sari Montgomery
Defendants sought to exclude Montgomery’s opinions that Defendants violated the standard of care by:
(1) Failing to issue a litigation hold letter at the beginning of the litigation;
(2) Failing to conduct jury verdict research;
(3) Failing to timely advise Ansur and Signature of conflicts of interest over the law barring insurance for punitive damages; and,
(4) Failing to inform Ansur and Signature that there could be a $10 million punitive damage award in addition to a $1.35 million award in compensatory damages, one month before the trial, when prior liability estimates had exposure not exceeding $325,000.
Montgomery is not qualified to render opinions in this case regarding the standard of care because she lacks the experience to qualify her as an expert product liability litigation attorney
Defendants also pointed out that Montgomery has never represented a product manufacturer nor handled a case involving a personal injury or consumer products, has never represented a client who has been alleged to be liable for punitive damages apart from sanctions, and has not handled a case in St. Clair County, Illinois.
As a licensed attorney who had represented attorneys in disciplinary investigations, hearings and appeals, both for the Illinois Attorney Registration and Disciplinary Commission and in private practice, the Court held that Montgomery has the requisite background and experience to render opinions regarding the standard of care Defendants owed to Plaintiff based on the applicable ethical requirements and rules of professional responsibility.
Montgomery’s opinions regarding Defendants’ requirement to give coverage advice to Ansur and the insured company in the underlying case violate the Rules of Professional Conduct
Defendants contended that if they had disclosed a conflict of interest between Ansur and the insured, Signature, Ansur would have been handed a significant coverage defense, thereby greatly harming Signature and violating Rules of Professional Conduct 1.6(b)(7). They also argued that an attorney retained by an insurance company to defend its insured owes a duty to the insured not to disclose facts to the insurer that might prejudice the insured’s rights in a potential coverage dispute with the insurer, as set forth in the Illinois State Bar Association (“ISBA”) Advisory Opinion, dated July 17, 1992.
In the instant case, Ansur alleged that at no time after the filing of the motion seeking punitive damages in the underlying case, did Defendants advise Ansur or Signature that there was a potential conflict of interest between them because punitive damages would not be covered under Signature’s policy.
Montgomery’s report sets forth her opinions regarding Defendants’ ethical duties and that a breach occurred when Defendants did not disclose the existence of a resulting conflict of interest between Ansur (the insurer) and Signature (the insured) on the issue of punitive damages. The Court held these opinions to be reliable, and directly relevant to Ansur’s claims and the issues raised in this case.
Defendants also argued that Montgomery’s opinions regarding a conflict of interest on coverage and punitive damages conflict with an Illinois State Bar Association Advisory Opinion and are therefore impermissible.
However, the ISBA opinion itself stated “While the Opinions express the ISBA interpretation of the Illinois Rules of Professional Conduct and other relevant materials in response to a specific hypothesized fact situation, they do not have the weight of law.”
Montgomery’s opinions regarding Defendants’ communications to Ansur about the liability and damages exposure in the underlying case should be barred because she doesn’t have education, training, or experience in evaluating a product liability case
Defendants asserted that her opinions, claiming Defendants violated Rule 8.4(c) and were dishonest and deceitful, are “off base” because she has never handled a product liability case and would not know whether rapid changes in the case as it approaches trial require different or additional reporting.
The Court held that Montgomery has the requisite background and experience to render opinions regarding the standard of care Defendants were required to meet based on the applicable ethical requirements and rules of professional responsibility. Specific experience with respect to product liability litigation is not required in this case.
Finally, Defendants argued that Montgomery’s opinion regarding Defendants’ failure to conduct appropriate jury verdict research should be barred because she lacks experience in product liability defense, cannot opine how a product liability defense lawyer determines exposure, has never done product liability defense jury verdict research, and did not conduct her own jury verdict research before rendering her opinion. On this point, the Court agreed. Montgomery failed to provide a basis for this particular opinion, and her background and experience alone do not suffice.
Held
The Court denied Defendants’ motion to exclude the expert testimony of Falak Shah.
The Court granted in part and denied in part Defendants’ motion to exclude the expert testimony of Sari S. Montgomery.
Key Takeaway:
Defendants’ argument that Shah’s opinions are unreliable because they do not address each of the Daubert factors fails as well. Here, Shah’s methodology and analysis were appropriate given the issues and under the circumstances presented. He performed a visual inspection as agreed before opining that he could not determine the cause the stool’s failure solely based on that type of inspection, which is an issue presented in this case.
Montgomery’s opinion regarding Defendants’ failure to conduct appropriate jury verdict research was barred because she lacks experience in product liability defense, cannot opine how a product liability defense lawyer determines exposure, has never done product liability defense jury verdict research, and did not conduct her own jury verdict research before rendering her opinion. However, specific experience with respect to product liability litigation is not required in this case. Montgomery has the requisite background and experience to render opinions regarding the standard of care Defendants were required to meet based on the applicable ethical requirements and rules of professional responsibility.
Case Details:
Case Caption:
Ansur America Insurance Company V. Borland Et Al
Docket Number:
3:21cv59
Court:
United States District Court for the Southern District of Illinois
In the early hours of September 24, 2021, Cedric Lofton was arrested for allegedly battering officers of the Wichita Police Department. WPD determined that, due to his arrest, Lofton needed to be taken into custody. Because Lofton was still a juvenile, he was transported to the Sedgwick County Juvenile Intake and Assessment Center (“JIAC”) for processing.
When WPD left Lofton at JIAC to be processed, Lofton did not cooperate. Lofton displayed escalating noncompliance and made threatening comments. As Lofton continued to fight, kick, and resist the Defendants’ efforts to control him, they transferred Lofton to the prone position in hope of restraining him safely until he calmed down. Lofton continued resisting and fighting, never appearing to tire or give up and a call was made to WPD so that Lofton could be transported to a hospital. Eventually, they were able to handcuff Lofton, and he later stopped resisting and appeared to fall asleep. Defendants waited WPD to arrive to have them transport Lofton from JIAC to a hospital. After several minutes, Lofton stopped breathing. Conklin began performing CPR and EMS was called. Lofton was transported to a hospital and died a few days later.
Defendants Jason Stepien, Brenton Newby, William Buckner, Karen Conklin, and Benito Mendoza (“the JIAC/JDF Defendants”) were sued for excessive force, deliberate indifference to a medical need, and failure to intervene. They were also sued for battery, negligence, and both the intentional and negligent infliction of emotional distress under Kansas law.
Plaintiff retained Jerome Davis and Michael Lyman to provide testimony about nationally recognized definitions and standards, and that based on those measures, Lofton was controlled by Defendants and Defendants continued use of force was excessive and unreasonable.
Law Enforcement Expert Witnesses
Jerome Davis has investigated and reviewed numerous uses of force, while working in various supervisory ranks for New York City Department of Correction, and as Deputy Commissioner of Operations for the New York City Department of Juvenile Justice.
Michael Lyman is currently employed as a litigation consultant in the area of police practices and procedures and has served as an expert witness since August 2001. In May 2019, he retired from the Columbia College Department of Criminal Justice and Human Services where I was employed as a full professor for 32 years.
He has authored seven books dealing with various areas of policing. These have been published by both nationally and internationally recognized publishing houses.
Defendants criticized Davis because (1) his testimony was not based on sufficient facts or data; (2) his methodology was not based on reliable principles; and (3) even if his methodology were sound, he failed to reliably apply his methodology to the facts of the case.
Defendants added that Davis only relied upon the JIAC security footage in forming his opinion, and because the video lacks sound and is shot from an obstructed angle, most of Davis’ opinions are based on speculation.
Plaintiff argued that Davis’ testimony is necessary to refute Defendants’ claim that Lofton’s continued resistance justified their prone restraint. To do so, Plaintiff proffered that Davis will provide a definition of “control” which the jury can use to determine whether Defendants’ actions were objectively reasonable.
When pressed on what Davis’ definition of control was, the ultimate consensus came from Davis’ deposition. There, Davis said, “If you look at the video and you watch, while he’s in that prone position on the floor, within a minute or two of that, you see no movement at all, which means, from that point on, they had complete control of Lofton.” In sum, Davis’ definition of “control,” based on commonly recognized corrections standards, is the point at which the detainee has ceased struggling or has stopped moving.
Davis’ Definition of Control
When the Court asked Defendants whether it would “be appropriate for Davis to opine on his definition of control,” Defendants replied, “I think that opinion would not necessarily be improper.” In fact, in response to the Court’s questions, Defendants stated that they “would not disagree” with “Davis’ expert opinion that once a Defendant has stopped struggling . . . it is not inappropriate at that point to consider that he’s under control.”
Given that Davis’ definition of control is uncontroverted, the Court allowed Davis to testify about how “control” is defined by the corrections community and what uniform national standards recognize as signs of a Defendant being under officer control.
Davis’ Conclusions Regarding Control
Because the question of “control” is a factual finding, the Court decided that Davis will also not be permitted to testify as to his factual or legal conclusions about whether Lofton was under control since allowing him to do so would essentially “tell the jury what result it should reach without providing any explanation of the criteria on which that opinion is based or any means by which the jury can exercise independent judgment.”
The Court cannot allow an expert to “usurp the function of the jury in deciding the facts” or “interfere with the function of the judge in instructing the jury on the law.”
Michael Lyman
Defendants made a similar argument regarding expert Lyman’s testimony. They asked the Court to prohibit Lyman from testifying about the reasonableness of Defendants’ force because “objective reasonableness” is a fact issue for the jury and “excessive force” is a legal conclusion that the judge must instruct on.
The Court permitted Lyman to testify regarding nationally accepted corrections practices regarding use of force and the JIAC policies, but it did not allow him to testify as to any legal conclusions or other issues the jury will be asked to decide, such as whether the officers’ conduct was reasonable, excessive, or unnecessary.
Additionally, the Court did not permit Lyman to testify as to the credibility of any witness, the state of mind of any witness or party, or advise the jury as to case law or constitutional standards.
Held
The Court granted in part and denied in part the Defendants’ motion to strike or exclude certain opinions of Jerome Davis and Michael Lyman.
Key Takeaway:
The Court did not permit Davis to testify as to his own conclusions regarding the officers’ control over Lofton because the jury can watch the JIAC security footage for itself and form its own opinions as to whether Lofton was under the officers’ control.
Similarly, the Court did not permit Lyman to testify as to any legal conclusions or other issues the jury will be asked to decide, such as whether the officers’ conduct was reasonable, excessive, or unnecessary.
It all started when Hurricanes Laura and Delta inflicted significant damage on Plaintiffs’ rental property on August 27, 2020, and October 9, 2020, respectively. Southern Fidelity Insurance Company (SFIC) insured the property at the time of the damage. However, SFIC subsequently declared bankruptcy, and the Louisiana Insurance Guaranty Association (“LIGA”) has since been substituted as the proper party.
Plaintiffs claimed that the damage to their property had been undervalued. After LIGA was substituted for SFIC, LIGA retained Keystone to inspect the property. Plaintiffs then moved to exclude LIGA’s expert, Daniel Treas, claiming that his report was unreliable.
Building and Construction Expert Witness
Daniel Treas has over 15 years experience as a Construction Superintendent and in commercial construction, including 8 years in renovation and 5 years in project management. He has over 10 years experience in OSHA regulations. He has also served as an independent insurance adjuster with over 14 years of experience.
Plaintiffs argued that Treas’ report was unreliable due to his failure to physically inspect the property and conduct a thorough review of the previous expert’s report. Furthermore, they pointed out discrepancies in the report and claimed that it was nearly identical to an earlier report prepared by the previous expert. According to the Plaintiffs, Keystone initially sent a building consultant, along with its engineer, to inspect the property on August 25, 2023. The building consultant authored a report dated September 15, 2023, but left Keystone shortly thereafter.
Subsequently, Keystone hired Treas to prepare a report to support its estimate of damages caused by Hurricanes Laura and Delta.
The Plaintiffs complained that: (1) the Treas report is identical to the previous expert report, (2) Treas is not a licensed adjuster, (3) Treas did not personally inspect the property, and (4) Treas was not involved in this matter until July 2024. Moreover, they identified discrepancies between the two reports, such as a missing fan on the rear elevation porch, the type of exterior cladding on the house, and the wrong address noted in the report. Additionally, they contended that Treas improperly opined on causation.
Treas is not a licensed adjuster
In response, LIGA defended Treas’ qualifications, citing his extensive experience in various construction roles, including the estimator and catastrophe claims adjuster. LIGA explained that Treas relied on Keystone’s engineer regarding causation in order to prepare an estimate to rebuild the property.
Treas report is identical to the previous expert report
Regarding the similarity between the reports, LIGA noted that Treas testified the first 12 pages should be the same because they list the background information about the property. However, several differences exist between the reports, including additional damages not mentioned in the previous expert’s report, as well as overall discrepancies in the estimated damages.
Ultimately, the Court did not find that exclusion was warranted simply because the two reports were very similar. As to the discrepancies, the Court found that this will go to the credibility of the witness and his report. The Court further noted that the instant matter is a bench trial, and Plaintiffs will be able to cross-examine and rebut LIGA’s report and Treas’ testimony.
Held
The Court denied the Plaintiffs’ motion to exclude the expert testimony of Daniel Treas.
Key Takeaway:
According to Federal Rule of Evidence 402, evidence is generally admissible so long as it is relevant and not barred by the Constitution, a federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court. Evidence should only be excluded in limine where it is “clearly inadmissible on all potential grounds.”
The Court determined that the similarity between expert reports alone does not justify exclusion. It emphasized that any discrepancies identified concerned the credibility of the witness rather than the admissibility of the evidence. In a bench trial setting, Plaintiffs retain the opportunity to effectively cross-examine the expert. They can also challenge the opposing party’s findings. This underscores the importance of witness credibility in evaluating expert testimony.
Case Details:
Case Caption:
Houston et al vs. Southern Fidelity Insurance Co.
Docket Number:
2:22-CV-01198
Court:
United States District Court for the Western District of Louisiana, Lake Charles Division
This case concerns a trip-and-fall accident. Pedero Sanders alleged that, on November 8, 2022, he was employed by Weeks Marine as a Jones Act seaman assigned to the dredge JS Chatry. He claimed that, in the course of his work, he tripped and fell while retrieving supplies from a shack on land.
According to Sanders, the supply shack is pulled into place at the worksite using “D-rings,” and he tripped over one of the rings that was supposed to be buried, but was not, resulting in bodily injuries.
Sanders filed this suit against Weeks Marine, alleging claims for Jones Act negligence, unseaworthiness, and maintenance and cure.
Weeks Marine filed two motions in limine to exclude the testimony and opinions of Sanders’ experts – one directed at Sanders’ safety expert, Robert Borison, and the other at Sanders’ economic loss expert, Max Lummis.
Safety Expert Witness
Robert Borison brings to the table over 50 years of safety experience in the industries relating to the exploration, production, and transport of oil and gas and the marine, general, and commercial industries. His expertise in safety issues on production platforms, barges, structural, fabrication yards, vessels/boats, commercial and industrial buildings, and building projects is extensive.
Max Lummis is a Certified Public Accountant licensed in Texas and Colorado, a Certified Valuation Analyst and a Certified Fraud Examiner. Lummis has worked as a forensic accounting professional since 2004. He founded LCS Forensic Accounting & Advisory (a certified public accounting firm) in 2012 and has been its managing member since. He has been disclosed as an economic damages expert witness on over 200 matters.
Weeks Marine’s motion to exclude Sanders’ safety expert Robert Borison
Borison reviewed the evidence in this case and performed “root cause” analysis in which he opines that Weeks Marine failed to provide Sanders with a safe vessel to work on because did not remove the shackle and D-ring from the supply shack’s skid after setting it up for service.
Weeks Marine argued that Borison’s testimony and opinions should be excluded because expert testimony is not necessary to understand the issues presented in this simple trip-and-fall case. Defendants contended that a trip-and-fall hazard is within the ordinary understanding of a lay juror and the issues can be resolved by employing common sense. Defendants also pointed out that Borison opined that it failed to provide Sanders with a safe vessel, which amounts to a legal conclusion for the factfinder to make.
Weeks Marine contended that Sanders underestimates the intelligence of the average juror, who can understand, without expert testimony, the circumstances surrounding a trip-and-fall accident and that a pre- task meeting (including a Job Safety Analysis) can be helpful to prevent accidents.
Weeks Marine also urged that Borison should not be permitted to testify about JSAs or why supply shacks are needed and how they are moved and placed because his report does not state any opinions on those topics.
Despite being qualified, Borison’s opinion does not relate to any specialized maritime activity or equipment for which expert testimony would be required. The average juror is certainly familiar with tripping hazards and can resolve the issues presented in this case without expert testimony. Further, Borison’s opinion on tripping hazards does not implicate industry standards that are not also within the understanding of jurors. Moreover, Borison cannot testify about JSAs or the use and movement of supply shacks because he does not discuss them in his report.
Weeks Marine’s motion to exclude or limit Sanders’ economic loss expert Max Lummis
Lummis issued a report with four calculations: (1) Sanders’ past lost wages from the date after the accident (November 9, 2022) to the expected trial date (November 18, 2024) in the amount of $197,153; (2) Sanders’ future lost wages through his average work- life expectancy of 61 years, discounted to present value, in the amount of $2,513,712; (3) Sanders’ future lost wages if he works until age 62, discounted to present value, in the amount of $2,616,386; and (4) Sanders’ future lost wages if he works until age 70, discounted to present value, in the amount of $3,442,865.
To calculate the lost future earnings, Lummis “increased projected pre-tax annual earning capacity each year from 2023 through Plaintiff’s average work life expectancy using an inflation-adjusted ‘real’ wage growth of 0.83%,” then he “discounted back to the expected trial date using an inflation-adjusted risk-free rate of 0.56%.”
Lummis’ Testimony and Opinions regarding Sanders’ Future Lost Wages should be Excluded
Weeks Marine sought to exclude or limit Lummis’ testimony and opinions regarding Sanders’ future lost wages, arguing that he doubly accounts for inflation. It contended that Lummis, without evidence of Sanders’ potential wage growth, speculatively increased Sanders’ annual wages by 0.83%, and then applied a 0.56% discount rate, which allows Sanders to “double-dip” on his future wage loss claim. Weeks Marine further argued that Lummis should not be permitted to testify as to Sanders’ future lost wages beyond his statistical work-life expectancy of 61 years because there is no evidence that he would work longer.
It also argued that Lummis should not be permitted to present evidence of future lost wages beyond Sanders’ statistical work-life expectancy because there is no evidence that Sanders would have worked that long. Finally, Weeks contended that Lummis should not be permitted to amend his report to provide new calculations because the time has passed for providing expert reports and he could have performed the calculations correctly in the first place.
Lummis’s calculations are wrong as a matter of law
The Court held that Lummis’ testimony and opinions on Sanders’ future lost wages are inadmissible because he doubly accounts for inflation. As noted above, Lummis increased Sanders’ annual income by a factor of 0.83%, and then discounted the income stream to present value using a 0.56% discount rate. The supposed annual increase was based entirely on the statistical wage growth rate developed by the Bureau of Labor Statistics (which rate Sanders admits is “inflation-adjusted”), not evidence of Sanders’ actual expected increased earnings due to personal merit or increased experience. In other words, Lummis’ calculations are wrong as a matter of law and must be excluded from trial.
The Court, however, allowed Lummis 14 days to amend his report utilizing the proper methodology.
The Court added that Lummis may testify at trial as to Sanders’ future lost wages up to ages 62 and 70, if Sanders first presents other evidence that he would have continued to work past his statistical work-life expectancy of 61 years. It held that Weeks Marine’s motion in limine to exclude Lummis’s testimony concerning Sanders’ future lost earnings up to ages 62 and 70 is denied.
Held
The Court granted Weeks Marine’s motion in limine to exclude Robert Borison’s testimony but granted in part and denied in part Weeks Marine’s motion in limine to exclude Max Lummis’ testimony.
Key Takeaway:
Borison’s sole opinion is that the exposed D-ring created a tripping hazard. This opinion does not relate to any specialized maritime activity or equipment for which expert testimony would be required.
Lummis’ calculations are wrong as a matter of law because he doubly accounts for inflation. Lummis increased Sanders’ annual income by a factor of 0.83%, and then discounted the income stream to present value using a 0.56% discount rate. The Court held that the supposed annual increase was not based on evidence of Sanders’ actual expected increased earnings due to personal merit or increased experience but on the statistical wage growth rate developed by the BLS, which rate Sanders admits is “inflation-adjusted”.’
Case Details:
Case Caption:
Sanders V. Weeks Marine, Inc.
Docket Number:
2:23cv7317
Court:
United States District Court for the Eastern District of Louisiana
On Feb. 3, 2023, a train carrying chemicals jumped the tracks in East Palestine, Ohio, rupturing railcars filled with hazardous materials and fueling chemical fires at the foothills of the Appalachian Mountains. The Defendant Norfolk Southern Railway Company (“NSR”) was held responsible for the train derailment and chemical spill (vinyl chloride), which adversely affected not less than 500,000 people. It necessitated immediate evacuation of all homes and businesses in an approximate one-to-two-mile radius of the Site.
EPA’s handling of chemical testing was called into question in the wake of the derailment, which has led to serious personal and professional repercussions. As a result, multiple whistleblowers came forward to testify to the Environmental Protection Agency’s (EPA) investigation and potential manipulation of data collection regarding chemical contamination in East Palestine.
Scott Smith, for instance, conducted multiple rounds of testing in and around East Palestine to come up with evidence of significant environmental contamination. Testimony from forensic engineer and environmental contamination expert, Stephen Petty, has validated independent data collected by Government Accountability Project client Scott Smith.
Environmental Engineering Expert Witness
Stephen Petty is currently President of Engineering & Environmental Services, Inc. (EES). He also served as an Adjunct Professor at Franklin University, where he taught courses in environmental and earth sciences. Prior to starting EES Group, Inc. in 1996, Petty was the Manager of Residential and Commercial Technology at Columbia Energy and a Senior Research Engineer at Battelle. He has 32 years of forensic engineering, health and safety, environmental engineering, and energy experience.
Since the derailment, Smith has traveled to East Palestine 27 times and has conducted 31 rounds of testing on homes, soil, and water. His work revealed dangerous levels of dioxins and furans in the town’s air, water, soil, and homes, which counters the EPA narrative that it is safe to live in East Palestine.
Some EPA staffers had dismissed Smith as a “fake scientist,” while class counsel told the Court that misinformation has been spread about the settlement including “inaccurate commentary attributable to Scott Smith, a non-class member with no formal scientific or medical training or education.”
Petty, an expert who previously worked for attorneys pursuing the class action settlement, submitted a declaration validating his environmental testing and sampling work. He praised Smith’s quality control and methodology as meeting professional standards.
This new filing by Petty substantiated Smith’s credibility, pointing to the lack of human health assessment studies in East Palestine.
Held
Plaintiffs’ attorneys own testing expert validated Scott Smith’s data and methodologies.
Key Takeaway:
Despite facing personal and professional challenges, Smith stood up for the health of the East Palestine community. He provided concrete evidence that the EPA is altering data to downplay the dangers.
