Expert Witness Profiler

Tag: admissibility

  • Healthcare Expert Not Allowed to Opine on Information Blocking

    Healthcare Expert Not Allowed to Opine on Information Blocking

    Intus and RTZ both work with Program of All-Inclusive Care for the Elderly (“PACE”) facilities, which provide care to elderly patients who live in non-institutional settings in the community. RTZ developed the PACECare software system and licenses it to PACE facilities to help manage data, including patients’ electronic health information (“EHI”). Some PACE facilities also contract with Intus, which designed a product to analyze data from patients’ electronic health records to help identify risks and improve care.

    The parties dispute whether RTZ has improperly blocked Intus’ access to data, including EHI, contained in PACECare. Intus asserts three claims for relief: intentional interference with contractual relations; intentional interference with prospective economic advantage; and violation of California’s unfair competition law (“UCL”).

    Its UCL claim is based on its contention that RTZ unlawfully engaged in “information blocking,” in violation of the 21st Century Cures Act and its implementing regulations.

    RTZ has asserted four counterclaims: violation of the California Comprehensive Computer Data Access and Fraud Act; violation of the Computer Fraud and Abuse Act; trespass to chattels; and violation of the UCL.

    RTZ Associates, Inc. sought to exclude the testimony of Intus’ experts, Shawn Fleury and Dr. Kristopher Hult while Intus sought to exclude the testimony of RTZ’s experts, Traci Creegan and Peter Schwechheimer.

    Economics Expert Witnesses

    Dr. Kristopher J. Hult received a Ph.D., M.A., and B.A. in Economics from the University of Chicago, and a B.S. in Mathematics from the University of Chicago.

    Hult’s areas of expertise are in the economics of antitrust, competition, industrial organization, and healthcare.

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

    Peter Schwechheimer is an economic consultant and testifying expert with nearly three decades of professional experience in the economics of intellectual property, antitrust, commercial damages, transfer pricing, and technology licensing including the licensing of standard essential patents (SEPs).

    Gain a comprehensive understanding of Peter Schwechheimer’s qualifications and casework history with his Expert Witness Profile report.

    Cybersecurity Expert Witness

    Shawn R. Fleury is a cybersecurity expert with approximately twenty-nine (29) years of risk management, incident response, and consulting experience.

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

    Healthcare Expert Witness

    Traci Creegan has over twenty-five years of healthcare and management experience focused on health information technology (IT) and regulatory compliance.

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

    Discussion by the Court

    Traci Creegan

    Intus sought to exclude Traci Creegan, one of RTZ’s experts, from offering four opinions relating to liability: “1) that RTZ is not an actor under the Cures Act, 2) that RTZ did not violate the Cures Act [by engaging in information blocking], 3) that the manner exception applies to RTZ’s conduct, and 4) that Intus departed from industry standards.”

    The parties dispute whether the Court has already decided that RTZ is an actor under the Cures Act and that RTZ engaged in information blocking. The Court did not decide the former, but it did decide the latter.

    As a result, Creegan’s testimony on whether RTZ engaged in information blocking is excluded because that issue is “deemed established for purposes of the trial of the case.”

    Analysis

    In addition, her opinion on that question, as well as her opinions that RTZ is not an actor and that the manner exception applies, is improper expert testimony because an expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.

    In this case, Creegan opined that “RTZ is not ‘an actor’ subject to the information blocking regulations”; that “RTZ’s conduct did not constitute information blocking as defined by federal regulation”; and that “even if RTZ’s conduct could be construed as information blocking, which it was not, the circumstances satisfy the factual conditions of the Manner Exception.”

    These opinions are improper expert testimony. According to the Court, whether RTZ is liable for violating the information-blocking provisions of the Cures Act—including whether RTZ is a covered “actor” and whether an exception applies—is for the jury to decide.

    Creegan may, however, testify as to industry standards and whether the parties complied with them. Such testimony does not improperly embrace the ultimate issues the jury must decide.

    Intus argued that Creegan’s opinions on industry standards are irrelevant, but that is incorrect. To determine whether the manner exception applies, the jury will need to consider whether RTZ made “at least some reasonable efforts” to reach an agreement with Intus to share information.

    Whether the parties complied with industry standards bears on that question and is therefore relevant.

    As a result, Creegan may not testify that RTZ is not an actor under the Cures Act; that RTZ did not engage in information blocking as defined in the Cures Act; or that, even if RTZ did engage in information blocking, the manner exception applies to RTZ’s conduct. However, Creegan may testify on compliance with industry standards.

    Shawn Fleury

    Although RTZ correctly observed that much of this testimony interprets email correspondence that presumably will be before the jury, it also opined on how the requests expressed in the emails relate to standard industry practice.

    RTZ is incorrect when it argued that Fleury’s opinions “would not assist the jury’s understanding.” Intus is entitled to present Fleury’s testimony to counter Creegan’s testimony regarding industry standards. To the extent RTZ disagreed with Fleury’s reading of the email correspondence, it is free to challenge Fleury’s interpretations on cross-examination.

    Fleury stated, “The email notes that Medications are included under the Patient data that is being requested, which likely corresponds to the ‘redirect.main.meds.new’ module. As such, Creegan’s opinion that this module falls outside of the request is unsupported and factually incorrect.” He continued, “Also significant is the inclusion of the abbreviation ‘etc.’ in the requirements, which indicates that additional data elements may be necessary to complete [Intus’s] responsibilities to its customer.”

    Fleury has no basis for opining on what “etc.” in an email not written by him might refer to. Moreover, he testified at his deposition that he was “not trying to interpret what other data elements [the author of the email] could have meant by having et cetera in there.”

    However, the Court found no basis to exclude the remaining paragraphs in this section of Fleury’s report. RTZ did not argue, for example, that it is improper for Fleury to comment on “the number of times that certain modules were accessed by Intus’ assigned accounts” to conclude that he “would expect a higher volume of audit log entries if there was systematic data mapping occurring by Intus,” or to opine that the audit logs contain no evidence “that Intus exceeded the permissions of the accounts which had been provisioned by RTZ.”

    Kristopher Hult

    Hult bases his analysis on his “understanding that starting in September 2022, RTZ refused to allow Intus access to the electronic medical records (EMR) data stored in RTZ’s PACECare and later prohibited Intus’s clients from providing access to Intus.”

    He stated that his “calculations can be adjusted should the finder of fact determine an alternative appropriate timeframe.”

    RTZ did not challenge Hult’s economic expertise or the economic principles that he applies, but it did challenge the factual bases for some of his opinions.

    RTZ argued that Hult’s testimony incorrectly assumes that any information blocking started in September 2022, when RTZ sent Intus a cease-and-desist letter, even though Intus acknowledged in discovery responses that it continued to log in to PACECare after that date. Hult testified at his deposition that the relevant question is whether Intus had “a loss of access that affected their ability to perform their services,” and not whether Intus had “no access to data.”

    RTZ disputes the factual basis for Hult’s testimony, but that does not render Hult’s opinions unreliable. If the jury agrees with RTZ’s interpretation of the facts and concluded that Intus still had access to data after September 2022 that was sufficient for Intus to perform its services, then it can discount Hult’s testimony accordingly.

    Although RTZ has presented reasons why a jury might discount the weight of Hult’s opinions, whether to credit his testimony is for the jury to decide. The Court is satisfied that Hult’s testimony is admissible under Rule 702 and denied RTZ’s motion to exclude it.

    Peter Schwechheimer

    Intus sought to exclude Schwechheimer’s opinions regarding RTZ’s damages if RTZ were to prevail on its counterclaims. Schwechheimer opined on the “economic damages resulting from Intus’ unauthorized access to and use of RTZ’s PACECare software,” providing one figure for June 2021 through December 2024 and a second figure if the jury were to determine that the unauthorized access continued through at least December 2025.

    He opined that Intus “was unjustly enriched by its ongoing system access to RTZ’s PACECare software,” and that this “would likely manifest in a shorter development cycle, accelerated market entry, and additional venture capital funding.”

    Some of Intus’s criticisms of Schwechheimer’s testimony go to weight and not admissibility. For example, Intus argues that Schwechheimer improperly attributes lost profits to RTZ based on contracts that Intus contends were acquired by Collabrios Health. However, as the Court has previously observed, Intus has cited no “evidence that [Schwechheimer’s] report characterizes the contracts as belonging to or having been assigned to Collabrios.”

    Intus’s remaining challenges do go to admissibility, and the Court accordingly excluded portions of Schwechheimer’s testimony. First, Schwechheimer may not testify about the classification by Laura Emery, Senior Product Manager at Collabrios, of various PACECare modules accessed by Intus as High, Medium, or Low, with High modules being ones “that provided insight into PACECare’s organizational structure and/or included features or functions common to standard EHR software.” Second, Schwechheimer may not testify that accessing PACECare allowed Intus to develop CareHub on an accelerated schedule. Third, Schwechheimer may not testify about Intus’ raising of capital. Finally, Schwechheimer may not testify about what the law requires, including that disgorgement of profits is an available remedy under the California Comprehensive Computer Data Access and Fraud Act.

    Held

    In sum, the Court denied the motion to exclude the testimony by Kristopher Hult. It granted in part and denied in part the motions to exclude testimony by Traci Creegan, Shawn Fleury, and Peter Schwechheimer.

    Key Takeaway

    The Court’s role at this stage of the proceedings is not “to engage in freeform factfinding, to select between competing versions of the evidence, or to determine the veracity of the expert’s conclusions.”

    Instead, the Court “is to determine the scientific validity of an expert’s principles and methodology, not to determine whether their hypothesis is correct, or to evaluate whether it is corroborated by other evidence on the record. That is for the litigants to argue, and for the jury to decide.” 

    Case Details:

    Case Caption: Intuscare, Inc. V. Rtz Associates, Inc.
    Docket Number: 4:24cv1132
    Court Name: United States District Court, California Northern
    Order Date: July 08, 2026
  • Product Design Expert Was Allowed to Opine on Athletic Bags

    Product Design Expert Was Allowed to Opine on Athletic Bags

    Rebel, a cheerleading apparel brand based in Texas, sells, among other products, a backpack called the “Rebel Dream Bag.” Plaintiff holds a trademark in the Dream Bag’s “two-dimensional hourglass shaped enclosed curved figure double outline design, with an outlined straight rectangular shaped top line and an outlined curved three-fourth rectangular shaped line underneath, both inside the curved figure outline design,” as pictured.

    Jim Lundberg, under the business name CheerStix, operated an interactive internet store which sells cheerleading apparel, including cheerleading backpacks. In August 2021, Lundberg engaged designer Fernando Robert to develop a cheerleading backpack. Lundberg sent Robert examples of his desired design, including images of the Rebel Dream Bag and Nfinity Bag. Lundberg said he wanted his “own version” of a bag, though Robert noted that his mock-up possessed many similarities to the Rebel bag.

    After Defendant’s bag—the “It Bag” or “CS Athletic Bag”—entered the market, Rebel sued Lundberg for trademark infringement.

    Defendant filed a Daubert motion to exclude the expert report of Rob Wallace, who opined, based upon survey evidence, that the Dream Bag has acquired secondary meaning. Plaintiff separately moved to exclude the expert report of Hrag Nassanian, who opined upon the functionality of the Dream Bag’s trade dress.

    Branding Expert Witness

    Rob Wallace has extensive experience in brand identity strategy and design as the former managing partner of Wallace Church, Inc., one of the most recognized and accomplished brand identity strategy and design consultancies.

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

    Product Design Expert Witness

    Hrag Nassanian worked for over 20 years as a product designer and developer of bags, including backpacks, duffel bags, gym sacks, shoulder bags, luggage, roller bags, totes, and messenger bags. Nassanian built the product line of basketball bags at Nike and led the company’s global bag product design and development for several kinds of athletic bags. Nassanian previously taught a college course on principles of bag design and currently consults on product design and development.

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

    Discussion by the Court

    Rob Wallace

    Plaintiff retained Rob Wallace to testify regarding whether the Rebel Dream Bag’s trade dress has acquired secondary meaning among the consuming public. Wallace’s survey included a population of respondents who purchased cheerleading backpacks within the last twelve months and planned to do so again in the next twelve months.

    Defendant argued that the Court should exclude Wallace’s expert testimony and expert report based upon the survey’s use of an unreliable methodology.

    1. Universe

    Lundberg argued that the survey consisted of an underinclusive universe, as it excluded those consumers who have not purchased cheerleading equipment in the last 12 months but plan to do so in the next 12 months.

    However, Lundberg has not shown that excluded consumers from the survey universe represent a “sizeable portion” of the market. Consequently, Lundberg’s criticisms related to the sampling universe go to the weight of the evidence, not the survey’s admissibility.

    2. Whether Survey Questions Were Clear, Precise, and Nonleading

    Here, Defendant contended that the following question was flawed: “From the design of this product, do you believe that this backpack comes from one source/ manufacturer or is it a generic design that is used by many different backpack manufacturers?”

    A critique of whether the survey question focused on the correct issue did not affect admissibility, but rather, “goes to how much weight the Court should give the survey results.” Accordingly, Lundberg’s argument regarding this survey question goes to the survey’s weight, not admissibility.

    Defendant additionally argued that the lack of a survey pre-test warrants exclusion. On the contrary, pre-tests “are not required” and do not justify the exclusion of that expert’s testimony.

    Therefore, the Court held that Wallace Survey’s lack of a pre-test did not render the survey inadmissible.

    3. Other Concerns

    Defendant argued that the Wallace Survey warrants exclusion, in part, because it lacked a sufficient control group. Because courts have admitted surveys with no control group at all, criticisms of the Wallace survey’s control group here go to its weight, not admissibility.

    Likewise, the failure to remove Rebel’s star-shaped “R” design logo goes to the weight of the survey, not admissibility. Since the images of the Rebel Dream Bag presented to Wallace Survey respondents included this indicium of origin, Lundberg argued the Wallace Survey “simply measures how many respondents recognize the backpack as coming from one company because it contains a brand logo on it.”

    The presence of source-identifying indicia, however, does not necessarily make a survey inadmissible. Here, the star “R” logo appeared only on Rebel’s backpack, not on Lundberg’s. As a result, there exists little risk of respondents mistaking the Rebel and Lundberg backpacks as deriving from the same source on the basis of the logo.

    In summary, for the reasons described above, the Court found the Wallace survey admissible.

    Hrag Nassanian

    Nassanian opined on the functionality of the Rebel Dream Bag design, evaluating the functionality of the bag’s individual components and the overall bag in the context of its use generally and its unique role in cheerleading.

    Nassanian concluded that Rebel Dream Bag’s trade dress overall remains functional, as do the following components on the bag: contrasting color zipper pocket outlines; front pocket style and placement; side mesh and placement; auxiliary side pocket style and placement; glitter fabric; interior-fabric monogramming patterns; shoe compartment style and placement; and clip placement.

    Rebel argued that Nassanian’s lack of knowledge regarding cheerleading renders him ineligible to opine on the Dream Bag, designed for cheerleaders. While Nassanian’s report touches upon the bag’s use in cheerleading, his opinion also encompasses manufacturing details, design choices common to bags generally, and non-cheerleading-specific use of the bag. These opinions derive from Nassanian’s uncontested expertise in bag product design and development, which does not require specific cheerleading knowledge or expertise.

    Methodology

    Rebel argued that Nassanian’s methodology remains unreliable because he only evaluated the backpack’s functionality based upon its components, not in totality; Nassanian failed to consider alternative designs; and Nassanian only looked at the backpack and cheerleading in preparation for this lawsuit.

    Rebel’s challenges lacked merit. First, Nassanian stated that he did evaluate the backpack’s functionality in totality, as well as the bag’s individual components, and the report confirms his assertion. Likewise, Nassanian’s report clearly included consideration of alternative designs, including a lack of contrasting colored zippers, a different radius for front pocket styles, and alternative locations for a side mesh pocket. Nassanian also considered other backpack designs. Finally, the fact that Nassanian’s testimony was expressly developed for the purpose of testifying is not unusual; that is undoubtedly the case for most, if not all, retained expert witnesses.

    Though Nassanian had not previously worked with competitive cheerleading, he nonetheless possesses extensive experience with bag design and development, and with specialty athletic bags in particular.

    The the Court found that Nassanian’s methodology met the minimum requirements under Daubert.

    Held

    • The Court denied Defendant’s Daubert motion to exclude the expert report of Rob Wallace.
    • The Court denied Plaintiff’s motion to exclude to the testimony of Hrag Nassanian.

    Key Takeaway

    Nassanian’s methodology extensively considered his observations of the Rebel Dream Bag and other athletic bags, and Nassanian’s extensive experience and knowledge within the field of bag design and development. This methodology creates no issues for reliability under Daubert.

    An expert might draw a conclusion from a set of observations based on extensive and specialized experience.

    Case Details:

    Case Caption: Rebel Athletic Inc. V. Lundberg
    Docket Number: 1:22cv3330
    Court Name: United States District Court, Illinois Northern
    Order Date: February 11, 2026
  • Ophthalmology Expert’s Standard of Care Testimony Admitted

    Ophthalmology Expert’s Standard of Care Testimony Admitted

    Plaintiff Raymond Dean Brown, a federal inmate confined at the Federal Correctional Center in Terre Haute, Indiana (“FCC Terre Haute”), brought this action against the Defendants, Dr. Elizabeth Trueblood, Dr. William E. Wilson, and Dr. David Lukens, alleging that they were deliberately indifferent to his serious medical conditions in violation of his Eighth Amendment rights.

    Brown’s expert witness, Charles Howard, testified that Brown’s February 15, 2019, optometrist visit that indicated he had potentially suffered a stroke “should have immediately resulted in a hospital trip because these complaints had already occurred several times. Brown clearly was experiencing clots thrown from his atrial fibrillation.”

    According to Brown, other practitioners viewed Wilson’s actions as falling far short of the standard of care.

    Defendants argued that Howard’s opinions are unreliable because (1) Howard cannot provide legal conclusions or opinions on causation; (2) Howard is not qualified in cardiology, pulmonology, or neurology, and he therefore cannot testify as to these specialists’ determinations for Brown’s care; and (3) Howard provides no reliable scientific methodology for his opinions.

    Ophthalmology Expert Witness

    Charles Howard, MD, MMM, is retired from the Federal Bureau of Prisons (BOP), having served twenty (20) years as a Medical Officer. He joined the US Department of Justice Federal Bureau of Prisons as a Medical Officer and National Ophthalmology Consultant in 2002 at the Federal Medical Center in Devens, Massachusetts.

    Moreover, Howard earned a Master of Medical Management degree (MMM) from the HJ Heinz School of Public Management at Carnegie Mellon University in Pittsburgh. He is a Board-Certified Fellow of the American Board of Quality Assurance and Utilization Review Physicians (FABQAURP) and a Fellow of the American Institute of Health Care Quality Management (FAIHCQM).

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

    Discussion by the Court

    In this case, Howard is a trained ophthalmologist and served as a Medical Director for the BOP, the same role Wilson held when supervising the care of inmates with complex medical conditions like Brown. He need not be a specialist in cardiology or neurology to review the care Brown holistically received just as Wilson would have done.

    Specifically, the Court found that Howard is sufficiently qualified to give opinions regarding Brown’s holistic care under Wilson as a Clinical Director and ophthalmological care involving Lukens.

    Moreover, Howard’s medical opinions are not based on ‘junk science,’ but more than twenty years of medical experience. Although the Defendants contended that Howard did not have a firm foundation for basing his opinions regarding the appropriate standard of care, the Seventh Circuit has found that a doctor can rely on medical history, including a review of medical records.

    Defendants filed a separate motion to exclude Howard’s opinions at trial, which the Court denied as moot. The Court considered Howard’s testimony and evidence in connection with Defendants’ summary judgment motions. Ultimately, the Court granted those motions, and final judgment was entered in favor of the Defendants.

    Held

    The Court denied the Defendants’ partial motion to strike the testimony Charles Howard.

    Key Takeaway:

    Brown has therefore established by a preponderance of evidence that Howard meets the prerequisites of admissibility to offer a reliable opinion on the standards of care within his report and testimony.

    And due to his specific knowledge of the circumstances and experience in the field, Howard’s testimony and report will assist the Court in understanding the evidence and determining the facts at issue in this case.

    Case Details:

    Case Caption: Brown V. Wilson
    Docket Number: 2:21cv240
    Court Name: United States District Court, Indiana Southern
    Order Date: September 24, 2025
  • Economic Expert’s Opinions on Property Valuation Admitted in Cook County Tax Sale Case

    Economic Expert’s Opinions on Property Valuation Admitted in Cook County Tax Sale Case

    Cook County ran an annual property tax sale targeting homeowners behind on property taxes. When taxes went unpaid, the County obtained court orders to sell tax liens on delinquent properties. Private tax buyers then paid the outstanding taxes in exchange for collecting repayment, plus interest, from property owners. If the owners didn’t repay within about 30 months, buyers could petition for a tax deed and take ownership.

    Michelle Kidd and Goyce H. Rates, two homeowners who lost their properties through this system, sued alongside two advocacy groups, Southwest Organizing Project (SWOP) and Palenque LSNA. They alleged the County’s tax sale process amounted to unconstitutional takings, excessive fines, and due process violations. Their homes, lost for debts under $10,000, were valued by the County between $166,000 and $389,000. Yet neither homeowner received compensation for the equity lost.

    As part of the litigation, the Plaintiffs introduced Dr. William G. Hamm, an economist who supported the reliability of Cook County’s mass appraisal system to estimate market values. The Defendants countered with Ron DeVries, a real estate expert who challenged that approach. Both sides moved to exclude the other’s expert.

    Economic Valuation Expert Witness

    William G. Hamm is a professional economist and a Managing Director of Berkeley Research Group, LLC (“BRG”), an expert services and economics consulting firm headquartered in Emeryville, California.

    Hamm has a BA from Dartmouth College and a PhD in economics from the University of Michigan.

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

    Real Estate Valuation Expert Witness

    Ron DeVries‘ valuation experience includes industrial, retail, office, hotel, multi-family (including FNMA/Freddie, HUD as well as LIHTC deals), and residential subdivisions for uses ranging from due diligence and financing to review appraisal.

    DeVries is a frequent speaker at the Chicago Real Estate Council, the Chicagoland Apartment Association as well as private events for clients. He has testified as an expert witness in a variety of matters. DeVries is past national Chair of Education for the Appraisal Institute and previously served on the Appraisal Institute’s Board of Directors, and numerous committees.  

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

    Discussion by the Court

    William G. Hamm (Plaintiffs’ Expert)

    Qualifications

    The Court found William G. Hamm qualified to testify. He is a professional economist and Managing Director at Berkeley Research Group with a PhD in economics. His experience includes building models to assess the market value of mortgage-related assets. Though not a licensed appraiser, the Court ruled that this does not disqualify him from evaluating Cook County’s mass appraisal system. His qualifications allow him to speak on complex modeling used to estimate real estate value.

    Reliability

    Hamm’s methodology involved analyzing how Cook County assesses property values using its Computer Assisted Mass Appraisal (CAMA) system. He reviewed public data, used certified Board of Review assessments, and calculated lost equity across a sample of properties. He acknowledged imperfections in the data and proposed interpolation to improve accuracy. The Court concluded that his methods were sound, especially given the lack of alternative sale data, and ruled that criticisms of his data sources go to weight, not admissibility.

    Ron DeVries (Defendants’ Expert)

    Qualifications

    The Court found DeVries qualified as an expert. He is a licensed real estate appraiser with decades of experience in property valuation. While he lacks experience in mass appraisal modeling, he is qualified to critique how accurately Cook County’s assessments reflect market value based on his appraisal experience.

    Reliability

    DeVries relied largely on his own professional knowledge to evaluate weaknesses in the County’s system, such as infrequent assessments and a lack of individualized property inspections. Although his report lacked citations to specific county documents, the Court found this appropriate for the nature of his testimony. The Court held that any gaps in his review go to credibility, not admissibility.

    Held

    The Court denied the Defendants’ motion to exclude William G. Hamm, finding his economic expertise and valuation methods reliable and admissible.

    The Court also denied the Plaintiffs’ motion to exclude Ron DeVries, holding his appraisal-based critique of Cook County’s assessments was qualified and relevant under Rule 702.

    Key Takeaway:

    The Court admitted both expert witnesses, ruling that Dr. William G. Hamm’s economic modeling and Ron DeVries’s appraisal-based critique were sufficiently qualified and reliable. Their testimony will play a central role in evaluating the constitutionality of Cook County’s tax sale system.

    Case Details

    Case Caption: Kidd v. Pappas
    Docket Number: 1:22cv7061
    Court Name: United States District Court for the Northern District of Illinois, Eastern Division
    Order Date: July 07, 2025
  • Accounting Expert’s Opinion Concerning Labor Costs Excluded

    Accounting Expert’s Opinion Concerning Labor Costs Excluded

    This case arises out of Delta’s delayed donut wrapping system. In late 2021, Bon Appetit Danish, Inc. and Bon Appetit Specialty Snacks, LLC (collectively, “Bon Appetit”) and Delta Systems and Automation, LLC’s (“Delta”) entered into a set of three contracts for Delta to manufacture packaging systems for Bon Appetit’s baked goods.

    But the donut packaging system failed to launch. After further testing failed to resolve the performance issue, Bon Appetit terminated all three contacts on April 14, 2023.

    Bon Appetit sued Delta over a contract dispute involving Overwrapping Systems, claiming $6,214,505 in labor costs as direct damages resulting from Delta’s alleged breach. Bon Appetit’s expert, Joseph Wheat, testified that these labor costs were directly caused by Delta’s failure to deliver properly functioning systems.

    Delta countered, arguing that the labor costs were consequential damages, barred by the Limitation of Liability provision, because they stemmed from Bon Appetit’s internal plan to use the Overwrapping Systems.

    Delta moved to exclude Wheat’s testimony, asserting that the labor costs were derivative losses arising from circumstances that are particular to the contract or to the parties.

    Additionally, Bon Appetit sought to introduce Lyle Rogalla as an expert to testify about the norms, customs, and practices, of the baked goods overwrapping industry. 

    Delta opposed, arguing that Rogalla was unqualified to testify specifically about donut overwrapping systems and that his opinions were unreliable under Rule 702.

    Accounting Expert Witness

    Joseph Wheat, CPA/ABV, CFF, is a Senior Vice President at J.S. Held, a global consulting firm specializing in a wide variety of forensic analysis.

    A Certified Public Accountant licensed to practice in California since 1993, Wheat has over 20 years of experience testifying as an expert witness on economic damages issues in both federal and state court matters.

    Wheat has performed numerous business valuation related to marital
    dissolutions, tax and estate matters and partnership disputes.

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

    Packaging Expert Witness

    Lyle Rogalla has led the development of advanced packaging and food processing equipment, delivering innovative, high-value solutions that optimize production processes and reduce costs for clients ranging from small businesses to Fortune 100 companies.

    His portfolio is enriched by 29 patents, encompassing both utility and design, for industrial and commercial applications. He has collaborated with over 100 machine manufacturers to deliver extensive automation and equipment solutions tailored to the clients’ specific needs.

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

    Discussion by the Court

    A. Motion to Exclude Damages Opinions of Joseph Wheat

    The Court considered Delta’s motion to exclude the opinion of Bon Appetit’s expert, Wheat, who attributed $6,214,505 in labor costs to Delta’s alleged breach of contract.

    The core issue was whether these costs were direct damages, which may be recoverable, or consequential damages, barred by the the Limitation of Liability provision. Direct damages (also called general damages) flow “directly and necessarily from a breach of contract, or that are a natural result of a breach.”

    Consequential damages (also called special damages) are “secondary or derivative losses arising from circumstances that are particular to the contract or to the parties.”

    In this case, Bon Appetit’s labor costs are considered consequential damages since they stem from Bon Appetit’s unique plan to use the Overwrapping Systems to streamline production and eliminate certain employee positions, a point Bon Appetit will argue through Wheat’s evidence of the system’s added efficiency.

    The Court excluded Wheat’s opinion concerning Bon Appetit’s labor costs pertaining to consequential damages.

    B. Motion to Exclude Expert Opinions of Lyle Rogalla

    Delta moved to exclude the opinion of Bon Appetit’s expert, Rogalla, arguing that he lacked the necessary qualifications to opine on donut overwrapping systems and that his methodology was unreliable under Daubert and Rule 702 due to an alleged lack of supporting facts or data.

    The Court disagreed. It found that Rogalla was qualified to testify based on his decades of experience with “solutions for complex automation and packaging needs . . . with emphasis in the food industry,” including “packaging and process automation, the preparation of specifications for the machines and the goods handled by the machines, testing, and modifying the machines and specifications to address both process quality and efficiency.”

    Insofar as the Donut System diverged from Rogalla’s experience with other food packaging systems, the Court held that it concerned the weight of his testimony, not its admissibility. 

    The Court also found that Rogalla had relied on a sufficient factual basis, including the Complaint, contract documents, Delta’s website, and federal regulations. Challenges to the depth or nature of that evidence, the Court concluded, were issues of credibility and weight, appropriate for cross-examination, not grounds for exclusion.

    Held

    • The Court granted Delta’s Daubert motion to exclude Joseph Wheat’s opinions.
    • The Court denied Delta’s Daubert motion to exclude the testimony of Lyle Rogalla.

    Key Takeaways:

    • Not all foreseeable damages are direct damages, as consequential damages may be “foreseeable and proximately caused by the breach of a contract.” 
    • An expert might draw a conclusion from a set of observations based on extensive and specialized experience.

    Case Details:

    Case Caption: Bon Appetit Danish, Inc. v. Delta Sys. & Automation LLC
    Docket Number: 2:23cv04305
    Court Name: United States District Court for the Central District of California
    Order Date: March 17, 2025
  • Premature Motion to Strike Reports of Housing Expert Witnesses Denied Without Prejudice to Renewal

    Premature Motion to Strike Reports of Housing Expert Witnesses Denied Without Prejudice to Renewal

    A district judge in New York refrained from excluding testimony about Defendants’ discriminatory policies offered by housing expert witnesses, for the time being.

    Plaintiffs CNY Fair Housing, Inc.; The Fair Housing Partnership of Greater Pittsburgh, Inc.; Housing Research & Advocacy Center, Inc., d/b/a Fair Housing Center for Rights & Research, Inc.; Housing Opportunities Made Equal of Buffalo, Inc.; Housing Opportunities Made Equal of Greater Cincinnati, Inc. (the “Organizational Plaintiffs”); Phyllis Bartoszewski; Deanna Town; and Joyce Wilcox, as administrator and representative of the estate of Lois Harter (the “Individual Plaintiffs”), brought this action, asserting claims of discrimination on the basis of disability under the Fair Housing Act of 1968 (“FHA”), New York Human Rights Law, and Ohio Civil Rights Law.

    According to Plaintiffs, Defendants have denied Individual Plaintiffs and other people with disabilities reserved or designated parking spaces near the rental units owned and operated by Clover entities (“Clover properties” or “Clover senior properties”). Defendants’ representatives routinely tell residents and applicants that the company does not provide designated parking spots at their multi-family, senior living complexes for anyone, including people with disabilities. Alternatively, and contemporaneously, Defendants have told residents who have requested a designated parking space as a reasonable accommodation because of their disabilities that they must pay a fee up to $350.00 for a designated space.

    Defendants filed a motion seeking to exclude from trial and deem inadmissible the opinions of Plaintiffs’ retained experts Erin Kemple and Christina Brooks.

    Premature Motions to Strike Reports of Housing Expert Witnesses Denied Without Prejudice to Renewal

    Housing Expert Witnesses

    Erin Kemple has been handling housing justice matters for nearly 30 years. She is a consultant and fair housing expert working with fair housing agencies around the country as well as working with the National Fair Housing Alliance to establish a new fair housing council in Memphis, Tennessee.

    In 1989, she and a group of legal services advocates and community activists founded the Housing Discrimination Project in Holyoke, Massachusetts eventually becoming the organization’s first Legal Director and then the Executive Director. While there, Kemple assisted the founders of the Connecticut Fair Housing Center, advising them on intake and investigation procedures. In addition to her work in Massachusetts and Connecticut, Kemple is consulting with fair housing groups across the country to assist them with fair housing enforcement and community development work.

    In 2022, Erin began her consulting work. She has given numerous trainings on the fair housing laws to lawyers, consumers, and housing providers as well as working with state and local officials to ensure that all communities welcome all people.

    Get in-depth insights into Erin Kemple’s expert witness experience by requesting her Expert Witness Profile today.

    Christina Brooks has over 16 years of experience in property management. She has taken fair housing training each year for the last 12 years and am well-versed in best practices under the Fair Housing Act, and particularly regarding decisions and issues related to reasonable accommodations.

    Gain a comprehensive understanding of Christina Brooks’ qualifications and casework history with her Expert Witness Profile report.

    Discussion by the Court

    Both Erin Kemple and Christina Brooks submitted reports dated January 31, 2023, and supplemental reports dated June 16, 2023. 

    Erin Kemple’s report addressed the actions the organizations took in response to Defendants’ discriminatory policies and how those actions fit into the standard fair housing organization processes and practices to address such discrimination.

    Christina Brooks’ report discussed typical and accepted reasonable accommodations policies and procedures at multi-family apartment buildings and how Defendants’ procedures relate to those standards.

    In support of their motion, Defendants relied on Federal Rule of Evidence 702, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and caselaw precluding experts from testifying to legal conclusions. Defendants claimed that the reports “were comprised of nothing but conclusory statements that were not based on any relevant data or facts” and “did nothing to aide a trier of fact to understand any evidence or determine a fact in issue.”

    Motion to Strike was Premature

    The Court held that the motion to strike was, at that time, premature. Both parties filed motions for summary judgment against each other. The Court does not have to resolve the admissibility of the expert opinions before resolving the motions for summary judgment. Moreover, expert discovery was not completed at the time these issues were briefed. And until the Court rules on those motions, it is not clear which, if any, theories of liability will survive summary judgment. 

    The Court also noted that the parties have not adequately briefed the relevance and admissibility of some of the proposed expert testimony. With respect to the admissibility of Kemple’s testimony regarding the calculation of organizational damages, neither party has provided any caselaw regarding the type of damages that are compensable. Kemple asserted that the Organizational Plaintiffs have claims for damages based on the diversion of resources and frustration of missions, but that is a legal issue for the Court to decide, not an issue for expert testimony, and the parties did not cite to any caselaw. The parties’ dispute regarding Brooks’ testimony concerning industry standards and reasonable accommodations is best considered after the Court has resolved the parties’ legal arguments regarding reasonable accommodation under the FHA.

    Held

    The Court therefore denied the motion to strike the reports of Erin Kemple and Christina Brooks at this time, without prejudice to renewal. To the extent Defendants sought to renew this motion following the Court’s ruling on the pending motions for summary judgment, the parties should meet and confer before Defendants file their motion, in order to narrow the issues. 

    Key Takeaway:

    The parties must adequately brief the relevance and admissibility of the proposed expert testimony. Neither party provided any caselaw regarding the type of damages that are compensable for the Court to rule on the admissibility of Kemple’s testimony regarding the calculation of organizational damages. Kemple asserted that the Organizational Plaintiffs have claims for damages based on the diversion of resources and frustration of missions, but that is not an issue for expert testimony, and the parties did not cite to any caselaw. 

    Case Details:

    Case Caption: CNY Fair Housing, Inc. Et Al V. Clover Group Inc. Et Al
    Docket Number: 5:21cv361
    Court Name: United States District Court, New York Northern
    Order Date: May 8, 2024
  • Emergency Medicine Expert Witnesses Opinions on Medical Screening Examinations Admitted

    Emergency Medicine Expert Witnesses Opinions on Medical Screening Examinations Admitted

    The case involved claims under the Emergency Medical Treatment and Labor Act (EMTALA) concerning the death of Calvin Jackson, Sr.’s minor child, C.J., the Plaintiffs. On August 9, 2020, C.J. received emergency medical care at North Caddo Medical Center (NCMC), the Defendants. Jackson alleged that NCMC failed to provide C.J. with proper medical screening and failed to stabilize C.J. before discharging him, violating EMTALA. C.J. died from diabetic ketoacidosis approximately six days later, on August 15, 2020. NCMC contended it did not breach EMTALA, asserting C.J. received an appropriate medical screening and proper treatments. Both the Plaintiffs and the Defendants provided expert opinions regarding what constituted an appropriate medical screening under the EMTALA, which were extensively addressed in the ensuing Daubert motions. Plaintiffs filed a Daubert Motion to Exclude Testimony/Statements of Jacquelyn White and Defendants filed a Daubert Motion to Exclude or Limit Testimony of Jullette Saussy.

    EMTALA was passed by Congress to address worries about hospitals “dumping” patients who lacked insurance or means to pay. The EMTALA mandated that participating hospitals provide the following care to individuals seeking emergency medical attention: (1) an appropriate medical screening, (2) stabilization of a known emergency medical condition, and (3) restrictions on transferring an unstabilized individual to another medical facility.

    Section 1395dd(a) of the EMTALA stipulated that if an individual, whether or not eligible for benefits under this subchapter, arrived at a hospital’s emergency department and placed a request for examination or treatment for a medical condition, the hospital had to conduct an appropriate medical screening examination within the department’s capabilities. This examination included ancillary services routinely available to the emergency department, with the aim of determining the presence of an emergency medical condition as defined in subsection (e)(1). Therefore, under the EMTALA, the adequacy of an appropriate medical screening examination was assessed not by diagnostic proficiency but by whether it was conducted fairly in comparison to other patients with similar symptoms.

    The EMTALA lacked a specific definition for “appropriate medical screening examination.” An appropriate examination was one that the hospital would have administered to any other patient in a comparable condition with similar symptoms. It was the Plaintiff’s responsibility to demonstrate that the hospital failed to provide an appropriate examination under the EMTALA. This burden could be met by showing either: (1) the hospital did not adhere to its own standard screening procedures; or (2) there were differences between the screening examination that the patient received and examinations that other patients with similar symptoms received at the same hospital; or (3) the hospital offered such a cursory screening that it amounted to no screening at all.

    In this case, the NCMC policy outlined that the Medical Screening Examination (MSE) would be conducted by the Emergency Department Physician and customized to suit the presenting complaint and the medical history of any individual seeking care at the Emergency Department. The MSE included, but was not limited to, the following components:

    1. Chief complaint and pertinent history

    2. Past medical and social history

    3. Physical examination

    4. Assessment

    5. Laboratory and imaging studies, if applicable

    Emergency Medicine Expert Witnesses

    Dr. Jacquelyn Kibodeaux White, M.D., F.A.C.E.P., a board certified physician in emergency medicine practicing in North Louisiana. She obtained her Bachelor of Science degree from Louisiana Tech University before earning her MD from Louisiana State University Medical Center. Following this, White completed a residency in Emergency Medicine at the University of Arkansas Medical Center. She became board-certified in Emergency Medicine in 1996 and has since then maintained her Active Board status. After 26 years of practice in Emergency Medicine, she is currently working full-time in Primary Care. She has served on several review boards for hospitals and for independent consultants.

    Dr. Jullette M. Saussy, M.D., F.A.C.E.P., is a board-certified emergency medicine physician with four years of residency training. She obtained her Bachelor of Arts degree in Sociology from Tulane University and subsequently earned her MD from the Louisiana State University Health Sciences Center and completed her residency at Charity Hospital in New Orleans. Over the course of her 24-year career, she has practiced emergency medicine in a variety of settings, including urban, community, and critical access hospitals.

    Discussions by the Court

    Jackson attempted to exclude defense expert Jacquelyn White (“White”), contending that her reasoning could not be applied to the facts at issue in this case because she did not read or review NCMC’s EMTALA policies, procedures, or guidelines regarding medical screening examinations. Jackson argued that White’s testimony was irrelevant as it would not aid the trier of fact in determining whether the actions of the treating emergency room physician violated NCMC’s medical screening policy and/or EMTALA.

    There was no dispute regarding White’s qualifications as a board-certified physician in emergency medicine practicing in North Louisiana. The Court deemed White qualified as an expert to provide opinions on appropriate medical screening examinations based on general standards of the medical community. White clarified in her deposition why she didn’t deem it necessary to review NCMC’s medical screening exam and stabilization document, since she believed it would not have altered her evaluation of the chart to determine if the patient had undergone an adequate medical screening exam. White expressed confidence in her ability to assess the adequacy of medical screening exams based on her extensive experience reviewing charts over the years and familiarity with EMTALA policies, which she found to be consistent across various institutions.

    Upon close examination of White’s deposition, it appeared that Jackson’s assertion that White categorically stated no social or medical history was recorded was not supported. The Court found that White sufficiently provided the factual basis for all her opinions. Both parties agreed that experts should not testify as to the legal conclusion that EMTALA was violated with this determination was reserved for the jury. The Court citing Chevron TCI, Inc. v. Capitol House Hotel Manager, LLC, No. CV 18-00776-BAJ-RLB (M.D. La. June 25, 2021), emphasized that the validity or correctness of an expert’s conclusions are matters for the jury to decide after the Daubert analysis. The Court concluded that Jackson’s challenges to White’s expert testimony pertained to credibility rather than admissibility. Therefore, challenges to the factual basis of White’s opinion were best addressed through cross-examination instead of Daubert motions. Consequently, Plaintiff’s Daubert motion to exclude the testimony of White was denied.

    Defendant NCMC moved to exclude Plaintiff’s expert, Jullette Saussy, contending that she did not meet the requirements of an expert under Rule 702. The Defendant argued that Saussy’s deposition testimony contained conflicting statements and inconsistencies regarding medical screening examinations and stabilization requirements, indicating a lack of accurate understanding of EMTALA elements. Defendant pointed out Saussy’s lack of prior involvement in EMTALA cases and absence of specialized training in EMTALA, questioning the reliability of her opinions. Additionally, the Defendant asserted that Saussy improperly conflated EMTALA claims with general medical negligence, suggesting her testimony would confuse the jury.

    After thoroughly reviewing the arguments presented in the motion, the Court determined that Saussy possessed extensive knowledge, skill, experience, training, and education, making her qualified to serve as an expert witness in the case. Being board certified in emergency medicine and having acquired knowledge about EMTALA, Saussy was deemed capable of reviewing NCMC’s EMTALA policies, procedures, and C.J.’s medical records to form opinions regarding appropriate medical screening examinations and stabilization requirements. The Court considered any concerns regarding conflicting statements and inconsistencies in EMTALA standards as matters of credibility and weight, rather than expertise and admissibility. It was acknowledged that there could be overlap between the objective test of local malpractice law (general medical negligence) and the subjective test of the adequacy of a hospital’s screening under EMTALA. The defense retained the right to challenge the weight given to Saussy’s testimony through vigorous cross-examination and presentation of contrary evidence during the adversarial trial setting. Consequently, Defendant’s Daubert motion to exclude or limit testimony of Saussy was denied.

    Held

    The Court denied Plaintiff’s Daubert motion to exclude testimony of Jacquelyn White. Additionally, the Court also denied Defendant’s Daubert motion to exclude or limit testimony of Jullette Saussy.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    In this medical malpractice action, both Plaintiffs and Defendants provided expert opinions on what constituted appropriate medical screening under EMTALA, leading to Daubert motions regarding the admissibility of both their emergency medicine experts’ testimony. Despite challenges raised against both the experts Jacquelyn White and Jullette Saussy, the Court deemed both qualified to provide opinions on medical screening examinations. While White’s testimony faced scrutiny over her familiarity with NCMC’s policies, her extensive experience and understanding of EMTALA standards were deemed sufficient. Similarly, Saussy’s expertise was upheld, despite challenges to her understanding of EMTALA elements and conflating an EMTALA claim with general medical negligence. The Court emphasized the role of the jury in determining the validity of expert conclusions after a thorough Daubert analysis. The decisions underscored the importance of expert testimony in navigating complex medical standards under EMTALA.

    Case Details

    Case Caption Jackson v. N. Caddo Hosp. Serv. Dist.
    Docket Number 5:22cv171
    Court United States District Court, Louisiana Western
    Citation 2024 U.S. Dist. LEXIS 29044
    Order Date February 20, 2024
  • Calculations of Future Medical Costs presented by Life Care Planning Expert Witness found to consist of Mathematical and Geographical Errors

    Calculations of Future Medical Costs presented by Life Care Planning Expert Witness found to consist of Mathematical and Geographical Errors

    Plaintiffs Briana Leakas and her minor son, D.L., along with Theodore Leakas,  Leakas’ spouse and D.L.’s guardian ad litem, initiated a legal action in the Monterey County Superior Court alleging personal injuries resulting from toxic mold contamination in a home they leased from Defendants, Monterey Bay
    Military Housing, LLC. The Plaintiffs claimed they sustained these injuries while residing in the U.S. Army Garrison Presidio of Monterey from approximately June 2019 to May 2020. The Defendants, citing the occurrence of the events in a federal enclave, removed the case to the United States District Court for the Northern District of California.

    After the Court granted the Defendants’ motion to dismiss the complaint with leave to amend, the Plaintiffs filed an amended complaint, which served as the operative pleading. This amended complaint asserted ten state and common law claims for relief, including negligence, nuisance, negligent misrepresentation, negligent infliction of emotional distress, breach of implied warranty of habitability, breach of implied covenant of quiet use and enjoyment, gross negligence, premises liability, constructive (wrongful) eviction, and fraud—concealment.

    Rebecca Czarnik, a registered nurse retained by the Plaintiffs solely for providing a projection of future medical costs, based her testimony entirely on the proposed testimony of another expert, David Ross, concerning Leakas’ long-term care and life-care planning needs. Defendants sought to exclude  Czarnik’s testimony, arguing that it did not meet the admissibility requirements of Rule 702 of the Federal Rules of Evidence. They claimed her cost projections were unreliable due to mathematical and geographical errors and because she did not adjust amounts to present value. Plaintiffs opposed the motion, arguing that Defendants’ objections to Czarnik’s calculations were matters concerning the weight, rather than the admissibility, of her proposed testimony.

    Life Care Planning Expert Witness

    Rebecca Czarnik, RN, MS, CNLCP, also known as Becky Czarnik, is a Registered Nurse with an exemplary 44-year career encompassing various healthcare settings, including hospitals, hospital administration, teaching in university nursing programs, home care, private medical office practice, and the insurance industry. She holds active and unrestricted nursing licenses in both Nevada and California. Additionally, Czarnik is a Certified Nurse Life Care Planner, equipped to serve as both a care expert and a cost of care expert. In her role, she determines the future care needs of individuals by establishing patterns of past, present, and future care, while also identifying the associated costs of those services. She currently holds the position of CEO/Owner of Sierra Nurse Consultants. Czarnik earned her Bachelor of Science in Nursing from St. Olaf College, following her, Master of Science in Nursing from The Ohio State University.

    Neuropsychiatry Expert Witness

    Dr. David Edward Ross, M.D., holds a distinguished position as the Director of the Virginia Institute of Neuropsychiatry, serves as the CEO of NeuroGage LLC, and holds the role of Clinical Assistant Professor at Virginia Commonwealth University. He boasts board certification in General Psychiatry, Neuropsychiatry, and Brain Injury Medicine. Ross completed both medical school and residency in psychiatry at Virginia Commonwealth University, followed by a fellowship in neuropsychiatry at the Maryland Psychiatric Research Center, University of Maryland. His expertise lies in the treatment and research of patients with traumatic and other types of brain injury. He identifies his major career interests as encompassing traumatic brain injury, MRI brain volume measurement, acquired brain injury, mold-related illness, and other neuropsychiatric disorders.

    Discussions by the Court

    Defendant pressed for the exclusion of Czarnik’s report for a number of reasons. For instance, Defendants alleged that Czarnik’s calculations were based not on her independent review of Plaintiff’s medical records, but simply on a laundry list of future care items that another of Plaintiffs’ experts, Ross, provided in his report. Czarnik failed to consider, offer opinions on, or factor into her calculations what items of future care on the list provided by Ross were due to Plaintiff’s myriad and undisputed pre-existing conditions (which pre-dated her tenancy at the subject property) and her various non-mold related genetic conditions (Ehlers Danlos Syndrome and its associated illnesses) versus what was actually due to her claimed symptoms or ailments allegedly stemming from living at the Property. Czarnik’s opinion was flawed in that her report used the wrong geographical location for the Plaintiff in reaching her calculations because Czarnik priced her future care costs based on Monterey, California, despite Plaintiff residing in rural North Carolina. Czarnik did not review a single medical record of Plaintiff prior to reaching her opinions as to the reasonable value of Plaintiff’s “future medical care.” The sole basis for her opinions was her review of the report prepared by another expert in this matter, David Ross. Defendants alleged that she did not even consult with Ross or any of Plaintiff’s treating doctors as to Ross’ diagnosis and treatment plan. Even though Czarnik characterized her opinions in this matter as a “Medical Cost Projection” as opposed to a “Life Care Plan”, her methodology did not attempt to establish a medical foundation through which the future treatment and care will be necessary, which is the requisite standard. Czarnik failed to even properly value the purported costs of such care considering her report contained a number of mathematical errors which grossly overstated the cost of the purported future care needs of Plaintiff.

    David Ross, a board-certified neuropsychiatrist, examined Leakas on June 28, 2023, and reviewed her medical records and other documents. Ross concluded that  Leakas developed an acquired brain injury due to biotoxin (mold) exposure at the home the Plaintiffs leased in Monterey, caused by CIRS (Chronic Inflammatory Response Syndrome), a mold-related illness.

    Czarnik was retained solely to provide a calculation of future medical costs based on Ross’ proposed testimony regarding Leakas’ long-term care and life-care planning requirements, yet in a separate order the Court held that Ross was not qualified to testify regarding Leakas’ long-term care or life-care planning needs. The Court noted that Plaintiffs presented no evidence or argument in response, and failed to demonstrate that Ross’ proposed testimony regarding Leakas’ long-term care or lifecare planning needs met the admissibility requirements of Rule 702. Accordingly, Czarnik’s proposed testimony was also excluded by the Court.

    Held

    The Court granted the Defendants’ Daubert motion to exclude testimony of Rebecca Czarnik.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    Czarnik’s expert testimony came under scrutiny for various shortcomings. Her report was heavily criticized for containing numerous mathematical errors and using an incorrect geographical location for the Plaintiff’s calculations, which significantly skewed the projected future care costs. Moreover, Czarnik failed to conduct an independent review of the Plaintiff’s medical records, basing her calculations solely on a list of future care items provided by another expert, Dr. Ross. This lack of comprehensive analysis led to concerns about the accuracy and reliability of her conclusions. Additionally, Czarnik did not adequately consider the Plaintiff’s pre-existing conditions or consult with Ross or the plaintiff’s treating doctors, further undermining the credibility of her opinions. On the other hand, Ross, a board-certified neuropsychiatrist, diagnosed the Plaintiff with an acquired brain injury attributed to mold exposure, forming the basis for the Plaintiff’s claim for future medical costs. However, the Court found Ross unqualified to testify regarding the Plaintiff’s long-term care and life-care planning needs, casting doubt on the foundation of Czarnik’s calculations. The Court’s assessment also raised questions about the admissibility of expert testimony under Rule 702, as Plaintiffs failed to demonstrate that Ross’ proposed testimony met the requisite standards. Overall, the expert testimony presented significant challenges and uncertainties in the legal proceedings.

    Case Details

    Case Caption Leakas v. Monterey Bay Mil. Hous., LLC
    Docket Number 5:22cv1422
    Court United States District Court, California Northern
    Citation 2024 U.S. Dist. LEXIS 26183
    Order Date February 8, 2024
  • Court Finds Construction Expert’s Testimony Regarding Causation, Damages, and Industry Standards Helpful Despite Limited Role in Underlying Insurance Claim Evaluation

    Court Finds Construction Expert’s Testimony Regarding Causation, Damages, and Industry Standards Helpful Despite Limited Role in Underlying Insurance Claim Evaluation

    This case involved an insurance dispute between Plaintiffs Bradford and Christy Boone (The Boones) and Defendant State Farm Fire and Casualty Company. The allegations centered around State Farm’s alleged failure to fulfill contractual obligations, engaging in bad faith practices, and committing constructive fraud in relation to the insurance claim made by the Plaintiffs. In April 2020, the Boones’ home suffered wind and hail damage. They submitted an insurance claim to State Farm, their insurer. The Boones alleged that State Farm conducted inadequate and delayed inspections of the property and offered inadequate compensation.

    Throughout the claims process, the Boones used contractor Bedlam Construction (Bedlam) and public adjuster Express Estimators (Express). After a September 2020 inspection, the State Farm adjuster allegedly informed Express that it was a “full buy,” leading Plaintiffs, Bedlam, and Express to assume that State Farm would cover the entire claimed damages to the dwelling, pool house, and carport. Subsequently, Plaintiffs engaged Bedlam for repairs. State Farm initiated its initial payments of $25,822.04 in October 2020, following the commencement of these repairs. In December 2020, after the completion of repairs, Plaintiffs approached State Farm to inquire about the status of the claim and outstanding payments. The claims process continued through 2020 and into 2021, prompting Plaintiffs to seek legal representation in January 2021 and file a lawsuit in September of the same year.

    In August 2022, State Farm enlisted Michael Berryman to conduct an additional inspection of Plaintiffs’ property. Berryman provided his estimate of the claim in September. By December 2022, State Farm, relying on Berryman’s estimate, indicated that a supplemental payment would be issued. In January 2023, a payment of $33,232.54 was issued.

    In March 2023, State Farm disclosed Berryman as an expert witness, and his report, based on the August 2022 inspection, documents, and deposition transcripts, became the focus of Plaintiffs’ motion. Berryman intended to testify on: (1) the extent of storm damages on the date of loss and expected repair costs; (2) the reliability of Bedlam’s damage estimate and its performance as the property restoration contractor; and (3) the reliability of Express’s damage estimates.

    Berryman listed his conclusions as follows:

    • Hail impacted the roof systems of the home, detached carport, and pool cabana during their service lives. While the hail caused minor cosmetic denting to gutter screens, downspouts, and copper chimney flues, it was insufficient in size to damage the 30-year laminated asphalt roof shingles of the home or the modified bitumen roof of the pool cabana. Wind damage was observed on the home’s roof but not on the roofs of the detached carport and pool cabana. Interior damage in the home was limited to the ceilings of the Northeast Bedroom and potentially a portion of the Formal Living Room. The work undertaken for the interior by Boone was considered excessive.
    • Bedlam, the involved party, was noted for failing to cooperate with State Farm as expected, and they did not keep their customer, the Boones, adequately informed during the property restoration process. The scope of repair work carried out by Bedlam was considered excessive, surpassing what was necessary to address storm damages.
    • The Boones engaged the services of a public adjuster named Express Estimators (Express). Estimates created by Express on August 17, 2020, and August 18, 2020, were deemed inadequate for determining the required cost to restore the property to its pre-loss condition. These estimates failed to support the Boones’ claim or the scope of work and costs presented by Bedlam.

    The Boones moved to exclude Berryman’s testimony as unhelpful and relying on insufficient basis.

    Construction Expert Witness

    Michael James Berryman is a construction expert witness based in Oklahoma. Berryman earned a Bachelor of Arts degree in Molecular Biology from Vanderbilt University in 1979. He currently serves as the President and CEO of Berryman Enterprises, Inc., an Oklahoma-based general contracting and consulting company that he owns and operates. Berryman also works directly as a general contractor and consultant in Oklahoma City, Oklahoma. Over the course of his extensive career, he has published works relating to the construction industry.

    Discussions by the Court

    The analysis of Plaintiffs’ motion begins with Rule 702, which sets forth criteria for expert testimony admissibility. The rule requires the proponent to demonstrate that the expert’s knowledge will aid the trier of fact, the testimony is based on sufficient data, relies on reliable principles and methods, and reflects a reliable application of those principles to the case. The Court serves as a gatekeeper to ensure the reliability of expert testimony. In this case, Plaintiffs did not contest Berryman’s qualifications or the reliability of his principles and methods but argued that his opinions were unhelpful and based on insufficient facts. 

    Most of the Plaintiffs’ arguments center on the issue of whether Berryman’s testimony would be helpful to the trier of fact. Specifically, Plaintiffs contended that (1) an expert witness was unnecessary in this case, as State Farm did not employ one when assessing Plaintiffs’ insurance claims; (2) Berryman’s testimony would contravene the principles established in Buzzard v. Farmers, 1991 OK 127, 824 P.2d 1105, since he relied on information that was not considered by State Farm during the handling of Plaintiffs’ insurance claims; (3) Berryman’s opinions concerning the performance and estimates of Plaintiffs’ contractors lacked relevance; and (4) Berryman’s viewpoints would encroach upon the trier of fact’s role in assessing witness credibility.

    Plaintiffs contended that Berryman’s testimony would not aid the trier of fact, asserting that State Farm never deemed an expert necessary to assess their claim. State Farm countered by asserting that it did hire Berryman to evaluate the claim and utilized his estimate to provide additional insurance benefits to Plaintiffs. The Court rejected Plaintiffs’ argument, emphasizing the lack of a legal basis to claim that hiring an expert for litigation requires prior expert involvement before litigation commenced.

    Plaintiffs argued that Berryman’s report should be excluded under Buzzard, contending that State Farm used his expert opinion as a post-denial rationalization for denying their claim. Plaintiffs claimed that the majority of materials in Berryman’s report were unknown or not relied upon by State Farm during the initial claim evaluation. The Court rejected the argument that Berryman’s involvement in handling Plaintiffs’ claims should automatically render his opinions admissible, leaving the decision to the district judge, particularly if Berryman testifies as a fact witness under Rule 701.

    A bad faith insurance claim hinges on the actual reason provided by the insurance company when denying the claim, not on a post-denial rationalization, making evidence supporting the latter inadmissible under Buzzard. However, such evidence may be admissible for other purposes. 

    In this case, Berryman’s opinions extend beyond State Farm’s alleged bad faith, encompassing issues such as the physical damage caused by the insured event and the reasonableness of expenses incurred by the Boones. These aspects directly relate to Plaintiffs’ damages, a crucial element of their claims. The relevance of Berryman’s testimony to the trier of fact is evident, as it addresses essential components of the breach of contract and bad faith claims. State Farm argues that if Plaintiffs’ expert testimony is deemed helpful, Berryman’s rebuttal would also provide valuable insights to the trier of fact.

    The remaining portion of Berryman’s testimony focuses on assessing the adequacy of Plaintiffs’ contractor’s performance. The admissibility of expert testimony hinges on its helpfulness to the trier of fact, as established in Wilson v. Muckala, 303 F.3d 1207, 1219 (10th Cir. 2002). In situations where laymen jurors possess sufficient experiences and qualifications to draw conclusions from presented facts, expert testimony becomes unnecessary and inappropriate. Similar to the evaluation of damages estimates, the standards by which contractors operate in specialized circumstances may not be readily understood by laypersons. Moreover, Berryman’s testimony on the adequacy of the contractor’s performance is relevant to determining the causation and extent of Plaintiffs’ damages, thereby serving as valuable information for the trier of fact.

    Plaintiffs contested the inclusion of Berryman’s report and testimony regarding their general contractor, Bedlam, arguing that State Farm’s non-delegable duty of good faith made actions by third parties irrelevant. Berryman provided opinions on Bedlam’s overall performance and practices, including compliance with its contract, industry standards, communication with Plaintiffs, and cooperation with State Farm. Plaintiffs claimed that the actions of third parties like Bedlam were irrelevant, given State Farm’s duty. However, Berryman’s analysis was considered directly relevant to the extent of damages suffered by Plaintiffs, and State Farm argued that it needed further information to evaluate the claim. The Court did not preemptively exclude Berryman’s testimony on the basis of Bedlam’s contract but left room for reconsideration during trial and evaluation of potential confusion or unfair prejudice.

    Plaintiffs argued that Berryman’s testimony was not helpful to the jury, contending that it intruded on the jury’s role in assessing credibility and reliability. The Court rejected this argument, noting that Berryman’s testimony addressing the substance of other experts’ opinions and the reliability of damage estimates had already been deemed admissible. Additionally, the Court rejected the notion that Berryman impermissibly commented on the credibility of other witnesses, citing legal precedent that credibility determinations are generally not appropriate subjects for expert testimony. The Court clarified that Berryman’s report focused on the quality and accuracy of others’ work and provided rebuttal evidence to Plaintiffs’ claimed damages, without making explicit credibility determinations. Consequently, the Court found Berryman’s testimony permissible, allowing him to testify on the reliability of estimates provided by Express, while Bedlam could explain any faults in the estimates.

    Plaintiffs’ final argument revolves around the adequacy of the facts or data on which Berryman based his testimony. They claimed that Berryman relied on inaccurate and incomplete information, specifically noting his omission of depositions from State Farm Team Manager Roger Clark and corporate representative Brett Barthelme. Defendant countered that Berryman did not have access to these depositions at the time of his report and, if the opinions were affected, a supplemental report would have been provided. The Court, applying the standard from Rule 702, aimed to ensure that Berryman’s testimony met the intellectual rigor of his field and concluded that, while Plaintiffs asserted Berryman overlooked certain details, the overall basis for his opinions was likely sufficient. The Court deemed any issues with omitted information as matters of weight, not admissibility, and highlighted the opportunity for cross-examination and presentation of contrary evidence during trial.

    Held 

    The Court issued an order denying Plaintiffs’ Motion to Strike Defendant’s Expert Michael Berryman and his Expert Report. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key takeaways

    This case demonstrates that expert witness testimony may still be helpful and admissible even if the Defendant did not rely on an expert when initially handling the underlying claim or transaction. The testimony cannot serve as a post-hoc rationalization prohibited by Buzzard, but it may permissibly go to other disputed issues like causation and damages.

    Additionally, expert testimony rebutting the opinions and estimates provided by the opposing party’s experts is likely to be helpful to the trier of fact. Evaluating the reliability of evidence goes to weight, not necessarily admissibility.

    Finally, critiquing the methodologies and conclusions of another expert or participant in the events does not always equate to an impermissible credibility determination. Assessing reliability does not usurp the role of the fact-finder in assessing truthfulness.

  • Court admits the testimony of Chemistry Expert Witness despite alleged lack of experiential qualifications

    Court admits the testimony of Chemistry Expert Witness despite alleged lack of experiential qualifications

    Access Business Group International, LLC and Access Business
    Group LLC (collectively, “Amway” or “Plaintiff”) sued Defendant Refresco Beverages after the aluminum cans containing Amway’s electrolyte-rich (i.e., salt-laden) sports drinks corroded and leaked. Refresco, engaged in the business of manufacturing canned and bottled drink products, contended that it merely “bottled” the beverages prepared with the exact ingredients specified and provided by Amway, and in aluminum cans with the specific type of liner required by Amway.

    The core question in this case and on this motion is which party bore the risk of Amway’s products leaking.

    Plaintiff filed a motion in limine to exclude Defendant’s chemistry expert witness, Dr. Gabriel Miller contending he had never worked in aluminum.

    Chemistry Expert Witness

    Dr. Gabriel Miller was a tenured Professor at New York University from 1969 to 2010. He was Professor of Chemistry from 1994 to 2010, and has expertise in geology, organic chemistry, environmental chemistry, catalysis, and the chemistry of energy storage. He was previously a Professor of Engineering, as well as a Professor of Energy and Atmospheric Science at NYU from 1969 to 1994. Miller conducted studies at NYU and, as a consultant, in numerous energy and environmental areas. His work has addressed a variety of renewables, as well as combustion systems, including gas fired cogeneraion, combustion of municipal and hospital waste, and studies of human exposure to toxic emissions from municipal solid waste facilities. He has performed analyses of manufacturing and power plants, as well as fuel production facilities, for compliance with the Clean Air Act Amendments of 1990. He however did his graduation, post-graduation and doctorate in Aeronautics and Astronautics from the New York University.

    Discussions by the Court

    Under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., the proponent of expert testimony must demonstrate the expert’s qualification, reliance on sufficient facts, adherence to reliable principles, and reliable application of those principles to the case. Additionally, the proponent must establish the relevance and assistance of the expert testimony to the jury. Rule 702 adopts a liberal standard for expert opinion admissibility, departing from the previously restrictive Frye standard. However, trial judges, per Daubert, have the responsibility to ensure that expert testimony is both based on a reliable foundation and relevant to the case.

    Refresco presents Miller as a chemistry expert witness. Initially, Refresco contends that, being a rebuttal expert, Miller is subject to a different standard. However, the Court rejects this argument, clarifying that even though Defendants’ experts may have a less demanding task in terms of reliability, they must still satisfy Rule 702. The Court emphasizes that Refresco cannot offer unreliable expert testimony solely because it doesn’t bear the ultimate burden of proof. Miller is not only presented to counter Access’s expert but also to support Refresco’s theory. Ultimately, the Court, after evaluating each element, determines that Miller satisfies Rule 702 by a preponderance of the evidence.

    Access contended that Miller lacked qualification, asserting that his background in aerospace engineering and lack of experience with aluminum made him unqualified. The Court disagreed, considering this characterization too narrow. Miller had served as a chemistry professor for nearly two decades and, even in his aerospace work, dealt extensively with fluid mechanics and chemistry, particularly in areas such as the corrosion of boiler tubes due to electrolytic compounds. Refresco argued that Miller lacked specific experience related to the case’s subject matter, but the Court, citing precedent (In re Zyprexa Prods. Liab. Litig., 489 F. Supp. 2d 230, 285 (E.D.N.Y. 2007), emphasized that as long as the expert possesses educational and experiential qualifications in a closely related general field, lack of expertise in specialized areas directly pertinent to the case does not warrant exclusion. The Court concluded that Miller met this standard.

    Access contested the reliability of Miller’s testimony, claiming it was “conclusory and speculative” and based on generalized theories and a single study about hand sanitizer’s effects on aluminum cans. However, the Court dismissed this argument, asserting that Access had a narrow interpretation. The Court cited Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), stating that if a scientist had not previously been interested in the specific application at hand, extrapolating from general chemistry knowledge might be reasonable.

    The Court emphasized that as long as Miller made an effort to consider alternative explanations and demonstrated rigor, his testimony could be deemed reliable. Miller, in his testimony, discussed the chemistry of the acrylic in the liners and the aggressive nature of the drink formulas. Even though he referenced a hand-sanitizer study criticized by Access, the Court argued that the study could still be helpful to a chemist, and Miller logically applied his chemistry expertise to the events in the case.

    The Court cited, In re Fosamax Prods. Liab. Litig., 645 F. Supp. 2d 164, 173 (S.D.N.Y. 2009), stating that an expert should only be excluded if there are serious flaws in reasoning or methodology. If the testimony falls within the range where experts might reasonably differ, it should go to the jury for their consideration. The Court concluded that Miller’s testimony did not have serious flaws warranting exclusion, and Refresco demonstrated that it had a sufficient basis, relied on reliable principles, and applied those principles reliably to the case’s facts. The Court suggested that Access’s arguments should be presented to the jury, through vigorous cross-examination and presentation of contrary evidence. 

    Access contended that Miller’s testimony wouldn’t be helpful to the jury, asserting that he only addressed the undisputed fact that Access’s drink would corrode bare aluminum. The Court disagreed, stating that this misrepresented the scope of Miller’s testimony. Miller’s testimony, according to the Court, served to rebut Access’s theory by discussing the timeline of corrosion and the interaction between the liner and the “aggressive” drink in question. Moreover, Miller could elucidate other technical evidence in the record, such as Refresco’s enamel testing. The Court highlighted that expert testimony is admissible if it substantially assists the average person in understanding the case, even if it simply explains facts and evidence already in the record. The Court concluded that Miller’s testimony met the bar for relevance, and any doubts about its usefulness should generally be resolved in favor of admissibility, unless strong factors such as time or surprise favored exclusion.

    Held

    The Court denied Access’s motion in limine to exclude Defendant’s expert Gabriel Miller. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    This case demonstrates the liberal admissibility standard for expert witnesses under Federal Rule of Evidence 702 and Daubert. An expert need not have direct experience with the precise subject matter, so long as they have sufficient background in a closely related field to offer helpful testimony. Here, Miller’s extensive chemistry expertise, despite his background in aerospace engineering, was sufficiently applicable to testify about aluminum corrosion. The Court also reiterated that supposed flaws in an expert’s reasoning generally go to the weight of the testimony, not admissibility, unless the flaws reflect an outright unreliable methodology. While Miller relied in part on a study of dubious relevance, he logically applied chemistry principles to support an alternative explanation for the corrosion, warranting admissibility. His testimony was helpful to the jury in various respects, including explaining technical evidence.