This matter arises from Plaintiff Gina Kuhlman’s arrest by Officers David Grasha and Samantha Haggerty of the Cleveland Division of Police, for operating a motor vehicle under the influence (“OVI”) and for refusing to submit to a drug and alcohol test.
To support her case, Kuhlman offered the expert reports of Rajeve Saini and Timothy A. Dimoff. Defendants filed a motion to disqualify the Plaintiff’s experts, Dimoff and Saini.
Law Enforcement Expert Witness
Timothy A. Dimoff has over 40 years of experience in law enforcement procedures, high-risk security issues and private security procedures.
Dimoff graduated from Denison University with a B.A. in Sociology with an emphasis in Criminology. After finishing the police academy, Dimoff served as a patrol officer with the Akron Police Department (“APD”) for approximately two years. During that training period, he obtained “on-the-job training” from a “field training officer” in investigating suspects for driving under the influence.
Following his two (2) years on patrol, Dimoff was “handpicked from the entire department” to be an officer in APD’s “Special Crimes Unit” investigating “higher level types of crimes,” which also required him to be a S.W.A.T. response officer.
Rajeve Saini is the owner of Advanced Medical Services, the company who performed a drug and alcohol screen for Plaintiff at her request on the day after her arrest. He was trained as a phlebotomist and ultimately became certified as a Paramedical Examiner.
He and his company are certified and recognized by the Federal Motor Carrier Safety Administration as Department of Transportation compliant in drug and alcohol collections and training.
Defendants argued that (1) Dimoff lacked specialized knowledge regarding traffic stops or OVI arrests that would help the trier of fact because his only experience with traffic stops and OVI arrests was from “over thirty years ago” and (2) Dimoff’s expert report is predicated upon a flawed methodology.
Analysis
The Court found that Kuhlman has failed to satisfy her burden to show that Dimoff’s testimony is admissible.
First, Kuhlman has not shown what “specialized knowledge” Dimoff possessed that would “help the trier of fact to understand the evidence or to determine a fact in issue” because the determination of whether the Officers had probable cause to arrest Kuhlman is a legal, not a factual issue.
Not only did Dimoff’s testimony demonstrate that he is opining on the ultimate issue or legal conclusion as to whether there was probable cause, but Kuhlman insisted four (4) times in her briefing that the purpose of Dimoff’s expert testimony is to show probable cause.
Therefore, on this basis alone, because Kuhlman exclusively relied on Dimoff’s testimony to establish that probable cause did not exist for the Officers’ arrest of Kuhlman, and because using expert testimony for that purpose is improper, the Court will not consider Dimoff’s testimony.
Second, the Court also agreed with Defendants’ contention that Dimoff’s methodology was insufficient because he failed to consult the Officers’ depositions, Kuhlman’s deposition, Cleveland’s policies and procedures related to the transport of arrestees, or, critically, the bodycam footage of Kuhlman at Chipotle.
Rajeve Saini
Kuhlman claimed that “Saini’s testimony show that on the day after the incident, Plaintiff went into an independent testing lab and gave a urine sample, which provided negative for alcohol and many commonly-ingested drugs.”
Defendants disagreed, arguing that “Saini’s limited testimony as to the test results taken the day after Plaintiff’s arrest is not outside the scope of the knowledge of a juror and is unnecessary for purpose of Rule 702.”
The parties agreed that the test that Saini’s company administered, and the Fairview test results, were negative as to the specific substances tested for. So, that fact is not “in issue.”
And neither is whether Kuhlman actually consumed alcohol or drugs on December 30, 2018, or on December 31, 2018, because the probable cause inquiry turns on what the Officers perceived on the day of the arrest.
It is the Court that must determine the ultimate legal issue of whether the undisputed material evidence demonstrates that the officers had probable cause to arrest Kuhlman. Since Saini’s expert report and deposition testimony offer no assistance in making this determination, the Court concluded that Saini’s expert report and deposition testimony cannot help the trier of fact determine a “fact in issue.”
Held
The Court granted the Defendants’ motion to disqualify the Plaintiff’s experts, Timothy Dimoff and Rajeve Saini.
Key Takeaway:
Dimoff was disqualified as an expert in this case because Kuhlman introduced Dimoff’s testimony for the improper purpose of opining on the existence of probable cause, and because Dimoff did not consult the bodycam footage or depositions in rendering his opinions.
Defendant Sayfullo Habibullaevic Saipov has been charged in a twenty-eight count indictment with, among other offenses, eight counts of murder in aid of racketeering and eighteen counts of attempted murder, arising out of an attack in New York City on October 31, 2017, in which Defendant Saipov-purportedly acting on behalf of the Islamic State of Iraq and al-Sham (“ISIS”)-is alleged to have driven a flatbed truck onto a cycling and pedestrian pathway on the west side of lower Manhattan, killing eight people and injuring at least eighteen others.
Convicting Saipov of these counts requires proof that ISIS is an enterprise engaged in racketeering activity, and that Saipov and ISIS entered into a manifest quid pro quo—murder for membership.
Specifically, the claims of responsibility and leadership messages are highly relevant as proof of the enterprise, and to demonstrate Saipov’s intent, motive, and purpose behind committing the charged crimes in Counts One through Count Twenty-Six.
The Government requests that Dr. Aaron Y. Zelin’s testimony regarding the ISIS leadership messages and claims of responsibility be deemed admissible expert testimony under Federal Rule of Evidence 702.
Terrorism Expert Witness
Dr. Aaron Y. Zelin is the Gloria and Ken Levy Fellow at the Washington Institute for Near East Policy, where he also directs the Islamic State Worldwide Activity Map project. Zelin is also a Visiting Research Scholar in the Department of Politics at Brandeis University, Founder of the widely acclaimed website Jihadology, and a contributing writer for War on the Rock’s Adversarial newsletter. He is author of the book Your Sons Are At Your Service: Tunisia’s Missionaries of Jihad (Columbia University Press), which was nominated for the Neave Memorial Book Prize in 2020. Zelin is currently working on a second book tentatively titled Heartland of the Believers: A History of Syrian Jihadism.
Zelin’s research focuses on Sunni jihadi groups in the Levant, North Africa, the Sahel, and Afghanistan as well as the trends of jihadi governance, online mobilization, and foreign fighting. Moreover, he has conducted field research in Tunisia, Turkey, Iraq, Lebanon, Palestine, and Israel. Zelin has also testified and served as an expert witness in front of the U.S. House of Representatives and with the Department of Justice in federal judicial terrorism trials.
Zelin will explain the means and method of ISIS, including the use of the internet and social media to disseminate its message, radicalize individuals, and communicate with individuals about committing acts of terror wherever necessary.
He will also explain the words and phrases used by ISIS, including those used to entice individuals to become “lone wolves” and provide a guide for those individuals to commit violent acts on behalf of ISIS to gain entry into ISIS. The Court believed that this testimony will assist the jury in understanding “ISIS’ enterprise status, the Defendant’s motive for committing his attack, and whether he provided material support to ISIS.” Moreover, the Defense has not identified a court, in this District or elsewhere, that precluded Zelin from testifying.
Held
The Court granted the Government’s motion to deem expert testimony of Dr. Zelin admissible.
Key Takeaway:
Zelin’s testimony was considered relevant to demonstrate Saipov’s intent, motive, and purpose behind committing the charged crimes in Counts One through Count Twenty-Six. The Court held that it was admissible as per the standards of Rule 702 and would help the jury in understandi “ISIS’ enterprise status.”
Case Details:
Case Caption:
United States of America V. Sayfullo Habibullaevic Saipov
This action arises out of an alleged October 22, 2016 arrest and subsequent criminal prosecution of Plaintiff, which concluded with Plaintiff’s conviction for misdemeanor battery upon Officer Ermeri.
On October 20, 2020, Plaintiff Richard John Lucibella (“Lucibella”) filed a nine-count complaint in state court against Officer Richard Ermeri (“Ermeri”), Officer Savino (“Savino”), and the Town of Ocean Ridge (“the Town”).
Defendants filed a motion to strike a supplemental report provided by Fishkind, arguing that Plaintiff cannot establish substantial justification for the untimely disclosure, that the disclosure constitutes unfair surprise, and that the disclosure is inherently harmful.
Defendants also filed a Daubert motion to exclude testimony and opinions of Plaintiff’s purported expert witness, Henry Hank Fishkind. The crux of the motion to exclude Fishkind’s opinion testimony contended that he did not have the qualifications and experience necessary to render expert opinions on health care economics and that his methodology is neither reliable nor helpful to the jury.
Economics Expert Witness
Henry Hank Fishkind is widely regarded as one of Florida’s premier economists and financial advisors. Fishkind’s career began in the public sector where he worked as an economist and associate professor at the University of Florida. In 1980, Fishkind became the associate director for programs at the University of Florida’s Bureau of Economic and Business Research. During his tenure at the university, Fishkind served from 1979-1981 on the governor’s economic advisory board. He began his career as a private sector consultant when he became president of M.G. Lewis Econometrics in Winter Park, Florida. In 1988, Fishkind formed Fishkind & Associates, Inc. as a full service economic and financial consulting firm.
He has a Ph.D. in economics with specialties in Urban and Regional Economics and in Econometrics.
Defendants’ Motion To Strike Plaintiff’s Untimely Expert Disclosure
The Court held that Fishkind was justified in providing the late-disclosed November Report because he did not have the necessary information, which was disclosed by Defendants after Fishkind’s initial report disclosure.
The remainder of Fishkind’s November Report consisted of information that district courts in the Southern District of Florida have deemed admissible routinely.
Fishkind informed Defendants in his deposition that he would need to produce a supplemental report, and Fishkind’s tardy disclosure was justified based on the aforementioned difficulties with obtaining information, documents, and deposition testimony.
The Court found that the untimely disclosure of Fishkind’s November Report was substantially justified, harmless, and that Defendants are not unfairly prejudiced by the untimely disclosure—thereby satisfying Rule 37‘s admissibility standard.
Defendant’s Motion To Exclude The Testimony And Opinions Of Hank Fishkind
Qualifications
Defendants argued that Fishkind is not qualified to testify with respect to the subject-matter proffered by Plaintiff. The Court disagreed. Fishkind reviewed thousands of pages of financial and other records in this case.
While Defendants argued that Fishkind lacked the qualifications and experience necessary to render opinions about health care economics, the Eleventh Circuit has allowed expert testimony in similar situations.
Reliability and Helpfulness
Fishkind used a “before and after” methodology to quantify Lucibella’s economic damages.
In calculating economic damages using the “before and after” method, Fishkind measured other factors such as economic considerations, regulatory changes, and Centers for Medicare & Medicaid Services policy changes, all of which could have explained the deterioration of the financial performance of Lucibella’s business outside of the impacts stemming from alleged wrongful acts. Fishkind’s report also supplied methodology explaining how he calculated the deterioration in risk rating of Lucibella’s business.
The Court found that most of the facts and/or data that Fishkind relied upon in calculating economic damages are the kind of information that economic experts would reasonably rely on in their field of expertise and in accordance with Federal Rule of Evidence 703.
The Court, however, held that Fishkind’s report contains two specific opinions that are not rooted in well-established and reliable methodology and are therefore inadmissible. Fishkind merely relied on Lucibella’s own statements, never quantified the impact of Lucibella’s defense on the management of his business, and never quantified the amount of time that Lucibella devoted to his defense.
Finally, as it relates to the remaining claims in this matter—excessive force (Count II) and unlawful search of property (Count VII)—the Court found a sufficient nexus between the alleged acts from the date of the subject incident, the State of Florida disqualifying Lucibella from employment with State-licensed healthcare providers and the State’s Medicaid Program, and Fishkind’s economic calculations.
Held
The Court granted in part and denied in part the Defendant’s Daubert motion to exclude testimony and opinions of Plaintiff’s purported expert witness Hank Fishkind.
Key Takeaway:
Fishkind’s expert report utilized metrics such as (1) risk rating impact and (2) reduction in growth rate to quantify his “before and after” methodology. The Court found Fishkind’s reasoning and usage of the “before and after” methodology sufficient to withstand Daubert scrutiny.
In calculating economic damages using the “before and after” method, Fishkind reviewed tax returns for Lucibella’s umbrella company along with detailed profit/loss statements for the underlying businesses. Additionally, Fishkind analyzed financial documents from 2012 to 2020 related to Lucibella’s businesses.
Fishkind’s damages opinion that relies upon the economic impact of the State’s disqualification is admissible—provided that sufficient facts are adduced and found at trial to support the existence of the alleged acts, the disqualification of Lucibella’s business, and causation that connects them.
Plaintiff Amy Lee Sullivan is suing Defendant Flora, Inc. for copyright infringement of 33 illustrations that she created for Flora as part of two advertising campaigns.
Sullivan offered the testimony of a financial evaluation expert, Dennis Kleinheinz. Sullivan wanted to present Kleinheinz’s calculations on Flora’s profits but the Court reserved the ruling on Sullivan’s motion regarding the testimony of Dennis Kleinheinz when Flora filed its objections.
Plaintiff also retained Danny Mager and Flora filed objections against his opinion that each additional use of each of Sullivan’s registered illustrations have a market value of between $3,000.00 and $6,000.00.
Marketing Expert Witness
Danny Mager is employed by Staples Marketing, LLC, which does business as AFFIRM Agency. The AFFIRM Agency is a Milwaukee County, Wisconsin full-service advertising agency originally established in 1985. Mager is a principal and the marketing director of AFFIRM. He is a 50% owner of that company as well. Mager has 30 years of creative, marketing and advertising industry experience. He is a member of various advertising and marketing industry professional and trade associations including the American Advertising Federation-Madison Chapter, the Agency Management Institute, Second Wind Agency Network and the Business Marketing Association.
Dennis Kleinheinz is a partner with the Middleton, Wisconsin CPA firm of Meicher CPAs, LLP. He received his Bachelor in Business Administration degree from the School of Business at the University of Wisconsin-Madison. Kleinheinz graduated in 1977 “with distinction”.
The Court held that Sullivan may not rely on Mager to establish that any of the individual illustrations have independent economic value. Mager’s testimony may be relevant to whether or not any individual illustration constitutes a “work,” but it does not conclusively show that any illustration is not nonetheless part of a “compilation.”
Even if Sullivan establishes with other evidence that all of the illustrations have independent economic value, Mager’s opinion would not help to establish the economic value for a particular illustration because Mager did not base his opinion on any independent evaluation of the specific illustrations at issue. So if Sullivan wanted to rely on Mager to place a value on each illustration, Mager would have needed to amend his report to conduct an evaluation of each illustration. Without such an evaluation, the Court held that Mager’s opinion that each use of an illustration has a market value of $3,000 to $6,000 has no foundation and is therefore inadmissible.
Moreover, Flora also filed a motion to exclude expert testimony on statutory damages. The only expert testimony that Sullivan wishes to present on statutory damages is Mager’s opinion that the market value of each illustration is $3,000 to $6,000. The Court explained in its ruling on Sullivan’s motion regarding Danny Mager why that opinion is not admissible. The Court, therefore, granted this motion.
Held
The Court held that Sullivan may not rely on Mager’s opinion that each use of each illustration has a market value of $3,000 to $6,000.
Key Takeaway:
Finding that an illustration is entitled to a separate statutory damages award requires first finding that the illustration has independent economic value. Thus, Mager’s testimony, which assumed that Sullivan’s illustrations were each entitled to a separate statutory damages award (i.e., assumed the illustrations had independent economic value), cannot now (without more) be used to establish that those same illustrations have independent economic value in the first place. Mager’s testimony may be relevant to whether or not any individual illustration constitutes a “work,” but it does not conclusively show that any illustration is not nonetheless part of a “compilation.”
Mager’s testimony assumed that each of the 33 illustrations were entitled to a separate statutory damages award but he did not base his opinion on any independent evaluation of the specific illustrations at issue. Indeed, Mager did not even know how many illustrations there were, stating “I think it was 44 illustrations.”
Case Details:
Case Caption:
Sullivan, Amy V. Flora, Inc.
Docket Number:
3:15cv298
Court:
United States District Court for the Western District of Wisconsin
The Defendant, Laura Perryman, the founder and former CEO of Stimwave Technologies Incorporated and Stimwave LLC (together, “Stimwave”), was responsible for overseeing the design of the StimQ Peripheral Nerve Stimulation (“PNS”) System, a medical device (the “Device”) aimed at treating chronic pain by using electrical currents to target peripheral nerves, that is, the nerves outside the spinal cord. The device comprised four key components during the time at issue: the Lead, the Battery, the Pink Stylet, and the White Stylet. The Lead served as an implantable electrode array to stimulate the targeted nerve, while the externally worn Battery supplied power to the Lead. The Pink Stylet, containing copper, was implanted into the body to act as an “antenna,” lengthening the transmission range of the Battery.
Stimwave labeled both the Pink Stylet and the White Stylet as “receivers” in its product materials for the Device. Perryman advised medical providers that they could bill insurers for implanting the White Stylet as a receiver using Current Procedural Terminology (CPT) code 64590. However, it was established that the White Stylet lacked copper and therefore could not function as a receiver.
On December 19, 2023, the Government filed a superseding indictment against the Defendant, charging her with one count of conspiracy to commit health care fraud and wire fraud, one count of health care fraud, and one count of securities fraud. Both the Government and the Defendant filed their respective motions in limine on January 12, 2024. The Government’s motions included a motion to exclude the testimony of Dr. David A. Spinner. His expert report was attached to the Government’s motion. The parties filed their opposition to these motions on January 19.
During the final pretrial conference on February 2, the Court excluded Spinner’s testimony under Fed. R. Evid. 401, 403, and 702. One of Spinner’s opinions focused on the White Stylet’s functionality, suggesting it served a medical purpose by preventing fluid ingress into the Lead and possibly averting collapse of the Lead’s lumen. However, the Court deemed Spinner’s opinion on the functionality of the White Stylet inadmissible, noting a lack of description on how he formed his opinion or his experience with the White Stylet or his basis for opining that it served a medical purpose. The expert’s opinion was merely his assertion without providing any evidence of testing or experimentation with the White Stylet, nor did he reference any widely accepted views within the medical community. The Court also ruled Spinner’s speculation on the White Stylet’s ability to prevent collapse of the lumen as inadmissible.
Spinner also opined that reimbursement claims for implanting the Device could have been appropriately submitted to medical insurers using CPT code 64590, regardless of whether the White Stylet, the Pink Stylet, or no stylet was used with the StimQ PNS System. The Court emphasized the importance of the jury’s familiarity with the CPT codes, as they facilitated payment to medical providers. However, Spinner’s expertise on CPT codes was questioned, as he did not demonstrate specialized knowledge as to the interpretation or application of CPT codes. His opinion on CPT codes lacked explanation and failed to cite any sources or authorities on which his opinion was based. Furthermore, the Court deemed his opinion on CPT codes irrelevant, as it did not address the fact that Stimwave had marketed the White Stylet as a receiver.
Following the Court’s ruling, the Defendant sought leave to supplement Spinner’s expert report. The Court approved the request, instructing the Defendant to submit the supplemental report to the Government by February 6. Additionally, the Court asked the Defendant to identify any section in the Stimwave materials that detailed the functionality of the White Stylet as Spinner did. On February 9, the Government renewed its motion to exclude Spinner’s testimony, which the Defendant opposed on February 12.
Pain Management Expert Witness
David A. Spinner is the Director of Pain Management at White Plains Hospital. He is double board-certified and specializes in interventional spinal care and musculoskeletal care, along with a sub-specialty in peripheral nerve stimulation (PNS) for chronic pain. Previously, Spinner served as the Medical Director at Westchester Pain Management. He obtained his Doctor of Osteopathic Medicine degree from the New York College of Osteopathic Medicine and completed his post-graduate training with an internship at Maimonides Medical Centre followed by a residency at Mount Sinai School of Medicine as well as a fellowship at Harvard Medical School’s Beth Israel Deaconess Medical Centre. Spinner is also recognized as the lead author and editor of “The Atlas of Ultrasound-Guided Musculoskeletal Injections,” one of the earliest textbooks on the subject of musculoskeletal injections. With extensive experience, Spinner has performed numerous PNS procedures and regularly trains other physicians in this field.
Discussions by the Court
The Government renewed its motion to exclude the opinions offered by Spinner in the February 6 report, as unreliable, unsupported, irrelevant, and unduly prejudicial. Spinner was given the chance to supplement his earlier report to demonstrate the reliability of the opinions he expressed in his initial report as per the requirements of Rule 702 and Daubert. The Court noted his failure to do so as well as addition of new opinions regarding CPT code and the functionality of the White Stylet as well as an entirely new opinion regarding patient harm, all deemed untimely and thus stricken. Furthermore, the Court observed that the Defendant could not establish the admissibility of any opinions in the February 6 report under Rule 702.
Spinner’s February 6 report asserted that CPT codes were “drafted in a manner that contemplated application to the medical procedure employed.” Spinner acknowledged their susceptibility to varying interpretation. Drawing from his familiarity with the Device itself and the implantation procedures for neurostimulator devices to treat chronic pain, he opined that the procedure for permanently implanting the StimQ PNS System “came within the plain language interpretation” of CPT code 64590, regardless of the use of the White Stylet, the Pink Stylet, or no stylet, as the procedure always involved the insertion of a receiver. Spinner also shed some light on the process of drafting CPT codes and discussed the revision of CPT code 64590 in January 2024, suggesting that the revised CPT code 64590 and a new code that was created were “issued to cover new and innovative PNS devices such as the StimQ PNS System.”
The Court noted that Spinner did not provide any basis for his expertise in the drafting or revision of CPT codes. As a physician specializing in pain management, he is personally responsible for claims submitted to insurers when he has implemented PNS devices. He highlighted a book for which he is the lead author that addressed the use of ultrasound techniques, which he explained were used to properly place neurostimulators implanted to treat peripheral nerve pain. He trained other physicians in PNS procedures. During that training, he was frequently asked to give advice on CPT codes and would typically advise that the prior version of CPT Code 64590 was applicable prior to the release of new CPT codes in 2024.
Spinner did not demonstrate experience with implanting the White Stylet, which was necessary for him to be able to opine on the use of CPT codes for that procedure. He did not say that he ever implanted the White Stylet as a component of the StimQ PNS System. While he mentioned that he led trainings on implanting the Device, it was unclear whether the White Stylet was a component of the Device at that point in time and whether his advice on CPT Codes addressed what code should be used in connection with a procedure that included implanting the White Stylet. Spinner did not address the central allegations of the indictment, namely, that Perryman and her company informed medical providers that the White Stylet was a receiver and that they could use CPT code 64590 to bill insurers for implanting it as a receiver.
In summary, the revised report did not address the deficiencies pointed out by the Court during the February 2 conference. Consequently, Spinner’s testimony on CPT codes was excluded under Rule 702 due to being beyond his areas of expertise, unreliable, and irrelevant. Pursuant to Rule 403, it was also excluded due to the risk of unfair prejudice and the likelihood of confusing the jury and diverting their attention from the pertinent issues. These concerns were deemed to outweigh any minimal probative value the testimony may have had.
In her opposition to the Government’s motion to preclude Spinner from testifying, the Defendant did not suggest that Spinner had any expertise in CPT codes beyond his experience as a practitioner. She argued that Spinner’s experience as a provider qualified him to serve as an expert because it is the provider’s responsibility to determine the applicable CPT code for their medical procedures. However, Spinner’s experience as a provider did not qualify him to opine on the drafting or revision of CPT codes, as he was not involved in those processes. Therefore, any discussion of those topics in his February 6 report was beyond his area of expertise and deemed inadmissible.
The Court observed that, while the Defendant demonstrated that Spinner was an experienced practitioner in the use of PNS devices, it was worth noting that his expert report did not address his experience with the White Stylet. He did not explain whether he had personally ever implanted the White Stylet or trained others to do so, or decided in either context which CPT code should be used to bill for a procedure involving the White Stylet being implanted. His experience in selecting CPT codes when implanting PNS devices did not automatically qualify him as an expert in CPT codes. Similarly, answering questions about CPT codes during training sessions about implanting a PNS device did not make him an expert on the codes. These deficiencies were relevant to determining whether he was qualified to serve as an expert on CPT codes in general and specifically as an expert on CPT codes relevant to the issues in this case.
Spinner asserted that the White Stylet served several medical functions but stopped short of discussing its potential role as a receiver. Instead, he stated it “filled the inner lumen, thereby helping to prevent fluid ingress into the stimulator receiver and electrode array, which could result in a loss of function and heightened risk of infection or other collateral complications.” He added that it “would also assist in preventing the collapse of the lumen and in stabilizing and providing additional rigidity to stimulator receiver.”
Spinner’s opinion regarding the functionality of the White Stylet was excluded under Rules 702 and 403. The Court noted that Spinner had provided no basis to establish that this testimony constituted a reliable expert opinion as required by Rule 702 and Daubert. Any probative value, which was minimal, was substantially outweighed by the risks of confusion, misleading the jury, and unnecessarily prolonging the trial.
Spinner did not explain the basis for his opinions regarding functionality. He did not refer to any testing that supported his views on the necessity to use the White Stylet, which was marketed as a receiver, to perform separate functions. Nor did he reference any company-issued literature describing these functions as essential for the success of its electrode array or as reasons for implanting the White Stylet. Despite the Court’s request during the February 2 conference for the Defendant to identify any relevant company-issued literature regarding functionality, no such documentation was provided. Additionally, Spinner did not describe his own experience with the White Stylet, such as explaining why he deemed it necessary to implant it despite knowing it was not a receiver. Overall, there was no support or explanation provided to establish that these opinions on functionality were based on a reliable foundation or were anything other than Spinner’s assertions.
The two documents cited by Spinner did not fill this gap. One was a document co-authored by the Defendant. While the Defendant would be given an opportunity at trial to explain her understanding of functionality, an expert could not serve as a substitute for that testimony under Fed. R. Evid. 704(b). In any event, Spinner did not quote any passage explaining that the stylet assisted the functionality of the Lead by sealing the lumen, preventing the lumen’s collapse, or stabilizing the Lead. His citation to a book regarding pacemakers was similarly vague.
Spinner’s testimony was not salvaged by his observation that he was unaware of any study suggesting that leaving an implantable device “open” in the body was “desirable or beneficial.” He added that there was no PNS device on the market that left the device “open.” However, Spinner did not explain how the White Stylet prevented fluid ingress into the lumen, describe any testing to confirm White Stylet’s success in that function, or compare its effectiveness in doing so with other solutions for that issue. Consequently, his testimony amounted to a bald, unsupported statement of opinion.
In her opposition to the Government’s motion, the Defendant argued that Spinner’s expert opinion was reliable because it was based on his professional experience. However, it was noted that Spinner did not describe any professional experience with the White Stylet, the functions it has served when he implanted the Device, or how he knew that the White Stylet prevented fluid from entering the Lead. He also did not mention ever implanting the Device during the years when it was sold with the White Stylet, nor did he state that he discussed the functionality of the White Stylet during the training sessions he conducted on PNS devices. Therefore, even if the use of the White Stylet in his own practice would have been sufficient to qualify Spinner as an expert on its functionality, his expert report did not describe such use. As a result, his testimony was not sufficiently reliable to meet the Rule 702 standard.
Finally, the Defendant asserted that Spinner’s testimony was supported by a learned treatise, specifically the publication co-authored by the Defendant in 2015. However, Spinner failed to explain why the article was trustworthy or authoritative. Although defense counsel provided citation to the article, it did not address the role of a stylet in preventing fluid from entering the lumen of the Lead, preventing the collapse of the lumen, or stabilizing the Lead. The only function of the antenna discussed was its function as a receiver. Therefore, the article co-authored by the Defendant did not provide a basis to establish that Spinner’s opinion about the functionality of the White Stylet was supported by a learned treatise or was otherwise sufficiently reliable to be presented to a jury.
Spinner added new opinions on the topic of patient harm that were not included in his initial report. He said that he was unaware “of any indication” that the use of the White Stylet “caused patient harm.” Additionally, he added that it was “highly unlikely” in his experience that its use would be the cause of any “actual patient harm.”
Those opinions were deemed untimely by the Court as they were not included in Spinner’s expert report due on January 5. Consequently, they were excluded solely on this basis. Additionally, the Defendant failed to demonstrate the admissibility of Spinner’s testimony regarding patient harm as evidence.
In any event, it appeared that the reason for proffering these opinions no longer existed. The Defendant had feared that the Government would offer evidence at trial suggesting that the use of the White Stylet had caused patient harm. For this reason, one of her motions in limine had requested that the Government be precluded from introducing such evidence. The Court had directed the parties to confer regarding the issue. In a letter dated February 13, the Government represented that it would not offer evidence of patient harm unless “the defense opened the door to the question of patient harm or benefit.”
The Defendant argued that she had a right to rebut the Government’s experts and that excluding Spinner’s testimony would deprive her of a fair trial. She pointed out that Spinner was a recognized expert in PNS procedures. However, these arguments did not address the legal barriers to admitting Spinner’s testimony. His proposed testimony was deemed inadmissible under well-established legal standards. The Rules of Evidence were crucial in safeguarding a party’s right to a fair trial, and the Defendant was allowed to present evidence and challenge the Government’s evidence within the boundaries set by those rules.
Held
The Court granted the Government’s renewed motion in limine of February 9 to exclude the expert testimony of David Spinner.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
The expert testimony provided by Spinner in the case against Laura Perryman, the founder of Stimwave Technologies, faced numerous challenges and ultimately was excluded by the Court. Spinner’s opinions on the functionality of the White Stylet, a key component of the StimQ Peripheral Nerve Stimulation System, lacked sufficient basis and evidence, rendering them unreliable and irrelevant under Rule 702 and Rule 403. Despite attempts to supplement his initial report, Spinner failed to address the deficiencies highlighted by the Court, leading to the exclusion of his testimony. His expertise on CPT codes was also questioned, as his report demonstrated no specialization in this area and failed to address critical allegations in the indictment. The Court’s decision underscores the importance of expert testimony meeting stringent legal standards to ensure fairness and reliability in judicial proceedings.
