Expert Witness Profiler

Tag: Bias

  • Law And Legal Expert Not Allowed to Opine on Implicit Bias

    Law And Legal Expert Not Allowed to Opine on Implicit Bias

    Plaintiff Amanda Howland brought employment discrimination claims against her former business and romantic partner Christian Kjaer and the company they operated, Ellevet Sciences Inc.

    Defendants Ellevet Sciences Inc. and Kjaer filed motions in limine seeking to exclude the testimony of Amanda Levine, Esq., PI and Charles H. Heller, Ph.D.

    Law And Legal Expert Witness

    Amanda Levine, Esq., PI is a graduate of Middlebury College and of Boston College Law School. She is licensed to practice law by the Commonwealth of Massachusetts and is licensed as a Professional Investigator by the State of Maine.

    Levine regularly conducts neutral and comprehensive workplace investigations involving allegations of harassment, discrimination and serious employment misconduct. She also serves as an outside and neutral investigator for higher education institutions in Title IX matters.

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

    Psychology Expert Witness

    Charles Harris Heller, Ph.D is a licensed psychologist who specializes in the effects of intimate partner violence. He earned his Ph.D. from the University of Wisconsin-Madison in 1979. His work experience includes: working as a clinical and forensic psychologist with inmates of various correctional facilities; working as a staff forensic psychologist at Rutgers, The State University of New Jersey, Department of Biomedical and Health Services; and performing forensic and clinical duties at East Jersey State Prison (EJSP) in Rahway, New Jersey.

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

    Discussion by the Court

    A. Testimony of Amanda Levine, Esq., PI

    Plaintiff designated Amanda Levine, an attorney and a professional investigator, to testify regarding the workplace conduct that Plaintiff experienced while working at Defendant ElleVet. Defendants contended that Levine should not be permitted to testify regarding: (1) implicit bias, (2) that women are more likely to experience harassment at work, (3) that Plaintiff was the victim of implicit bias, (4) that certain of Defendant Kjaer’s actions were discriminatory, and (5) the assessment of Defendant Kjaer’s credibility.

    There is evidently no dispute that Levine, as an attorney and professional investigator with experience in investigating complaints of employment discrimination, had the requisite experience to testify regarding the need to conduct discrimination investigations, as well as the adequacy and substance of such investigations.

    Analysis

    It should be noted that the Defendants’ concerns regarding Levine’s qualifications and specialized knowledge to testify more extensively about unconscious bias and how it might affect the Plaintiff’s claims are valid. In particular, Levine evidently lacked specialized training, experience, or research in sociology, psychology, or neuroscience that would permit her either to establish the existence of novel or contested unconscious stereotypes or biases—that is, biases not yet well established in the legal context or still scientifically disputed—or to opine on the cognitive processes that might explain such biases.

    Furthermore, even if Levine had the requisite qualifications and expertise to offer additional testimony on unconscious or implicit bias, the Court questioned whether such testimony would be helpful to the jury and whether its probative value would be substantially outweighed by the risk of juror confusion or improper reliance.

    Similarly, Levine’s proffered opinion that women are more likely to experience harassment at work, which was apparently informed by statistical evidence from studies she had read, presented similar and additional concerns. As noted above, Levine evidently had not conducted any of those studies, nor did she have specialized training or research experience in any of the relevant fields of research.

    Likewise, Levine’s opinions that the Plaintiff was the victim of implicit bias and that some of Defendant Kjaer’s acts and words were discriminatory presented the same concern. For similar reasons, Levine’s testimony regarding Defendant Kjaer’s credibility, or the factors she considered when assessing credibility, had to be excluded because it would not have been particularly helpful to the jury and would have risked misleading the jury and interfering with the Court’s instructions regarding credibility.

    B. Testimony of Charles Heller, Ph.D

    Defendants asserted that Heller’s proposed testimony involving the words “domestic violence,” “intimate partner violence,” and “domestic violence assessment,” should be excluded under Federal Rules of Evidence 402 and 403 as irrelevant and unfairly prejudicial because in the mind of a layperson, the term “violence” implies physical abuse, which was not present here.

    Plaintiff contended, however, that Heller should be permitted to use the term “violence” because, as an expert in the field, Heller considered the emotional abuse alleged here to be a form of domestic violence.

    Heller’s view is supported by others, including the American Psychiatric Association, which defines domestic violence or intimate partner violence as not only physical force, sexual acts without consent, and stalking, but also “psychological aggression,” meaning “verbal and non-verbal behaviors intended to harm emotionally or exert control.”

    While Heller’s possible reference to domestic violence and related terms generates concerns of unfair prejudice under Rule 403, at this stage, the Court cannot determine that, in all instances, the prejudice to Defendant Kjaer from the use of such terms substantially outweighs the probative value. Because the Court cannot assess all potential uses of the term outside the context of the trial, the Court defers ruling on the issue and will decide the issue at trial.

    Defendants also argued that Heller should not be permitted to opine as to the way Plaintiff felt as a result of Defendants’ conduct and whether her beliefs were reasonable, including whether Plaintiff reasonably believed that she was in imminent danger. When diagnosing a condition, a treatment provider often accepts the client’s representations as accurate in the absence of any objective evidence to the contrary. As to Heller’s assessment of Plaintiff’s condition, therefore, the Court discerns no basis for exclusion.

    Held

    • The Court granted in part the motion to exclude the testimony of Amanda Levine.
    • The Court granted in part, denied in part, and deferred in part the motion to exclude the testimony of Charles Heller.

    Key Takeaway

    The witness’ familiarity with certain statistics or studies from having read them in connection with discrimination investigations is not enough.

    Even if Levine had sufficient experience to opine based on the cases she has personally investigated, the opinion would have little, if any, relevance to the individualized assessment the jury must undertake. Such an opinion resembles a propensity argument that courts generally prohibit (i.e., because women are more likely to experience discrimination at work, Plaintiff is more likely to have experienced discrimination in this case).

    Case Details:

    Case Caption: Howland V. Ellevet Sciences Inc.
    Docket Number: 2:24cv442
    Court Name: United States District Court, Maine
    Order Date: May 22, 2026
  • Marketing Expert’s Testimony Excluded Due to His Inherent Bias

    Marketing Expert’s Testimony Excluded Due to His Inherent Bias

    Plaintiff Grasshopper Gardens, Inc., a lawncare and landscaping services provider, accused PMA Mechanical LLC, a heating, ventilation, and air conditioning (“HVAC”) service provider, of trademark infringement, unfair competition, and false designation of origin.

    Plaintiff retained Dr. Eli Seggev to conduct a survey on the likelihood of confusion between the marks at issue in this case (“Seggev Survey” or the “Survey”) and to provide an expert report and testimony. Defendant sought to preclude use of this evidence under Rules 702 and 403 of the Federal Rules of Evidence.

    Marketing Expert Witness

    Dr. Eli Seggev holds an MBA from the University of Michigan and a PhD in Marketing and Quantitative Methods from the School of Management at Syracuse University. In addition to teaching in graduate business programs at various universities Seggev also founded and managed two marketing research companies, both of which had been acquired by UK-based corporations.

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

    Discussion by the Court

    1. Structure of the Seggev Survey

    The Seggev Survey used a format referred to as an original “Squirt” survey. Specifically, the Survey is comprised of two parts: a screener portion and the main questionnaire. Moreover, the Survey followed a “Test v. Control” design, “in which the impact of an allegedly infringing stimulus (Test Group) is compared to the impact of a similar stimulus that is free of the allegedly infringing elements (Control Group).”

    The “Test” design compared a portion of Plaintiff’s website page without its URL to a portion of Defendant’s website page without its URL, while the “Control” design compared the portion of Plaintiff’s website page to a portion of a completely random website for an HVAC contractor called “Best Contractors” with the URL “besthvac.contractors” included.

    Importantly, the images of both Plaintiff’s and Defendant’s portions of websites included the word “grasshopper” while the “Best Contractors” website page did not include the word “grasshopper” or any other similarities to the other website pages. Finally, Seggev testified that he intentionally designed the Survey this way to lead participants towards his own conclusion that the marks at issue “were identical.”

    2. Operation of the Seggev Survey

    The Survey participants were either shown the “Test” group or the “Control” group, not both. Specifically, Participants randomly selected for the “Test” group were first asked to review “a webpage” and then shown images of both the portion of Plaintiff’s webpage without its URL and the portion of Defendant’s webpage without its URL.

    Notably, for this “Test” group, the Survey does not include a question separating the portions of Plaintiff’s website and Defendant’s website, creating the impression that they came from the same website because each of the URLs were removed and the question just prior refers to just “a website.” Alternatively, participants selected for the “Control” group were presumably shown the same portion of Plaintiff’s website without the URL and then asked to review the top portion of another website for Best Contractors with the URL “besthvac.contractors.”

    After being shown these images in the “Test” or “Control” groups, participants were then asked whether they thought the websites represented “the same company,” “different companies,” or “don’t know/no opinion.” Participants in both groups were then asked whether they believe that “the two companies are affiliated, connected, or associated with one another or have no opinion.”

    3. Results of the Seggev Survey

    According to the Seggev Report, participants were classified as confused if they considered the two images to be the “same company” or “companies that are affiliated, connected or associated with each other.” Based on the results of the Survey, Seggev claimed that 68.3% of participants found a likelihood of confusion for the “Test” group. And, the results of the “Control” group showed that 28.1% of participants believed that Plaintiff and Best Contractors were also either the same company or “affiliated, connected or associated with each other.”

    Seggev did not vet the results based on household income level or whether the Survey participants were appropriate prospective consumers of Defendant’s services. Additionally, Seggev did not focus on the marketplace in which both parties currently operate; instead, he conducted a nationwide survey.

    4. Application

    Seggev utilized the original formulation of the Squirt survey, showing participants either (1) portions of images of Plaintiff’s website and Defendant’s website in the Test cell, or (2) portions of images of Plaintiff’s website and “the webpage of a heating and cooling business that did not use the Grasshopper” in the Control group. As illustrated in Seggev’s report, the Survey showed participants both images consecutively. The Court agreed with Defendant that, in showing only two images consecutively, without any other similar trademarks/companies, in artificially close proximately for two non-competing companies, the Survey intentionally signals to participants that there is a connection between the two and thereby artificially inflates the Survey’s estimates of likelihood of confusion.

    Courts have found that the Squirt format is intended to replicate market conditions under which the relevant services have marketplace proximity and is therefore most appropriate where the marks are sold to overlapping customers or through overlapping channels of trade, such that consumers would typically encounter one soon after the other. Here, there is no competitive proximity between the parties. During prosecution, Plaintiff’s services were described as “strictly for landscaping” and “broadly categorized as ‘lawn care.’” Defendant, however, provided HVAC services and its business does not overlap with Plaintiff’s in any appreciable manner.

    Moreover, there is limited proximity of the marks in the marketplace. Although both companies operate websites that present the services they offer, that is where the proximity ends.

    While these flaws alone are likely sufficient to justify the exclusion of Seggev’s report and the Survey, Seggev’s admitted bias in administering the Survey convinced the Court that exclusion is the only appropriate course. As noted above, Seggev testified that he intentionally designed the Survey the way he did to lead participants towards his own conclusion that the marks at issue “were identical.”

    Held

    The Court granted the  Defendant’s motion to exclude the expert testimony of Dr. Eli Seggev. 

    Since the Plaintiff failed to raise a genuine issue of material fact with respect to likelihood of confusion and the Defendant is entitled to summary judgment on Plaintiff’s claims brought under the Lanham Act, the final judgment was entered in the Defendant’s favor.

    Key Takeaway:

    Generally, when a party challenges a survey for bias, they are forced to use circumstantial evidence, such as leading questions or the use of images that are clearly intended to direct survey participants to a desired result. While it is generally understood that expert witnesses retained by the respective parties are going to provide their opinion testimony in a manner favorable to the party that retained that expert, such testimony is generally provided under the guise of being unbiased. By Seggev’s own admission, the Survey was injected with his own bias and results oriented, making the Survey inherently unreliable.

    Case Details:

    Case Caption: Grasshopper Gardens, Inc. V. PMA Mechanical LLC
    Docket Number: 1:23cv1257
    Court Name: United States District Court, New York Northern
    Order Date: September 23, 2025
  • Insurance Expert Permitted to Testify Despite Lacking Specific Certifications

    Insurance Expert Permitted to Testify Despite Lacking Specific Certifications

    Plaintiffs Diane Watts, Anthony Watts, and Adam Pizzitola (collectively, “Plaintiffs”) purchased car insurance policies from Defendants Liberty Mutual Personal Insurance Company.

    In relevant part, the policies contained an Optional Transportation Expenses Coverage endorsement which provided that, in the event of an accident, LMPIC would pay the expense of a rental vehicle while repairs were performed on the damaged vehicle. If the vehicle was declared a total loss, then LMPIC would pay for a rental vehicle for the “period of time reasonably required” to replace the total loss vehicle, up to a maximum of 30 days, or $900.

    Each Plaintiff alleged that after a car accident in which they received access to and payment for a rental vehicle, Liberty Mutual Personal Insurance Company and Liberty Mutual Insurance Company prematurely terminated the rental car coverage, despite the contractual obligation to first determine the amount of time a policyholder reasonably needs to replace their totaled vehicle.

    On May 16, 2025, LMIC filed a motion to strike and exclude the opinions of Plaintiffs’ expert Mr. Jay Angoff pursuant to Federal Rule of Civil Procedure 56(c)(2) and Rule of Evidence 702.

    Insurance Expert Witness

    Jay Angoff is an attorney with a long career working in the insurance industry. At various times over the past 40 years, he has served as the Insurance Commissioner for the State of Missouri, as the Deputy Insurance Commissioner for the State of New Jersey, as the Director of the U.S. Health Care Financing Administration’s Private Health Insurance Group, and as the Director of the HHS Office of Consumer Information and Insurance Oversight.

    Want to know more about the challenges Jay Angoff has faced? Get the full details with our Challenge Study report

    Discussion by the Court

    Defendants contended that the Court should strike the Angoff Report under Rule 702 and Daubert because Angoff is not qualified to render the opinions in his report and because Angoff’s opinions are not reliable.

    Qualifications

    Defendants argued that Angoff is not qualified to render these opinions because he “lacks any education, training, or experience in the field of accounting or financial advisory, or reinsurance” and has no relevant professional certifications or degrees.

    Though Angoff has not served as an expert specifically on financial statements, given this extensive history upon which he renders his opinions, the Court concluded that he is appropriately qualified in this case. The Defendants’ attacks on Angoff’s lack of qualifications or specific certifications are an appropriate line of inquiry for cross-examination, but such bases do not disqualify him from serving as an expert in this case.

    Reliability

    Sufficiency of the Data

    Defendants argued that Angoff’s opinions related to LMPIC’s reserves are unreliable because they are based on plainly erroneous assumptions and cherry-picked facts.

    Angoff’s opinions are predominantly based off LMPIC’s and LMIC’s 2023 accounting statements, from which Angoff has drawn various conclusions based on his experience in the insurance industry reviewing and analyzing financial statements.

    There is no dispute that the accounting statements and the other record evidence considered by Angoff are a reliable basis on which he could form an opinion. While Defendants contended that Angoff’s opinions are based on mistaken assumptions that account only for net numbers and ignore gross numbers, such a challenge is not an appropriate basis for exclusion at this junction. While it is entirely possible that Angoff’s reading of the accounting statements is incorrect, the Court cannot draw that conclusion because would it be appropriate for the Court to do so.

    Legal Conclusions

    Defendants also argued that Angoff’s opinions that LMPIC’s regulator would not permit it to pay a $45 million judgment and that LMPIC does not “act independently” of LMIC are conclusions without factual basis. Defendants further characterized this second conclusion as a legal opinion.

    The Court agreed that some statements in the report are inadmissible conclusions of law. Angoff may testify regarding what, in his experience, a regulator would consider in analyzing an insurance company’s availability and source of funds to pay a judgment, but not the conclusion of law as to whether LMPIC’s regulator would permit LMPIC to pay a $45 million judgment. Similarly, Agnoff may testify as to industry practice in structuring and operating insurance companies and the relationship created in the reinsurance context, but not the conclusion of law that LMPIC does not “act independently” of LMIC.

    Bias

    Defendants also attacked Angoff as an unreliable expert due to alleged bias. Specially, Defendants argued that, “until recently, [Angoff] was a Plaintiff’s class action lawyer who sued insurance companies for a living, and is not independent of Plaintiffs’ counsel given his prior relationship with them.”

    However, an expert’s bias goes to the weight or credibility of his testimony. As such, the Court held that Angoff’s potential bias does not necessitate his exclusion.

    Held

    The Court denied the Defendant’s motion to strike and exclude the opinions of Plaintiffs’ expert Jay Angoff.

    Key Takeaway:

    As long as an expert’s scientific testimony rests upon ‘good grounds, based on what is known,’ it should be tested by the adversary process—competing expert testimony and active cross-examination—rather than excluded from jurors’ scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies.

    Angoff’s report is grounded in his experience regarding insurance companies’ financial statements and regulatory requirements. The report and record together contain sufficient explanation of Angoff’s methodological choices and reasoning to overcome a Daubert challenge in this posture.

    Case Details:

    Case Caption: Watts Et Al V. Liberty Mutual Personal Insurance Company Et Al
    Docket Number: 1:23cv12845
    Court Name: United States District Court, Massachusetts
    Order Date: July 29, 2025