Expert Witness Profiler

Tag: Analysis

  • Environmental Engineering Experts’ Source-Identification Conclusion Excluded

    Environmental Engineering Experts’ Source-Identification Conclusion Excluded

    In this water contamination case, Defendants Dow Chemical Company and Vibrantz Corporation (collectively, “Defendants”) challenge the proof which Plaintiff Suffolk County Water Authority (“Suffolk”) proffers through its expert witnesses that dioxane-stabilized TCA is the source of the contaminant 1,4-dioxane in what it calls the TCA Claim Wells.

    Defendants did so through the opinions of their own expert witnesses John A. Connor and David T. Adamson. Suffolk did not challenge the bulk of the Connor/Adamson opinions, which are rebuttals to Suffolk’s experts. Rather, Suffolk filed a motion to exclude one subset of those opinions, namely, those opinions which affirmatively assert well-by-well conclusions as to source identification of the 1,4-dioxane in the wells.

    Environmental Engineering Expert Witnesses

    John A. Connor has over forty years of experience in environmental engineering, including specialization in “environmental site investigation, human health and ecological risk assessment, corrective action design, water resource development and remediation, and design and permitting of treatment facilities.” 

    He received an M.S. in Civil Engineering from Stanford University and is a registered Professional Engineer, a licensed Professional Geoscientist, and a Diplomate in the American Academy of Environmental Engineering.

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

    David T. Adamson received his Ph.D. in Civil and Environmental Engineering from the University of Iowa and has over twenty-two years of research and environmental consulting experience. He has conducted research and authored technical articles on a wide range of topics related to subsurface contamination, including serving as Principal or co-Principal Investigator on research projects sponsored by the U.S. Department of Defense on topics such as 1,4-dioxane fate, transport, and treatment. Adamson has also consulted on a broad range of topics, including “chemical fate and transport, site investigation, remedy screening, risk assessment, remedial design, drinking water distribution, and litigation matters.”

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

    Discussion by the Court

    II. The Connor/Adamson Report

    Connor and Adamson opined that TCA is the source of the 1,4-dioxane in only a small fraction of the TCA Claim Wells. Rather, they asserted, that the predominant source is septic system and wastewater releases. This conclusion appears in Section 3.3 of their Report, which consisted of pages 70-76 out of 160 pages, plus a mass of appended charts. Connor and Adamson opined that they identified ten relevant “lines of evidence” and that they used a “weight-of-evidence” methodology to assess the likely source of 1,4-dioxane in each of the TCA Claim Wells.

    The lines of evidence include, for example, TCA detections in each well, and land use within the capture zone. Section 3.3 contains an explanation of the lines of evidence as well as the experts’ ultimate conclusions that the weight of the evidence is consistent with a septic system and wastewater source of 1,4-dioxane in the vast majority of well fields containing TCA Claim Wells.

    Upon review of the Connor/Adamson Report and the appended charts, the Court found that there was in fact no well-by-well analysis in the report or in the charts.

    In the Report, Connor and Adamson did not assign numeric weight to the various lines of evidence or follow a decision tree to reach an ultimate conclusion.

    Analysis

    Defendants acknowledged that Section 3.3 contains only (1) a discussion of the ten lines of evidence and (2) Connor and Adamson’s ultimate conclusions as to the likely source of 1,4-dioxane in each of the TCA Claim Wells.

    Indeed, review of these appendices reveals a complete absence of analysis as to how the experts reached those final conclusions. Put another way, it is impossible to glean what the experts’ thought processes were in considering the cumulative effect of the thousands of data points that make up the purported “full form” well-by-well analysis.

    The Court rejected Defendants’ argument that the detailed narratives through which the experts intended to present their testimony, which they estimate could take up to three hours per well, can be discerned merely by looking at the charts. On the contrary, it is clear that Defendants intended to use the trial testimony to supply the missing explanations as to how each line of evidence factored into the ultimate conclusion as to each well.

    Indeed, if the charts themselves were a sufficient basis for understanding the experts’ reasoning in reaching their ultimate source identification conclusions, as the Defendants contended, then—after the experts’ general testimony applicable to all wells—the Defendants would need only to present the charts to the jury. 

    There is no way for the Court to evaluate whether the methods the experts used or the judgment they applied was reliable or not. As an example of why this is important, consider the undisputed fact that, with respect to some wells, the experts’ lines of evidence point to inconsistent or conflicting results as to the source of the 1,4 dioxane. Nowhere did the experts provide any analysis of how they resolved—or can resolve—such inconsistencies or conflicts. Rather, it is clear that their application of judgment is separate for each well, yet no effort has been made in the Report to set forth how those individual judgments were made.

    Finally, Defendants’ suggestion that they can have their experts describe in narrative form how they reached their source identification conclusions well-by-well for the first time at the trial, without having provided their analyses pre-trial, violated fundamental principles of pre-trial expert discovery.

    Held

    The Court granted Suffolk’s motion to exclude John Connor and David Adamson’s well-by-well assessment of dioxane sources.

    Key Takeaway

    The question is not simply whether Connor and Adamson may consider various lines of evidence together in reaching a conclusion. Rather, as explained above, the problem is that their Report does not present any analysis of how the various lines of evidence led them to their ultimate conclusions. In these circumstances, the Court is unable to determine the reasoned bases for Connor and Adamson’s analysis and whether it is truly reliable “at every step.”

    Case Details:

    Case Caption: Suffolk County Water Authority V. The Dow Chemical Company
    Docket Number: 2:17cv6980
    Court Name: United States District Court, New York Eastern
    Order Date: March 23, 2026
  • Cellular Analysis Expert’s Testimony Involving the Use of CDR and TAR Admitted

    Cellular Analysis Expert’s Testimony Involving the Use of CDR and TAR Admitted

    The Defendant, Jerry Ray Brown, was charged with one count of attempted bank robbery.

    Brown ostensibly attempted to take by force, violence, and intimidation from the person and in the presence of bank employees, money belonging to and in the care, custody, control, management, and possession of the FNB Community Bank in Choctaw, Oklahoma. 

    Defendant filed a motion in limine challenging the testimony of Special Agent Andrew Kerstetter.

    Cellular Analysis Expert Witness

    Andrew Kerstetter has been with the Federal Bureau of Investigation in Oklahoma City since October 2007. As a Special Agent with FBI, he is a member of the FBI’s Cellular Analysis Survey Team (CAST) program, is assigned to the Oklahoma City Safe Streets Task Force and Violent Crime Squad and has participated in numerous types of FBI investigations.

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

    Discussion by the Court

    Defendant did not appear to contend that any particular methodology employed by Agent Kerstetter failed under Daubert. Rather, Defendant contended that CAST analyses in general are not based on reliable scientific principles and cannot be used to “pinpoint” Defendant’s location. However, as stated above, the government has clarified that the CAST analysis did not pinpoint Defendant’s phone at a precise location, but only placed the phone in a general location.

    Defendant also argued that the CAST analysis “is based on the false assumption that a cell phone connects or is located to the closest cell phone tower at the time a call is placed or received.” However, the government’s explanation of Agent Kerstetter’s CAST analysis did not support Defendant’s argument. 

    Based on the government’s description of Kerstetter’s testimony, the Court anticipated that Kerstetter’s report would analyze the subject phone’s call detail records (‘CDRs’) and timing advance records (‘TARs’) to approximate the distance between the phone and connecting tower in order to provide a general location.

    Other courts have deemed such analyses of CDRs and TARs sufficiently reliable under Daubert. 

    Held

    The Court denied the Defendant’s motion in limine challenging the testimony of Andrew Kerstetter.

    Key Takeaway:

    As noted by the government, courts routinely allow expert testimony involving cell-tower analyses to determine the general location of a phone, provided that proper foundation for the testimony is laid.

    Case Details:

    Case Caption: USA V. Brown
    Docket Number: 5:25cr188
    Court Name: United States District Court, Oklahoma Western
    Order Date: October 31, 2025
  • Geriatrics Expert’s Cause-of-Death Opinion was Deemed Reliable

    Geriatrics Expert’s Cause-of-Death Opinion was Deemed Reliable

    James Dean Bloomer, as the surviving child of decedent James Wright Bloomer; and the Estate of James Wright Bloomer, through James Dean Bloomer Jr. as Administrator of the Estate, brought this action against Defendants HMG Park Manor of Westwood, LLC and HMG Services, LLC.

    Plaintiffs alleged wrongful death and survival claims under Kansas law arising out of decedent James Wright Bloomer’s treatment at a skilled nursing facility, HMG Park Manor of Westwood, LLC d/b/a Tanglewood Nursing and Rehabilitation (“Tanglewood”), located in Topeka, Kansas.

    Plaintiffs filed a Daubert motion to exclude certain opinions of Defendants’ retained expert Jeffrey A. Kerr DO.

    Geriatrics Expert Witness

    Jeffrey A. Kerr has been a physician since 1985 in many hospital settings. He is board certified in family practice, with an added qualification in geriatrics. He is also a certified medical director for long term care. Kerr has been affiliated with several different nursing facilities during most of his tenure as a physician, and he has served as an expert witness in many cases since 2020.

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

    Discussion by the Court

    Plaintiffs asserted that certain opinions of Kerr are made without analysis and are therefore conclusory. Defendants responded that these are two of several opinions that are based on Kerr’s preceding analysis in the report of Bloomer’s medical records for the four years leading up to his death.

    Kerr began his report by listing a multitude of deposition transcripts, exhibits, pleadings, medical records, and other documents he reviewed before rendering his opinions. Also, Kerr considered Bloomer’s extensive medical history and medications, and constructed an exhaustive timeline of his treatment going back to June 16, 2018. 

    The Court found that Kerr’s review of Bloomer’s medical records, in light of his training and experience that focuses on geriatric care, was sufficient for him to offer a reliable opinion on Bloomer’s cause of death. Plaintiffs failed to identify a specific reliability issue in the records Kerr relied on in formulating his opinions.

    To the extent Plaintiffs maintained that there are other facts that Kerr failed to consider, or that the timeline is flawed or missing information, those are matters for cross-examination because they go to the weight of the testimony, not its admissibility. The Court has reviewed the report and found no “great analytical gap between the data and opinion proffered” that would render it unreliable.

    Held

    The Court denied the Daubert motion to exclude certain opinions of the Defendants’ retained expert Jeffrey A. Kerr DO.

    Key Takeaway:

    Kerr was not required to categorically exclude each and every possible alternative cause—to require otherwise would mean that few experts would ever be able to testify. Instead, he was required to provide objective reasons for eliminating alternative causes. Therefore, the Court found that Kerr has provided an objectively reliable basis for his opinion.

    Case Details:

    Case Caption: Bloomer V. HMG Park Manor Of Westwood LLC
    Docket Number: 2:24cv2059
    Court Name: United States District Court, Kansas
    Order Date: August 22, 2025
  • Economics Expert Witness’ Opinion on the Necessity, or Lack Thereof, of Expert Economic Analysis Excluded

    Economics Expert Witness’ Opinion on the Necessity, or Lack Thereof, of Expert Economic Analysis Excluded

    The tenant-Plaintiffs in this case alleged that the Defendants, a national real estate investment and property management conglomerate, use illegal leases and engage in practices that violate the Plaintiffs’ rights under Washington’s Residential Landlord Tenant Act (“RLTA”).

    The Plaintiffs also contend that the Defendants breached their duty of good faith and fair dealing. They sought damages, declaratory relief, and prospective injunctive relief.

    Plaintiffs asserted additional claims which have been dismissed. Certain grounds for their claims under the RLTA, and for the breach of the duty of good faith and fair dealing, were dismissed. Additionally, their claims for violations of the Washington Consumer Protection Act, unjust enrichment, retrospective injunctive relief, rescission, restitution, and disgorgement have also been dismissed.

    After their first motion to certify a class was denied without prejudice, the Plaintiffs moved for a second time for class certification, appointment of class representatives, and appointment of class counsel. Defendants filed a motion to exclude Plaintiffs’ damages expert, Robert Kneuper.

    Economics Expert Witness

    Robert Kneuper is currently a Managing Director and Expert Economist with McClave + Associates (“MC+A”), formerly Infotech Consulting. He has also served as an Adjunct Professor at Loyola University Chicago School of Law, Charleston Southern University, and Johns Hopkins University, where he has taught courses in antitrust economics, managerial economics, corporate finance, and political economy. With over 30 years of experience, Kneuper has worked as an antitrust, regulatory, and financial economist in both the federal government and private consulting. He has contributed to a wide variety of economic and financial consulting matters for private clients and government bodies.

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

    Discussion by the Court

    August 15, 2023 Opinion

    Kneuper’s August 15, 2023 opinion was on the putative maintenance and repair subclass’s damages.  The putative maintenance and repair subclass and its claims are not suitable for class certification. Accordingly, the Court decided that Kneuper’s opinion on Plaintiffs’ classwide RLTA repair and maintenance damages claims is not “relevant to the task at hand” relating to those claims.

    September 17, 2024 Supplemental Opinion

    In his September 17, 2024 supplemental declaration, Kneuper opined that “expert economic analysis is unnecessary” with respect to the other subclasses’ damages claims. He contended that fees charged could be presented to a factfinder in a “summary fashion, such as through a ‘summary, chart, or calculation’ which [he] underst[ood] is permitted under Rule 1006 of the Federal Rules of Evidence.” According to Kneuper, “a person with general familiarity and experience with reviewing financial documents (e.g. an accountant) could review and analyze Defendants’ ledgers and perform such calculations.”

    The Court excluded Kneuper’s opinion, that no expert economic analysis is necessary to determine the remaining subclasses damage because there is no showing that this opinion will “help the trier of fact to understand the evidence or to determine a fact in issue.”

    Further, to the extent that Kneuper opines on whether the subclasses’ damages evidence is admissible under Rule 1006 of the Federal Rules of Evidence, it was held that those are determinations for the Court.

    Held

    • The Court granted in part and denied in part the Plaintiffs’ amended motion for class certification and for appointment of class representatives and class counsel.
    • The Court granted Defendants’ motion to exclude the opinions of Robert Kneuper, Ph.D.

    Key Takeaway:

    Kneuper’s opinion that no expert economic analysis is necessary to determine the remaining subclass’s damages was considered unhelpful. Moreover, Kneuper was not allowed to opine on whether the subclass’s damages evidence is admissible under Rule 1006 of the Federal Rules of Evidence because the Court was meant to determine that issue.

    Case Details:

    Case Caption: Richmond Et Al V. Home Partners Holdings Llc Et Al
    Docket Number: 3:22cv5704
    Court: United States District Court, Washington Western
    Order Date: November 19, 2024
  • Law And Legal Expert Witness’ Testimony as to the Existence of Probable Cause Excluded

    Law And Legal Expert Witness’ Testimony as to the Existence of Probable Cause Excluded

    In this action, the Frazier Parties alleged that the Eagle Air Parties lacked probable cause to sue them for defamation and other similar claims in an underlying lawsuit that concluded in 2020 (the “Underlying Action”). The Frazier Parties claimed that the Underlying Action damaged Sentinel’s existing or prospective client relationships, resulting in lost profits of at least several million dollars.

    Jeffrey Frazier brought a claim for wrongful use of civil proceedings. A claim for wrongful use of civil proceedings requires a Plaintiff to show, among other things, that the Defendant acted without probable cause. Frazier’s expert, Professor Jane Bambauer‘s proposed testimony sought to opine as to the existence (or lack thereof) of probable cause for the claims in the underlying suit.

    Defendants Eagle Air Med Corporation and Valley Med Flight, Inc. filed a motion to exclude the testimony of Jane Bambauer.

    Law And Legal Expert Witness

    Jane Bambauer is a part-time faculty member at University of Arizona Law. Bambauer teaches and studies the fundamental problems of well-intended technology policies. Bambauer’s research assesses the social costs and benefits of Big Data, and how new information technologies affect free speech, privacy, and competitive markets. She also serves as the co-deputy director of the Center for Quantum Networks, a multi-institutional engineering research center funded by the National Science Foundation, where she facilitates research on economic and regulatory policy for emerging markets in quantum technologies.

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

    Discussion by the Court

    Professor Bambauer’s proposed testimony sought to apply the law to the evidence in a way that invaded both the province of the Court and the jury. While Professor Bambauer is eminently qualified, her expert report reads like a motion for summary judgment or the answer to a law school exam (though not a challenging one in Professor Bambauer’s estimation).

    Professor Bambauer “cites to and discusses the analysis and holdings of case law, and then [s]he applies this legal authority to selected facts and evidence to reach legal conclusions. [Her] expert opinions are nothing more than legal analysis aimed at instructing on the law, how the facts and evidence should be applied to the law, and how the case should ultimately be decided.” The Court believed that allowing Professor Bambauer to testify in this manner would usurp the Court’s role in instructing the jury and would improperly dictate to the jury the conclusion it should reach.

    Held

    The Court granted Defendants’ motion to exclude the testimony of Plaintiffs’ proposed expert Jane Bambauer.

    Key Takeaway:

    The line between a permissible opinion on an ultimate issue and an impermissible legal conclusion is not always easy to discern. However, it is generally accepted that “an expert may not state legal conclusions drawn by applying the law to the facts.

    Case Details:

    Case Caption: Frazier Et Al V. Eagle Air Med Corporation Et Al
    Docket Number: 2:22cv300
    Court: United States District Court, Utah
    Order Date: August 27, 2024
  • Demography Expert Witness Allowed to Analyse Various Maps At Issue

    Demography Expert Witness Allowed to Analyse Various Maps At Issue

    This is a vote dilution case where Plaintiffs challenge the configuration of Mississippi’s State Supreme Court districts, which, despite population changes and the passage of four Censuses, have gone unchanged since 1987. The result of this districting scheme is an unequal playing field for Black voters, such that Mississippi’s nine-member Supreme Court has never had more than a single Black Justice at a time, despite the State’s voting-age population being approximately 36% Black.

    The Plaintiffs filed a motion to partially exclude, wherein they requested that the Court exclude certain portions of the proposed testimony of David Swanson, one of the Defendants’ experts. More particularly, the Plaintiffs requested that Swanson be precluded from testifying regarding electoral map drawing and ecological inference analysis.

    Demography Expert Witness

    David A. Swanson is: (1) Edward A. Dickson Emeritus Professor of Sociology, University of California Riverside; (2) Research Associate, Population Research Center, Portland State University; (3) Faculty Affiliate, Center for Studies in Demography and Ecology, University of Washington; and (4) Research Fellow, Social Science Research Center, Mississippi State University. Swanson served as a member of the U. S. Census Bureau’s Scientific Advisory Committee for six years (2004-10) and chaired the committee for two (2009-2010).

    His B.Sc. is from Western Washington State College (now Western Washington University), and his Ph.D. and M.A. are from the University of Hawai’i. He also holds a Graduate Diploma in Social Sciences from the University of Stockholm.

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

    Discussion by the Court

    Swanson Is An Expert In Understanding Maps

    The Plaintiffs have retained William Cooper as an expert. Cooper has prepared a report that contains four proposed new redistricting plans (two illustrative plans and two “least change” plans). According to Cooper, the proposed plans would create a majority-BVAP District. Swanson, who the Defendants retained as an expert in demography, prepared two reports—the first of which expends considerable effort and time addressing the illustrative plans contained in Cooper’s report.

    The Plaintiffs argued that Swanson has no experience drawing electoral
    maps, and no specialized knowledge with respect to electoral maps. The Court agreed with the Defendants’ position that Swanson “has never claimed to be an expert in drawing maps. He is, however, an expert in understanding maps. His demographic analysis of the various maps potentially at issue in this case is accurate.”

    The Court held that Swanson’s testimony should be limited to his opinions as to the maps that Cooper has drawn and his opinions pertaining to them.

    In reaching this conclusion, the Court is cognizant that the Plaintiffs have pointed to certain qualifications that Swanson lacks. Those issues appear to be ripe questions for cross-examination.

    Swanson attacked Burch’s analysis regarding the State of Mississippi as a whole

    The Plaintiffs’ second point of contention pertains to ecological inference analysis. The Plaintiffs have designated Dr. Traci Burch as an expert. Although her report and rebuttal report address multiple issues related to political behavior, barriers to voting, and political participation, of particular importance here is her utilization of a method referred to as King’s Ecological Inference analysis (“King’s EI”) in estimating voter turnout by race.

    Swanson’s surrebuttal report addressed Burch’s analysis and pointed to what he believed were flaws in that analysis. For instance, he stated that “[i]n constructing her Ecological Inference (EI) model of existing District 1, Burch erroneously included Adams County (a county in existing District 2) and erroneously excluded Bolivar County (a county in existing District 1).” Swanson’s surrebuttal report also stated that Burch’s findings in regard to King’s EI did not change his “opinion that Black Mississippians are able to participate effectively in the political process. As I showed in my initial report, Blacks voted at higher rates than Whites in District 1.” Swanson also attacked Burch’s analysis regarding the State of Mississippi as a whole because she “express[ed] an opinion about White voters relative to non-white voters not an opinion about White voters relative to Black voters.”

    The Plaintiffs contended that Swanson had no experience using the King’s EI Technique relied on by Burch and added that he is admittedly not an expert in voting behavior to which Defendants replied that Swanson has not attacked the mechanics of Burch’s King’s EI analysis but, instead, his testimony will be that Burch’s “answers are not helpful because she is asking the wrong questions.”

    The Court noted that the distinction between the proposed testimony and the underlying mechanics of King’s EI is critical but refrained from altogether precluding Swanson from testifying on this topic.

    Held

    The Court denied the Plaintiffs’ motion to partially exclude the proposed testimony of Defendants’ expert, David Swanson.

    Key Takeaway:

    • Although Swanson lacked the required expertise in electoral mapdrawing and voting behavior, the Court did not exclude his demographic analysis of the various maps potentially at issue in this case.
    • The Court did not fully preclude Swanson from identifying what he believed were flaws in Burch’s analysis.

    Case Details:

    Case Caption: White Et Al V. State Board Of Election Commissioners Et Al
    Docket Number: 4:22cv62
    Court: United States District Court, Mississippi Northern
    Order Date: July 23, 2024
  • Appliances Expert Witness’ Testimony Fails to Establish the Manufacturing Defect Claim

    Appliances Expert Witness’ Testimony Fails to Establish the Manufacturing Defect Claim

    Roger and Reuki Schutt (the “Schutts”) are the owners of a house located at Canton, Massachusetts. On April 24, 2019, the house sustained water damage resulting in the payment of insurance benefits by Safety to the Schutts. The water damage was determined to have originated from a leak in a water filter system manufactured and sold by EcoWater under the tradename Northstar.

    On October 23, 2019, the filter system was examined at a joint inspection by experts for both EcoWater and Safety. The sump was observed to have a “throughwall crack extending the entire length of the housing,” as well as “additional cracks.” EcoWater did not use annealing in the production process for its clear sumps. Post-mold annealing is the process of cooling a mold-injected polymer after manufacture.

    On April 4, 2022, Plaintiff Safety Insurance Company (“Safety”) filed suit in Massachusetts Superior Court against Defendant EcoWater Systems, LLC (“EcoWater”), asserting its right of subrogation arising from water damage to the property of Roger and Reuki Schutt. 

     Safety disclosed two experts in support of its case: (1) “appliance failure inspector” expert Thomas Zarek and (2) materials science expert Timothy Kenney. 

    Zarek opined that the product failed prematurely at the loss location and caused the water damage while Kenney concluded that it was common practice to post-mold anneal these thick wall parts to reduce these residual stresses and improve the performance of the part.

    EcoWater filed motions in limine to exclude the opinions and testimony of Thomas Zarek and Timothy Kenney under Rule 702.

    Appliances Expert Witness

    Thomas Zarek has been employed as an appliance failure inspector since 1997. Regarding his areas of expertise, Zarek holds himself out as a warnings expert, a certified fire and explosion investigator, a certified vehicle fire investigator, and a licensed oil heating inspector and installer. Also, he has taken “a number of courses on appliance failure analysis and on HVAC systems installation,” covering a variety of appliances and materials, including polymers and metals.

    Discover more cases with Thomas Zarek as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Materials Science Expert Witness

    Timothy Kenney’s qualifications and experience include a degree in geology, undergraduate engineering courses in materials science, graduate courses in metallurgy, ceramics, and selection of steels, and various publications. Besides, he serves as the Laboratory Director of New Hampshire Materials Laboratory.

    NHML provides consulting and technical services in chemical, materials, mechanical design, and industrial processing.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Timothy Kenney’s expert testimony. 

    Discussion by the Court

    Thomas Zarek

    To begin with, Safety’s complaint claimed negligence and breach of warranty based solely on defective manufacture of the filter system. Therefore, the Court held that Zarek’s opinions as they relate to other theories of negligence, such as failure to reasonably warn or defective design, are irrelevant since any expert testimony must therefore be limited to establishing the manufacturing defect claim.

    Zarek testified that his conclusions regarding the filter system’s allegedly premature failure are based, at least in part, on his review of EcoWater’s Test ID 4499, which tested canisters similar to the subject sump through a cycle test and hydrostatic test. Yet, the Court found that Zarek himself admitted that he has never performed a cycle test himself for any kind of product and that he does not know what cycle testing is intended to evaluate. As for the hydrostatic testing, Zarek likewise testified that he has never conducted a hydrostatic test on a polymer product or on the styrene acrylonitrile (“SAN”) material used in the subject product, and that the purpose of a hydrostatic test is not to test to failure.

    The Court held that Zarek’s lack of relevant experience and knowledge pertaining to the claims alleged makes clear that he is not qualified to offer expert testimony here.

    Second, the Court held that Zarek’s opinions reflected little to no expert analysis or review done by Zarek. Several of his proffered opinions merely repeated Kenney’s conclusions, without adding anything more. He stated that he personally did no analysis of the data from the testing performed by Kenney.

    Timothy Kenney

    In opining that post-mold annealing is a “general industry practice,” Kenney exclusively relied on the ASM International Volume 2 of the Engineered Materials Handbook. The Court held that Kenney himself undermined the relevance of this guidance where he testified that there is a difference between thick-section and heavy wall parts, that the subject sump is a thick-section part, and that the ASM handbook only recommends post-mold annealing for heavy-wall parts and not thick-section parts.

    Also, he conceded that he did not conduct any testing to evaluate the effects of post-mold annealing on the product and whether such annealing would have alleviated residual stress, nor has he seen any studies or test reports to that effect.

    Moreover, EcoWater also filed a motion for summary judgment seeking to dismiss the case entirely. The Court held that where Safety has no expert support for its claims—which, again, arise exclusively from allegations of negligent manufacture—Safety’s claims cannot survive summary judgment.

    Held

    To sum it up, the Court granted EcoWater’s motions in limine to exclude Plaintiff’s experts, Thomas Zarek and Timothy Kenney as well as his motion for summary judgment.

    Key Takeaway:

    In conclusion, the Court held that many of Zarek’s opinions reflected little to no expert analysis or review done by Zarek. While Zarek’s opinions were irrelevant to Safety’s claims regarding negligent manufacture of the filter system, Kenney had no basis to opine as to whether post-mold annealing would have prevented the subject product from failing here, after fourteen years of use.

    Case Details:

    Case Caption: Safety Insurance Company Et Al V. Ecowater Systems, Llc
    Docket Number: 1:22cv10887
    Court: United States District Court, Massachusetts
    Order Date: May 17, 2024
  • Washington Court Rules against Admitting AI-Enhanced Video as Evidence

    Washington Court Rules against Admitting AI-Enhanced Video as Evidence

    A Washington state superior court judge recently rejected the admission of video exhibits “enhanced by artificial intelligence” as evidence in a triple murder case.

    To begin with, the state of Washington charged Defendant Joshua Puloka with three counts of murder stemming from a 2021 shooting. The shooting was captured on a bystander’s smartphone and the unaltered 10-second-long source video of the shooting had been entered into evidence.

    The defense, however, also sought to admit an AI-enhanced version of the video which is when the Court heard testimony from defense witness Brian Racherbaeumer and State’s witness Grant Fredericks regarding proposed defense video exhibits enhanced by artificial intelligence.

    Washington Court Rules against Admitting AI-Enhanced Video as Evidence

    Video Expert Witnesses

    Brian Racherbaeumer is a self-identified videographer and filmmaker who started working with video in 1993. He was very candid and open about the fact that he is not – and has not claimed to be – a forensic video technician and has not been forensically trained.

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

    Grant Fredericks is a contract instructor of video sciences at the FBI National Academy and is one of the most experienced video experts in North America. Moreover, Grant is a Certified Forensic Video Analyst, who has testified as an expert witness over 150 times in courts at all levels. He is recognized as a leading instructor in the science of Photographic/Video Comparison, Reverse Projection and Vehicle Speed Analysis.

    Discover more cases with Grant Fredericks as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    Racherbaeumer contended that the source video was low resolution, had substantial motion blur, and contained fuzzy images with “blocky” edge patterns. To fix these problems, Racherbaeumer stated that he had added clarity to the source video though the use of an AI-video editing tool in the Topaz Labs AI program before processing the video using an Adobe program. Racherbaeumer stated that the Topaz Labs AI program used technology that “intelligently scaled up the video to increase resolution,” as well as added sharpness, definition, and smoother edges to objects in the video.

    However, the state challenged the proffered AI-enhanced video, asserting that it failed to meet the admissibility standard set forth in Frye v. United States – a standard requiring that evidence using novel scientific theories or principles must have achieved general acceptance in the relevant scientific community. According to Fredericks, the accepted forensic analysis of the video was impossible because of the AI tools used by the defense. Fredericks provided a litany of issues with the AI-enhanced video:

    • the video added 16 times the number of pixels as existed in the original video, using an algorithm and enhancement method unknown and unreviewed by any forensic video expert,
    • AI process removed information that was in the original images and it added information that was not in the original images,
    • The proffered AI-enhanced video removed artifacts on individual images, and altered shapes and colors in the video. It removed the opportunity to forensically analyze which frames in the video utilized reference, predictive, and bi-directional images.

    Also, Fredericks testified that the Scientific Working Group on Digital Evidence, whose members represented state, local, and federal law enforcement agencies engaged in forensic video examinations, had issued warnings regarding the use of AI-enhancement tools in the courtroom instead of approving the use of such AI-enhancement tools.

    Held

    The Court held that the Topaz Video AI enhancement tools, which use machine-learning algorithms, have not been peer-reviewed by the forensic video analysis community, are not reproducible by that community, and are not accepted generally in that community. Racherbaeumer himself was unable to say whether the Topaz Video AI he used, which had been commercially available for about three years, is currently utilized by the forensic video analysis community.

    Moreover, the Court found that AI-enhanced video failed to satisfy Washington Rule of Evidence (ER) 702, under which evidence may only be admissible if it is reliable and will assist the trier of fact, as well as ER 403, which states that evidence is not admissible if its probative value substantially outweighs the danger of unfair prejudice.

    Key Takeaway:

    In conclusion, the Court held that the Defendant had the burden to show that the method was accepted in the relevant community because using AI tools to enhance video introduced in a criminal trial was a novel technique. The Court, as a result, held that the defense had failed to meet its burden after it found that the relevant scientific community was the “forensic video analysis community.” 

    Case Details:

    Case Caption: State of Washington v. Puloka
    Docket Number: 21-1-04851-2
    Court Name: Superior Court of Wasington for King County
    Order Date: March 29, 2024