Manichanh Sitivong sued the United States under the Federal Tort Claims Act (FTCA) for injuries she sustained when her car collided with a car driven by a Federal Bureau of Investigation agent.
Sitivong sought to exclude the government’s biomechanical engineering expert, Keith Stolworthy, Ph.D, P.E. Sitivong argued that Stolworthy’s report (1) incorrectly assumed that Sitivong experienced only frontal forces and not lateral or rotational forces, (2) was insufficiently based on photographs and repair bills for Sitivong’s vehicle, (3) improperly opined on the medical causes of Sitivong’s injuries, (4) relied on volunteer crash safety tests that are disconnected from the conditions of Sitivong’s collision, and (5) relied on a misleading daily activities chart.
Mechanical Engineering Expert Witness
Dean Keith Stolworthy, Ph.D, P.E. understands the mechanical performance of biological tissue (e.g., how the body moves and breaks) and applies this in the analysis of injury-causing events and the design of biomechanical devices. He has served as an expert witness on hundreds of cases involving vehicle accidents (including front, rear, and side-collisions; roll-overs, occupant ejections; and motorcycle crashes); slips, trips, and falls; projectiles and falling objects; workplace accidents; medical devices and consumer product failures; and other injury-causing events.
Stolworthy received bachelor’s, master’s, and doctorate degrees in Mechanical Engineering from Brigham Young University and was a postdoctoral researcher at Vanderbilt University.
Sitivong contended that Stolworthy’s report “never explains” why he concluded that her vehicle “experienced virtually no left-right or clockwise rotation during the impact.”
Stolworthy performed a crush-based analysis to determine the vehicle dynamics of the collision, specifically the “rearward-directed change in speed (delta-V)” of Sitivong’s vehicle. After estimating the size of the damage to Sitivong’s vehicle, he “appl[ied] well-accepted formulas in the field of vehicle accident reconstruction” to determine that the delta-V of Sitivong’s vehicle was “less than 7.5 mph.”
Stolworthy did not state what formulas he applied, how he applied them, or what the potential error rate was for this calculation. He claimed the formulas are “well-accepted” in the field of vehicle accident reconstruction, but he did not cite tests, studies, or peer-reviewed publications. As it stands, Stolworthy’s delta-V calculation using the crush analysis is a black box that does not allow for determination of whether it falls within the range of accepted standards governing how scientists reach their conclusions.
Stolworthy used other methods to calculate delta-V, including National Automotive Sampling System-Crashworthiness Data System, Crash Investigation Sampling System, and Insurance Institute for Highway Safety analyses. However, these analyses provided only an upper limit or approximation of delta-V. The only other method Stolworthy used to calculate a specific delta-V value is a kinematics analysis.
Stolworthy relied on his delta-V calculation throughout the rest of his report. Because the Court cannot determine how Stolworthy calculated delta-V, his report is unreliable. However, the problems appear curable, so the Court gave the government an opportunity to supplement Stolworthy’s report if he can provide the basis for his delta-V calculation.
Held
The Court granted in part Plaintiff’s motion to exclude the testimony of Keith Stolworthy, Ph.D
Key Takeaway
The Rule 702 factors are not exhaustive, vary in applicability depending on the case, and are meant to determine whether the expert’s analysis “falls within the range of accepted standards governing how scientists conduct their research and reach their conclusions.”
This case arises from the shooting death of John Fuller, (the “Decedent”), and wounding of DaJohn Foster at the Winbranch Apartment Complex (the “Property”). Plaintiffs assert a premises liability claim based on Defendants’ alleged failure to take adequate steps to protect them from violent crimes committed by third parties not resident at the Property. Defendant Winbranch Complex, LLC owned the Property and Defendant My Management, LLC served as the third-party fee manager for the Property.
Plaintiffs retained Jennifer C. St. Clair, an economist, to provide expert testimony on the pecuniary and/or monetary value of the Decedent’s life, and Thomas R. Stutler, a “security specialist.”
Defendants, Winbranch Complex, LLC, and My Management, LLC d/b/a Apartments Near Me (together, the “Defendants”) filed a Daubert motion to exclude Plaintiff’s experts.
Security Expert Witness
Thomas R. Stutler, CPP, JD served as leader for security at two corporations, spanning approximately ten years.
Jennifer Coats St. Clair, MA is a self-employed Labor Economist with over nine years of experience calculating litigation damages, specifically focusing on the economic, financial, and business issues arising in legal disputes. She earned a Master of Arts in Economics from the University of Memphis in 2016, where she also achieved All But Dissertation (“ABD”) status after passing doctoral comprehensive examinations.
She has taught Economics at the University of Memphis and Christian Brothers University. Since 2017, St. Clair has served as a consulting economist or econometrician on over 130 federal and state cases, with a substantial portion of her practice involving the calculation of economic losses in personal tort claims.
After summarizing a version of the events underlying the lawsuit, Stutler’s report announces various legal conclusions, including that “the victims were legally on the property” and that “as tenants and guests on the property the Defendants owed a duty to the victims to provide a reasonable safe environment.”
He then summarized crime statistics for the surrounding area—apparently in support of his assertion of foreseeability—before listing various failures that, if they occurred, “would be a major security failure.”
The Court held that Stutler’s report did not satisfy Rule 702 and therefore must be excluded.
Finally, Stutler offered a few opinions that could—depending on the analysis—be the stuff of expert testimony, including: an assessment of Property’s security posture, ten bullet-pointed recommendations for improving that posture; something that looks vaguely like an opinion on breach (although couched in terms of inactions that would be a “serious security failure”); and opinions on causation. The problem is that these opinions are wholly unexplained—they are assertions more than opinions, with no indication that they are the result of a reliable methodology reliably applied.
II. Jennifer C. St. Clair, MA
Plaintiffs retained St. Clair to calculate the present value of the economic losses arising from the shooting death of Decedent.
St. Clair first assumed that Fuller worked for the entire duration of his life. She calculated this to be 18.17 years based on the Markov Process Model of Labor Force Activity. In that scenario, St. Clair found that the value loss would be $830,828. In the second scenario, she assumed that Fuller worked until the Social Security retirement age of 67. The value loss would be $896,139 in that case.
It should be noted that Defendants did not point to any unique facts or specific medical history that might render any opinion concerning Decedent’s future earnings or household services wildly misleading if not accounted for.
Next, Defendants argued that St. Clair failed to accurately calculate income lost because she relied on national average wages as opposed to Fuller’s actual income. Defendants also noted that they have never received income information from Plaintiffs. St. Clair relied on the American Community Survey to determine income specifically for barbers. Defendants also argued that St. Clair committed the same errors in her household services calculation, pointing to her failure to consider Fuller’s actual contributions to the household. St. Clair relied on expectancy data from The Dollar Value of a Day: 2020 Dollar Valuation.
The Court held that historical earnings and household services are “relevant” to the earnings calculation but not dispositive. St. Clair’s determination that Fuller would have earned more over the course of his working life than the earning capacity that may have been suggested by his salary “is not unreasonable as a matter of law.”
St. Clair’s analysis “involved a degree of speculation, as does all analysis of future damages, but not unrealistic speculation.”
Held
The Court denied Defendants’ motion regarding Jennifer St. Clair’s expert report and granted Defendants’ motion regarding Thomas Stutler’s report.
Key Takeaway
Stutler purports to rest his opinion on his “knowledge, training, skill, and expertise,” but even experts who base their opinion on honed expertise must explain how they applied their methodology in the case at hand to arrive at their opinions. Experts must show their work, and if they do not, their opinions must be excluded. The Court’s gatekeeping function under Daubert requires more than simply taking the expert’s word for their testimony.
Plaintiff, Mark McCown, a locomotive engineer, fell on his buttocks and immediately experienced pain upon his fall and developed a condition called Complex Regional Pain Syndrome (“CRPS”) due to the fall. McCown filed this suit against Defendant pursuant to the Federal Employers’ Liability Act (“FELA”) asserting that his fall and subsequent injury were due, at least in part, to Defendant’s negligence. While the parties did not dispute that a causal relationship existed between the Plaintiff’s fall and his CRPS diagnosis, they did dispute whether any negligent act or omission by Defendant contributed to Plaintiff’s fall.
Plaintiff sought compensatory damages for his injuries and retained Dr. Robert McLeod to calculate his past and future economic losses. McLeod prepared two reports: a Personal Injury Economic Damages Report (“Personal Injury Report”) and a Life Care Plan Economic Report (“Life Care Report”).
McLeod also prepared supplements that assumed Defendant was totally disabled and would have no future income as well as assumed Defendant is only partially disabled and will be able to engage in part-time work in the future.
Defendant did not argue that McLeod is unqualified, nor did they contest the relevancy of his testimony. However, Defendant did assert that McLeod’s testimony should be excluded in its entirety as unreliable.
Economics Expert Witness
Robert Wesley McLeod has been a financial economics consultant for over 40 years. He earned his doctorate degree in finance and economics from the University of Texas in 1977.
In attacking McLeod’s Personal Injury Report, Defendant first argued that the methodology used in calculating Plaintiff’s loss of fringe benefits was flawed.
Defendant also asserted that McLeod relied on anecdotal evidence from a “single-year snapshot of 2024 benefits cost data,” and that relying on “outlier” anecdotal information is improper.
Next, Defendant argued that McLeod’s methodology “lacked internal consistency.” Specifically, Defendant asserted that McLeod averaged multiple years of historic data in assessing Plaintiff’s future tax rate, but used a single, “cherry-picked” year in determining lost fringe benefits.
McLeod explained that benefits are a percentage of earnings, so calculating lost fringe benefits based on that percentage is “a fairly standard approach.” Defendant argued that “a far more reasonable approach is to tie any increase to the projected inflation rate or healthcare-related costs indices, not wage growth.”
McLeod is a well-qualified economist who provided detailed descriptions of his methods and reasoning in his reports, deposition, and declaration. The mere existence of another method of calculation did not make the method used by McLeod unreliable or not generally accepted among economists. As such, the Court is not persuaded by Defendant’s assertions that McLeod’s methodology is unreliable.
b. Life Care Plan Economic Damages Report
As to the portion of McLeod’s report that addressed pretrial expenses, Defendant argued that “the jury is fully capable of independently reviewing medical bills and adding up the medical expenses incurred by Plaintiff without the assistance of an economist.” While this may be true, the Court did not agree with Defendant’s argument that the inclusion of pretrial damages in McLeod’s report risked confusing the issues and misleading the jury so long as the pretrial damages are the sum of medical expenses Plaintiff has actually incurred to this point.
While any testimony that Plaintiff’s pretrial damages is based upon hypothetical pretrial treatment that Plaintiff did not receive will be excluded, even a treatment that was declined pretrial may still be a necessary treatment in the future based on Plaintiff’s changing needs and responses to other treatments. As such, it is permissible for McLeod’s Life Care Plan Report to include the cost for treatments Plaintiff has previously declined in his calculation of post-trial expenses unless it is a treatment that Plaintiff has stated he will not consider in the future.
Held
The Court denied Defendant’s motion to exclude certain calculations from Plaintiff’s economist, Dr. Robert McLeod.
Key Takeaway
The existence of other methodologies that McLeod chose not to apply was fodder for cross-examination, but it did not warrant the exclusion of his testimony.
In this defamation action, Plaintiffs Techtronic Industries Company Limited and Techtronic Industries Factory Outlets, Inc. (“Plaintiffs” or “TTI”) sued Defendant Victor Bonilla (“Defendant” or “Bonilla”) for statements made about TTI and its business practices by Bonilla in two reports he authored and published on his website Jehoshaphat Research in February and June 2023.
Bonilla filed a motion to exclude TTI’s expert Jeffrey W. Kopa, CFA under Fed. R. Evid. 702, arguing that Kopa’s qualifications and opinions failed to meet the standards required by Daubert and the Federal Rules of Evidence.
Valuation Expert Witness
Jeffrey William Kopa, CFA is a partner and managing director at AlixPartners in the Investigations, Disputes and Risk practice. He holds a Bachelor of Business Administration degree with an emphasis on finance and accounting from the University of Michigan and a Master of Business Administration degree and Master of Science degree in Finance from Indiana University School of Business. Kopa has developed an extensive litigation-consulting, financial, valuation, and investing practice over his past 20 years of professional experience.
He has analyzed damages through his litigation-consultant services in a variety of areas including antitrust, audit malpractice, breach of contract, false advertising, intellectual property litigation, purchase price and transaction disputes, shareholder disputes, fraudulent conveyance, and preference actions. Kopa has experience examining damages and lost profits caused by alleged wrongful acts and has been qualified as an expert to present damages opinions and statistical analyses in state, federal, and bankruptcy courts. In addition to performing damages analyses, he has performed accounting investigations, assessed credit worthiness, advised creditors and board members, participated in capital raising efforts and worked to restructure and refinance companies.
In his initial report, Kopa offered the following opinions:
The market for the common stock of TTI was open, developed, and efficient before and around the time of the Jehoshaphat Reports (“JR”) were publicly issued based on the results of standard market efficiency tests.
The share price of TTI’s common stock declined in February 23, 2023 and June 6, 2023, following the First Report and Second Report, respectively, and the negative abnormal return following the First Report’s publication was highly statistically significant.
Defendant profited from trading activity associated with the JR Reports.
TTI incurred approximately US$152 thousand in incremental professional fees to address the JR Reports.
TTI’s incremental compensation plans have a total attributable value to the JR Reports of approximately US$23.6 million.
Defendant challenged Kopa’s second, fourth, and fifth opinions referenced above. Defendant noted that, with respect to the third opinion, Bonilla’s profits are not an item of damages that Plaintiffs may claim, but he did not otherwise challenge Kopa’s analysis or conclusion that Bonilla profited from trading activity associated with the reports.
Qualifications
Bonilla contended that Kopa offered no testimony on the salient issues that would be helpful to the jury, such as identifying which damages resulted from the alleged false and defamatory statements and whether the LTIP executive compensation program was necessary. This argument appeared to go to the last prong of the Daubert analysis and not to Kopa’s qualifications to offer a damages opinion in this case. As courts in this Circuit have noted, “the qualification standard for expert testimony is ‘not stringent’ and ‘so long as the expert is minimally qualified, objections to the level of the expert’s expertise go to credibility and weight, not admissibility.’”
Given Kopa’s education, experience, and credentials, the Court found that Kopa is at least minimally qualified to offer damages opinions in this case.
Methodology
In formulating his opinions, Kopa utilized the methodology of an “event study” to analyze the impact of Bonilla’s reports on TTI’s stock. An event study is a statistical regression analysis that examines the effect of an event—such as the release of information—on a dependent variable, such as a corporation’s stock price. Kopa testified that he combined a quantitative analysis of the change in TTI’s stock with a qualitative loss causation analysis of TTI-focused news.
Bonilla argued that although Kopa purports to conduct an event study to show the connection between the First and Second Reports and the stock drop, he did not use any methodology to determine if the stock drops were due to the alleged false and defamatory statements, as opposed to being due to true statements or opinions in the reports.
As event studies are a “common method” of establishing loss causation, the Court found Kopa’s methodology to be generally accepted in the scientific community and therefore reliable.
Kopa also used the net present value technique, a commonly accepted methodology, to calculate TTI’s damages. Bonilla argued that Kopa’s analysis of the legal and accounting bills did not use an accepted methodology at all; rather, he just added them up. Bonilla complained that Kopa did not analyze whether the legal and accounting work performed was necessary.
For the same reason, he challenged Kopa’s testimony about the executive compensation issue contending Kopa merely asserts a but-for test that is unscientific and unreliable. Whether or not the services were needed does not appear to be an opinion that Kopa is offering.
Net present value analyses are an acceptable and common methodology used by financial experts. Basically, the Court found that Kopa’s causation assumption did not render his damages opinion inadmissible.
Helpfulness to the Jury
TTI contended that Kopa did not simply look at a stock market drop as Bonilla suggests. TTI represented that Kopa’s opinions are formed based upon a statistical causal analysis utilizing an event study. Bonilla’s arguments to the contrary in an effort to exclude the opinions go more to the weight the jury should give the opinions and not to their admissibility. Finally, Bonilla complained that some of the calculations are simple math calculations for which an expert is not needed. However, this is not a basis to exclude the expert.
Held
The Court denied Defendant Bonilla’s Daubert motion with respect to Jeffrey W. Kopa’s damages opinions.
Key Takeaway
Relevant expert testimony logically advances a material aspect of the proposing party’s case and fits the disputed facts.
While performing simple mathematical calculations or conversion of money from Hong Kong to U.S. dollars may not necessarily require expert testimony, to the extent that Kopa is permitted to testify, his performance of these calculations and conversions will be helpful to the jury.
This action arises out of a franchise relationship between the Plaintiffs Glenn Misiph and AASK Services, LLC, (together “Plaintiffs”), and the Franchisor Defendants, 360° Painting, LLC, Premium Service Brands, LLC, and Paul Flick (together “Defendants”).
Plaintiffs alleged that Defendants engaged in fraudulent misrepresentation through marketing materials and Franchise Disclosure Documents (“FDD”).
To support their claims, Plaintiffs retained Elisabeth O. da Silva, a forensic accountant and damages expert, to calculate, among other things, their damages claims.
In her report, Da Silva addressed Plaintiffs’ lost opportunity costs, actual and expected profits, and efforts to mitigate damages. The report also evaluated the accuracy of the financial figures disclosed by 360° Painting in its 2017 FDD.
In response, Defendants engaged Edward J. Herbst, a CPA and CFF with professional experience in both the private sector and federal law enforcement.
Herbst provided a rebuttal to da Silva’s report assessing her premises, methodology and approach, and rationale. His report concluded that da Silva’s analysis relied on inaccurate assumptions and failed to account for the specific financial and operational realities of the franchise.
Plaintiffs Glenn Misiph and AASK Services, LLC, and Defendants 360° Painting, LLC, Premium Service Brands, LLC, and Paul Flick filed cross motions in limine to exclude expert testimony.
Accounting Expert Witnesses
Elisabeth O’Toole da Silva is a certified public accountant (“CPA”) and is certified in financial forensics (“CFF”) with over 25 years of experience in forensic accounting, auditing, and economic damage calculations.
Her professional history includes investigating complex financial disclosures and serving as an expert witness for private litigants and the Securities and Exchange Commission. Da Silva also served as a neutral arbitrator in accounting and contract disputes.
Edward J. Herbst previously served as a managing director in the forensics practice of a private accounting firm and held a senior executive service position within the Federal Bureau of Investigation. His experience includes calculating economic losses in financial crime investigations and providing testimony in federal court regarding fraud and money laundering schemes.
Defendants sought to exclude all of da Silva’s testimony due to: (1) lack of “fit” between da Silva’s calculations and Plaintiffs’ claimed damages; (2) unreliable methodology; and (3) improper legal or narrative conclusions.
1. The “Fit” Of Damages
Defendants argued that da Silva’s “but-for” damages testimony did not “fit” the case because Plaintiffs sought rescission damages, and da Silva’s report calculated expectation damages (lost profits).
In her report, da Silva provided two damages methods. The first method provided a damages calculation that would restore Plaintiffs to the economic position they would have occupied absent Defendants’ representations, the so-called unwind damages theory. The second method accounts for Plaintiffs’ investment in the franchise and provided a damages calculation that would put Plaintiffs in the position they would have been in had 360° Painting fulfilled its obligations, the so-called but-for damages theory.
Under da Silva’s but-for damages theory, she calculated the difference between Plaintiffs’ actual profit and losses and Defendants’ financial projections for gross revenue and expenses. Testimony regarding this theory is integral to proving Plaintiffs’ damages on their fraud and breach of contract claims.
Under Massachusetts law, Plaintiffs who have proved negligent misrepresentation are entitled to recover damages including the pecuniary loss caused by their reliance on the false information.
Defendants argued that da Silva included no evidence regarding the worth of the franchise when Misiph purchased it.
However, even if Defendants believe da Silva’s testimony is insufficient to prove one specific metric of loss, that does not invalidate her entire testimony, particularly where that testimony is relevant to other categories of damages. Because Plaintiffs bear the burden of proving each of their requested damages, da Silva’s calculations are relevant to their various theories of recovery.
2. Methodology
Defendants argued that da Silva’s testimony should be excluded because her methodology does not include actual performance data and the data on which she relied is too narrow in scope.
Specifically, Defendants criticized: her reliance on an assumption that had Misiph continued as a franchisee, he would have operated his franchise for 10 years; her failure to clarify or quantify how franchisor support figured in her calculation; her failure to account for variables like COVID-19 or market conditions; and her failure to use internal tracking metrics in her calculations, among other criticisms. This Court found that these challenges go to the weight of the evidence, not its admissibility.
Here, da Silva clearly described the economic damages model she used, stating that she used a “widely accepted damages methodology.” Defendants have provided no evidence to the contrary. Indeed, Plaintiffs represent that at his deposition, Herbst did not take any issue with da Silva’s methodology. Further, the ten-year term used in the report is not unsupported speculation; rather, it is rooted in the initial term of the Franchise Agreement itself. The other variables da Silva used are clearly described and supported by a detailed economic model within her report.
3. Legal Or Narrative Conclusions
Finally, Defendants argued that da Silva’s opinions on the consistency of the FDD and Misiph’s mitigation efforts are improper narrative or legal argument. Specifically, Defendants contended that: (1) da Silva’s opinion that the FDD provided to Misiph is inconsistent with the financial information supplied during discovery is jury argument; and (2) her use of the word “materially” and her opinions regarding Misiph’s duty to mitigate damages constituted legal argument.
Here, da Silva’s analysis involves a mathematical reconciliation of disparate financial data sets. This Court found that an accounting of how these figures are derived and reconciled provides a technical framework that exceeds the common knowledge of a lay juror. Da Silva’s opinion would help the trier of fact to understand the evidence and/or to determine a fact in issue. It is therefore admissible.
In her testimony, da Silva did not purport to render an opinion that Defendants knowingly made a false representation of material fact to induce Misiph to enter the franchise agreement. Rather, she sought to opine that her calculations differed significantly from the figures stated in the FDD.
This Court did, however, find that da Silva’s opinion that “Misiph has a duty to mitigate damages and did, in fact, take reasonable, non-burdensome steps to avoid losses” must be excluded. While accountants may calculate any offset of earned income against claimed losses, they are not qualified to offer a legal conclusion regarding what the law requires of a Plaintiff’s mitigation efforts. Similarly, an expert accountant may not opine on the reasonableness of a Plaintiff’s mitigation efforts as this is a quintessential jury question. Rather, these facts may be offered to the jury, but not by da Silva in the form of expert opinion. The jury may then reach its own conclusion.
Edward J. Herbst
Plaintiffs sought to exclude Herbst’s testimony, alleging that he is unqualified to offer damages opinions, his methodology is unreliable, and his analysis rests on inaccurate factual data.
1. Qualifications
Plaintiffs argued that Herbst is unqualified because he has never testified as an expert and has admitted to lacking the competence to perform an independent damages model or business valuation.
As described above, Herbst, a CPA and CFF, has extensive experience in financial investigations. His lack of history as a testifying expert or prior experience in franchise disputes and business valuation does not disqualify him from serving as a rebuttal expert. An expert’s training in a general field, in this case forensic accounting, is often sufficient to permit testimony on specialized sub-topics within that field.
2. Methodology
Plaintiffs further challenged Herbst’s methodology, characterizing it as a subjective “armchair” critique that lacked an independent analytical framework.
Along with analyzing da Silva’s report and its accompanying premises, methodology, and findings, Herbst’s methodology consisted of reviewing documents such as the complaint, Defendants’ amended counterclaims, portions of deposition transcripts, and copies of Misiph’s 2019-2023 tax returns. Then, Herbst applied his forensic accounting background to identify what he characterized as incorrect or unstandardized variables in da Silva’s calculations.
His report indicated that he was looking for foundational support for da Silva’s opinion within the bounds of accounting principles. The fact that he did not perform independent calculations to show exactly how a change in variables would move the final damages number may diminish the weight of his testimony, but it does not make his methodology inherently unreliable. Accordingly, the Court held that Herbst’s testimony is not excludable on this basis.
3. Data Accuracy
Finally, Plaintiffs argued that Herbst’s analysis is based on incomplete information. Specifically, Plaintiffs alleged that Herbst reviewed only portions of Misiph’s and Flick’s depositions, which led Herbst to make incorrect assumptions and effected his analysis.
In a deposition, Herbst acknowledged certain errors, such as his misclassification of commissions which were actually fixed franchise fees. These admissions and other alleged inaccuracies go to the weight and credibility of his testimony.
A jury is capable of determining whether Herbst’s critique remains valid despite these errors or if his misunderstanding of the underlying data renders his conclusions unpersuasive.
Held
The Court granted in part and denied in part Defendants’ motion to exclude all of Elisabeth O. da Silva’s testimony.
The Court denied Plaintiffs’ motion to exclude Edward Herbst’s testimony.
Key Takeaway
The reliability of an expert’s methodology “is a flexible inquiry, allowing for consideration of factors like whether the expert’s methodology has been objectively tested; whether it has been subjected to peer review and publication; the technique’s known or potential error rate; and whether the expert’s technique has been generally accepted within the relevant industry.”
An expert’s failure to include specific variables in a complex financial model does not render the testimony inadmissible so long as the underlying assumptions are those that experts make with some frequency.
Plaintiff Barrett Business Services, Inc. (“BBSI”) is a human resources management company that contracts with small and medium-sized businesses to provide human resource management solutions, including temporary staffing and professional services. It provided these services to employers throughout the Yakima area and particularly to fruit growers and other agricultural companies.
On April 23, 2014, BBSI hired Defendant Charles Colmenero (“Colmenero”) as an area manager to start on May 12, 2014. Colmenero quit BBSI on July 12, 2022. On July 17, 2015, BBSI hired Defendant Santiago Alejo (“Alejo”) as a Recruitment Specialist to start on July 27, 2015. Alejo quit BBSI on July 8, 2022. Colmenero and Alejo set up their own business, Repsel Associates, Inc., d/b/a/ Personna Employment Solutions (Personna).
Plaintiff brought this suit against Defendants alleging various claims including violation of the Washington Uniform Trade Secrets Act (“UTSA”) and the Federal Defend Trade Secrets Act (“DTSA”) through misappropriation of trade secrets. Defendants also asserted several counterclaims against Plaintiff.
Plaintiff has submitted an expert report and declaration by William E. Partin (“Partin”) pertaining to Plaintiff’s alleged damages. Defendants have filed a Daubert motion to exclude Partin’s testimony.
Accounting Expert Witness
William E. Partin is the President of the accounting firm of Mueller & Partin Forensic Accountants and Forensic Economists where his practice is the economic analysis of damage claims in disputes involving personal injury, wrongful death, business income losses and business valuations. He is a member of the American Institute of Certified Public Accountants, the National Association of Forensic Economists, the Washington Society of Certified Public Accountants and the American Society of Appraisers.
Partin has been qualified as an expert witness in the fields of economics, business valuation and accounting. He has testified in numerous states regarding damage measurement issues. Partin has provided seminars to the insurance industry on measurement of economic damages as well as published articles concerning the framework for the measurement of business income losses. He received his Bachelor’s Degree in Business Administration. from Washington State University and has been practicing since 1976.
Defendants did not challenge Partin’s qualifications as an accountant but rather contended Partin’s testimony is unreliable because it is based on false assumptions and conclusory methods.
To begin with, Partin summarized all of Personna’s invoices issued to its clients from July 2022 through August 2023. He then identified nine of those clients invoiced as having been clients of BBSI within one year prior to Defendants’ end of employment with BBSI and that were directly managed by Colmenero and Alejo while they were employed by BBSI.
Partin also compared BBSI’s contribution margins realized for its Yakima, Moses Lake, and Hermiston branches from January 1, 2021 through July 31, 2022, prior to Defendants leaving BBSI, to those contribution margins realized for the same branches August 1, 2022 through September 30, 2023, after Defendants left BBSI. Partin found that BBSI incurred a decline in gross revenue and contribution margins for the year after Defendants left BBSI and attributed the total lost contribution margin to Defendants’ misappropriation which totaled $1,254,960.
Finally, Partin calculated the total estimated lost contribution to BBSI’s profit and overhead for the next ten years, based on anticipated BBSI testimony that the average customer retention is approximately ten years, by combining the $801,840 allegedly already realized the first year with the $1,254,960 that BBSI would have realized each year for the next nine years but for Defendants’ misappropriation.
Analysis
To the extent Partin’s testimony contains legal conclusions, those must be excluded. However, the Court found that Partin’s methodology behind his first calculation of BBSI’s estimated damages from the actual revenue realized by Personna over the fourteen-month period from nine previous clients of BBSI that were directly managed by Defendants to be sufficiently reliable to avoid exclusion.
Partin’s testimony as to calculated future loss profits based on the decline in revenue across BBSI’s geographically adjacent branches in the year after Defendants’ departure from BBSI is however too speculative. Partin was told by BBSI to assume that the decline in revenue across all branches was a result of Defendants’ misappropriation of trade secrets. Now that the Court has dismissed Plaintiff’s trade secret claim as to its temporary-employee list, BBSI’s list of its clients’ pricing and needs is the only remaining possible trade secret misappropriation claim that is at issue in this case. As such, Partin’s damages calculations stemming from BBSI’s lost revenue is overly broad.
First, Partin’s calculations of lost revenue from 2022 to 2023 include many customers that contributed no revenue to BBSI from August 2022 through September 2023 but nor were they invoiced by Personna between July 2022 and August 2023. Partin’s damages calculation based on an assumption that all of BBSI’s loss in revenue across all three branches between 2022 and 2023, a total of $1,254,960, was attributed to Defendants’ misappropriation of BBSI’s clients’ pricing and needs is not calculated with reasonable certainty.
Therefore, by extension, Partin’s assumption that that $1,254,960 loss in revenue would have been realized each year for nine years thereafter if not for Defendants’ misappropriation was also not calculated with reasonable certainty and was excluded by the Court.
Held
The Court granted in part Defendants’ motion to exclude the testimony of William Partin.
Key Takeaway
While an expert cannot testify to a matter of law amounting to a legal conclusion, the Court found that Partin’s report sufficiently raises an issue of fact as to the damages element of Plaintiff’s misappropriation claim. It should be noted that Partin’s testimony was not fully excluded by the Court.
Plaintiffs Joshua Cane Jellison and Jessica Marie Jellison (collectively “Plaintiffs”) alleged violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, against PHH Mortgage Corporation, the assignee and servicer of their mortgage loan.
Plaintiffs claimed that they entered into a COVID-19 forbearance, which caused them to accrue past due payments. According to Plaintiffs, PHH offered to resolve the past due payments by way of a Federal Housing Administration (“FHA”) COVID-19 Recovery Standalone Partial Claim Mortgage (“PCM”), through which the FHA would have purchased Plaintiffs’ outstanding debt and secured it with a second position mortgage. Plaintiffs contended the PCM would have paused any monthly payments until the mortgaged property was sold or the mortgage serviced by PHH was paid in full or refinanced. They alleged that PHH did not timely approve Plaintiffs’ entry into the PCM and instead threatened foreclosure. PHH believed it properly rejected Plaintiffs’ applications for the PCM because Plaintiffs did not meet all of the requirements. Plaintiffs were eventually approved for the PCM and did not lose their home through foreclosure.
Plaintiffs alleged generally that they incurred damages because their credit score was substantially reduced which severely affected their ability to run their business.
When Plaintiffs produced the report of their economic expert, Key Coleman, Defendant PHH Mortgage Corp. filed a motion in limine to exclude the testimony of Coleman.
Accounting Expert Witness
Arthur Key Foster Coleman, CPA, CFA is Executive Director and Founder of Litigation Economic & Forensic Consulting Group LLC. Coleman has more than 30 years of experience providing business and financial analysis. His focus is on forensic accounting, commercial disputes, damages and expert testimony.
Coleman serves full-time as Assistant Professor of Business at Rosemont College.
Relying entirely on Jellison’s statements regarding his existing and future business ventures, Coleman concluded that Plaintiffs suffered economic damages in the amount of $322,608 from the alleged loss of the opportunity to expand Plaintiffs’ business by purchasing additional equipment.
In its challenge to strike Coleman’s testimony at trial, PHH argued that his opinions are “inherently unreliable” because “his economic damages calculations are predicated entirely on speculative and unverified information provided to him by Mr. Jellison.”
More specifically, PHH argued that Coleman’s opinions are based upon Joshua’s unsupported and unverified statements regarding (1) his future business plans; (2) the market conditions implicated by those plans; and (3) the viability and potential profits of those “purported plans.” PHH stressed that Coleman bases his opinion solely on what Jellison told him about demand for expanding his business.
Analysis
This Court and others, however, have noted that an owner of a business who participates in day-to-day operations is qualified to offer an opinion as to lost profits based on the company’s actual operating history.
The historical business information supplied by Jellison and relied upon by Coleman is based upon Jellison’s personal knowledge acquired from the day-to-day operations of East Coast.
As such, Coleman was justified in relying upon his discussions with Jellison, in conjunction with tax returns and other documents which corroborated Jellison’s representations concerning lost profits relating to expansion of his business.
Moreover, because Coleman’s report relies upon data from tax returns for years 2021 through 2023, which reveals not only sales revenue but also depreciation and amortization of equipment needed for the addition of new crews in 2022 and 2023, the data is relevant to the facts of the case.
Here, the information provided by Joshua Jellison is corroborated by East Coast’s tax returns.
Other documents Coleman relied upon include those reflecting the dramatic drop in Jellison’s credit score; 2022 Depreciation and Amortization Report; Automobile Schedule for East Coast Equipment; Refusal for Small Business Line of Credit from PNC Bank; Delinquent Tax Reminder from Westmoreland County Tax Claim Bureau; 2019-2023 Tax Returns of Partnership Income with supporting documentation; and other documents.
Tax records include information relating to equipment costs when adding the second and third crews in 2022 and 2023. Coleman outlined the methodology he used based on information he received from Jellison and supported by this documentation. Thus, there is an adequate factual foundation for Coleman’s opinions.
This factual foundation establishes a clear “fit” connecting Plaintiffs’ alleged damages with Coleman’s opinion. The cases relied upon by PHH simply do not carry the day.
Held
The Court denied PHH Mortgage Corp.’s motion in limine to exclude the testimony of expert witness Key Coleman.
Key Takeaway
In its discretion and considering all facts and circumstances, the Court found by preponderance of the evidence that Coleman’s report was supported by “good grounds,” and relevant such that it will assist the trier of fact. Coleman relied upon business tax returns, which were prepared by an outside accountant, and reviewed by the IRS. Coleman was able to corroborate Joshua Jellison’s representations from these documents. PHH, however, may conduct a thorough and vigorous cross examination of Coleman and Joshua Jellison at trial concerning future business plans and the market conditions supporting those plans.
Case Details:
Case Caption:
Jellison V. PHH Mortgage Corporation
Docket Number:
2:23cv739
Court Name:
United States District Court, Pennsylvania Western
Upper Deck claimed that Pixels has marketed and sold wall décor featuring images that infringe upon Upper Deck’s trademarks and Michael Jordan’s name, image, likeness, and publicity rights. Basically, Upper Deck brought this action pursuant to an exclusive agreement with Jordan (the “Jordan Agreement”) for the use of his name, image, likeness, and other publicity rights. Upper Deck asserted that the agreement also gives Upper Deck the right to commence actions on behalf of Jordan for infringement of the rights assigned in the Jordan Agreement.
Amongst other things, Upper Deck alleged violation and deprivation of the right of publicity, violations of the Lanham Act, registered trademark infringement, violation of California’s Unfair Competition Law, and California common law unfair competition.
Christian Tregillis was retained as a damages expert by Upper Deck to opine on the fair market value of Pixels’ alleged unauthorized use of Jordan’s rights. Pixels filed a motion to exclude Tregillis’ testimony, contending that his methodology is unreliable and based upon insufficient facts and data.
Pixels also contended that the premium multiplier Tregillis uses in his fair market value calculation is unreliable and that Tregillis’s two “Evidence Indicates” opinions are irrelevant.
Accounting Expert Witness
Christian Dale Tregillis holds an M.B.A. in Finance and Accounting. He has more than thirty years of experience analyzing financial, accounting, economic, statistical, and market issues, primarily relating to disputes, valuations, and license agreements covering intellectual property rights.
Tregillis has held leadership positions with many public accounting and licensing professional groups. He is also accredited in Business Valuation and certified in Financial Forensics, Public Accounting, and Licensing.
Tregillis calculated the fair market value of Pixels’ use of Jordan’s rights by analyzing comparable licenses for rights similar to those used by Pixels as a starting point to construct a hypothetical license.
Tregillis then adjusted the value of the benchmark comparable license to account for the other athletes included in the benchmark license, the length of time of Pixels’ use, and the fact that Pixels’ use of Jordan’s rights was not subject to any quality assurance or approval clauses. Pixels argued that the benchmark agreement chosen by Tregillis is insufficiently comparable and that Tregillis made improper assumptions to inflate the value of the benchmark license.
1. Underlying Facts and Data
Tregillis determined the Trends Agreement to be the most comparable to the facts at issue here and uses this agreement as the benchmark for his hypothetical license analysis. The Trends Agreement was a licensing agreement between Brevettar, described as “the exclusive licensing agent for Upper Deck,” and Trends International, LLC. The Trends Agreement granted Trends a license to manufacture, distribute, and sell collector’s edition posters and calendars featuring the name, image, likeness, signature, and statistical data of Michael Jordan, Wayne Gretzky, and Tiger Woods. A later amendment to the Trends Agreement also allowed Trends to sell canvas wall décor.
Pixels argued that the Trends Agreement is an improper comparable because Upper Deck was not a party to it, Upper Deck did not receive royalty payments from the agreement, and the Trends Agreement was not effective until two and a half years after Pixels alleged unauthorized sales began.
Here, the Trends Agreement concerned the same rights at issue in this case, Jordan’s name, image, likeness, and publicity rights. Further, the Trends Agreement covered the same types of products as those at issue here—posters, calendars, and wall décor. The Trends Agreement also covered products similarly priced to those sold by Pixels. Consequently, the Court found the Trends Agreement sufficiently comparable to serve as a reliable basis for the hypothetical license analysis Tregillis conducts.
2.The Premium Multiplier
After identifying the Trends Agreement as the best benchmark for his hypothetical license analysis, Tregillis used a premium multiplier to adjust for the fact that Pixels’ use of Jordan’s rights was not authorized and not subject to the quality assurance and approval clauses typically included in Jordan’s licensing agreements.
Tregillis calculated this multiplier by comparing two similar situations where Jordan’s rights were used, one of which was authorized (the “Hanes Transaction”) and one of which was unauthorized (the “Panini Settlement”). ) Tregillis compared the values of those transactions to calculate the percentage premium for unauthorized uses of Jordan’s rights.
Pixels argued that the application of this premium multiplier is unreliable and that the Hanes Transaction and Panini Settlement are not reliably comparable to the conduct at issue here.
Tregillis demonstrated the necessity of this premium adjustment by discussing Jordan’s carefully tailored brand and restrictive approach to licensing agreements.
Then, Tregillis conducted a comparative analysis using otherwise analogous transactions to calculate the value of unauthorized uses of Jordan’s rights. This analysis is grounded in evidence, and Tregillis’s application of his analysis logically follows. Therefore, the premium multiplier calculation and its application to the hypothetical license are sufficiently reliable to present to a jury.
Tregillis spent paragraphs of his report, supported by citations to the record, discussing the Hanes Transaction and Panini Settlement as well as how he used them in his analysis.
Tregillis did not use the Hanes Transaction and Panini Settlement as comparable to this case for the purpose of hypothetical license analysis; rather, he uses them in a comparative analysis to determine the value of Jordan’s rights when their use is not subject to any quality assurance or approval clauses.
B. The “Evidence Indicates” Opinions
Tregillis offered two “Evidence Indicates” opinions. First, “Evidence indicates that, as Upper Deck values its relationship with Jordan, one of the world’s most iconic athletes and personalities, Upper Deck protects both its rights and Jordan’s rights, while also ensuring it only produces and/or approves high-quality products that feature appropriate and value-enhancing uses of Jordan’s rights of publicity and trademarks.” And second, “Evidence indicates that the use made by Pixels is unauthorized and would not have been authorized by Jordan and/or Upper Deck.” Pixels argued that these opinions are irrelevant and should be excluded.
The Court found that the two “Evidence Indicates” opinions will aid the jury in understanding Tregillis’ hypothetical license analysis. The “Evidence Indicates” opinions shed light on the fair market value of Jordan’s rights as Pixels used them and demonstrate the necessity of the premium multiplier. More specifically, the opinions will help the jury to understand how Upper Deck and Jordan value Jordan’s rights and typically license them.
Pixels argued that the second “Evidence Indicates” opinion “is a naked attempt to elevate Upper Deck’s allegations of unauthorized use by Pixels into a liability opinion against Pixels.”
The Court agreed that Tregillis’ second “Evidence Indicates” opinion goes to brand standards and addresses how the fair market value of Jordan’s rights is impacted when subject to quality assurance and approval clauses.
However, grounding the second “Evidence Indicates” opinion in language about “authorization” toes the line of embodying a legal conclusion. Accordingly, while the Court found that Tregillis is not offering a legal conclusion, his testimony at trial should make clear that Tregillis is merely assuming Pixels’ liability for the purposes of his analysis and is offering opinions about authorization solely to support his damages analysis, not to offer a legal conclusion.
Held
The Court denied Defendant Pixels.com’s motion to exclude the testimony of Plaintiff The Upper Deck Company’s expert witness, Christian Tregillis.
Key Takeaway:
Any lingering doubts as to the negative impact of Tregillis’s testimony can be managed by instructing the jury to follow only the judge’s instructions as to what the law is and to disregard any testimony that is inconsistent with those instructions.
This litigation arises from Plaintiff Raymond Flanks’ (“Plaintiff”) wrongful conviction for first-degree murder in 1985. Plaintiff alleged that the Orleans Parish District Attorney’s Office (“OPDA”) secured his wrongful conviction in violation of his constitutional rights by withholding material exculpatory evidence.
Brandy Bradley is a vocational evaluator retained by Plaintiff to estimate the earnings he lost while incarcerated. Defendants contended that Bradley’s proposed testimony is unreliable and irrelevant.
Vocational Evaluation and Rehabilitation Expert Witness
Brandy E. Bradley is a rehabilitation counselor licensed by the State of Louisiana. She is also a certified life care planner and certified vocational evaluator; and she is a vocational expert for the Department of Health and Human Resources, Social Security Administration, and Office of Disability Adjudication and Review. She holds an undergraduate degree in psychology, a graduate degree in rehabilitation counseling, and a post-graduate certification in life care planning.
Based on Plaintiff’s education during his incarceration and his post-incarceration vocational testing scores, Bradley opined that Plaintiff “could have established a career path had he not been incarcerated.”
Bradley assumed that had Plaintiff not been convicted of first-degree murder in 1985, he would have been released on parole in 1991, after serving half of his fifteen-year sentence for a separate armed robbery conviction. Bradley concluded that Plaintiff “had the potential to earn” wages equal to the annual mean wage for Black males with GEDs/high school diplomas from 1991 to 2022.
Bradly provided two alternative lost earning capacity calculations––$393,692.00 if Plaintiff had earned minimum wage from 1991 through 2022 or $975,578.00 if Plaintiff had earned the annual mean wage for a Black male with a GED or high school diploma.
Defendants’ Arguments in Support of the Motion
Defendants argued that it is not reasonable to assume that the Plaintiff would have maintained continuous, full-time employment at any wage, absent evidence that the Plaintiff had obtained and maintained such employment before the injury complained of in his lawsuit.
Next, Defendants argued that the calculation of lost wages is unreliable because it does not deduct the expenses Plaintiff would have incurred had he not been out of prison earning minimum wage.
Finally, Defendants argued that the calculation of lost wages is unreliable and irrelevant because it is based on the unreliable premise that Plaintiff would have been released on good time parole after serving 7.5 years in prison for the armed robbery conviction.
Analysis
The Court held that Plaintiff should be free to make an argument to the jury that he could have earned more than his pre-incarceration income suggests.
Presumably, Defendants will present testimony to show that Plaintiff would have earned even less than $393,692.00, because he was not earning minimum wage at the time of his incarceration. Defendants can question Bradley on this issue, and they are free to present evidence showing how much Plaintiff earned in the years preceding his incarceration. If the jury finds for Plaintiff on liability, it will then be for the jury to decide how much Plaintiff would have earned had he not been wrongfully incarcerated.
Consistent with prior cases on this issue, the Court will require Bradley to amend the report to reduce the lost wages/benefits numbers to account for expenses that Plaintiff would have sustained had he been out of prison.
Finally, Defendants contended that Bradley’s testimony should be excluded because it is based on the incorrect premise that Plaintiff would have been released from prison in 1991 on the armed robbery conviction.
The Court will instruct the jury on the applicable law regarding “good time” release. If the jury finds for Plaintiff on liability, it will then be tasked with the factual determination on when Plaintiff would have been released from prison absent the allegedly wrongful conviction. Based on that determination, the jury will then decide how much income Plaintiff lost from the time he would have been released until his actual release in 2022. This is not a basis for exclusion of Bradley’s testimony.
Held
The Court denied the Defendants’ motion to exclude the testimony of Brandy Bradley.
Key Takeaway:
The Defendants have not shown that Bradley’s opinions were so irrelevant and unreliable as to require exclusion pursuant to the Court’s gatekeeping obligation under Daubert and its progeny.
Plaintiff Misty Blanchette Porter was previously employed as a physician in the Reproductive Endocrinology and Infertility (“REI”) Division within Dartmouth Health’s Department of Obstetrics and Gynecology (“OB/GYN”).
After Dartmouth Health made the decision to shut down the REI Division entirely and to terminate all three physicians employed therein—including Porter—Porter filed suit against Dartmouth Health citing disability discrimination.
Dartmouth Health argued that the testimony of Porter’s damages expert, Dr. Robert L. Bancroft, should have been excluded due to untimely disclosure under Rule 26.
Economics Expert Witness
Robert L. Bancroft holds a bachelor’s degree in economics from the University of Vermont (“UVM”); a Master of Science in agricultural economics from UVM; and a Ph.D. in agricultural economics from Purdue University.
From June 1979 until August 1981, Bancroft worked for the United States Department of Agriculture to develop an econometric forecasting model to forecast farmers’ participation in certain government programs and to provide testimony and research to the U.S. House of Representatives. Next, Bancroft began work as an assistant professor in the Department of Agriculture and Resource Economics—later renamed the Department of Community Development and Applied Economics—at the University of Vermont in August 1981. Bancroft continued as an assistant professor of economics until 1991, when he became an adjunct professor. He worked as an adjunct professor of economics until 1996.
Dartmouth Health contended that the Court erred by admitting testimony and exhibits offered by Porter’s expert damages witness, Bancroft, because Porter failed to timely disclose several of his expert opinions under Rule 26.
The Court found that the timing of the disclosure of Bancroft’s March 19, 2025, supplemental report did not warrant a new trial. The March 2025 supplemental report was a direct response to defense counsel’s cross-examination of Bancroft at a hearing on Dartmouth Health’s motion to exclude Bancroft from testifying as an expert witness at trial.
Cross-examination elicited that Bancroft was unaware of certain information relevant to his calculations. Bancroft subsequently updated his report on March 19 to incorporate this new information. Dartmouth Health plainly knew this information before Bancroft issued his March 19 report, as defense counsel raised the issue at the evidentiary hearing.
Moreover, Bancroft did not change the substance of his opinion. He used the same methodology in his March supplemental report as in his prior reports, changing only the inputs to produce updated damages calculations.
The Court did not share Defendants’ view that Bancroft issued his corrective March 2025 report because his testimony at the March 12 evidentiary hearing revealed that his August 2024 report “had not included key facts and assumptions . . . such as Porter’s promotion to full professor in July 2023 and her most recent earnings from UVMMC at a higher rate of pay than what Bancroft had projected.”
Rule 37
Even if the disclosures were untimely, admitting Bancroft’s testimony was not error because the disclosures were substantially justified or harmless under Rule 37.
The first factor—the willfulness of the non-compliance regarding the March 2025 report and the reason for the noncompliance—did not weigh definitively in either party’s favor. Porter knew well before March 2025 that she had received a $7,698 tuition credit for her son’s undergraduate education at UVM in 2019, and Bancroft could have included that information in his August 2024 report. On the other hand, Dartmouth Health knew that it had approved salary freezes in 2020 and 2021, and Dartmouth Health did not allege that Porter or Porter’s expert had that information until March 2025.
The efficacy of lesser sanctions and the possibility of a continuance weigh against excluding Bancroft’s testimony. Dartmouth Health’s proposed alternative—introducing its own expert witness to rebut Bancroft’s supplemental report—was simply not feasible only four days before a three-week trial.
The duration of noncompliance factor was inconclusive. Although Porter was aware of some information that impacted her expert’s damages calculations well in advance of the March 2025 report, other information was only in the possession, custody, or control of Dartmouth Health until the March evidentiary hearing. Bancroft submitted his updated report one week after the evidentiary hearing.
The Court is unaware of any previous warning to Porter that an untimely supplemental expert report could result in exclusion of the expert witness.
Moreover, Dartmouth Health already had a significant amount of the updated information Bancroft relied on for his March 2025 supplemental report. It is difficult to conceive how admitting the March 2025 report, or Bancroft’s testimony consistent with that report, prejudiced Dartmouth Health given that the report estimated substantially lower damages figures than any of Bancroft’s previous reports.
Held
The Court held that the relevant factors weighed against excluding Robert Bancroft’s testimony.
Key Takeaway:
Without Bancroft’s testimony, Porter would have been severely disadvantaged in quantifying her claimed economic damages. Such a sanction would have been disproportionate to the alleged noncompliance given that the late disclosure had a reasonable basis; Bancroft’s methodology did not change from one report to the next, and Bancroft’s final report substantially reduced Porter’s estimated damages.
Case Details:
Case Caption:
Blanchette Porter V. Dartmouth Hitchcock Medical Center
