Expert Witness Profiler

Tag: Commerce

  • Technology Expert Allowed to Testify Despite Not Using the Software Systems at Issue

    Technology Expert Allowed to Testify Despite Not Using the Software Systems at Issue

    Plaintiffs Donna Wood, Caelan Doherty, Max Goldstein, Bridget Logan, James Kyle Newman, Lakisha Watson-Moore, Tristan Angulo, Alexandra Marie Wheatley-Diaz, Robin Ceppos, and Nick Coker (together, “Plaintiffs”), individually and on behalf of all others similarly situated, bring this collective and class action against Mike Bloomberg 2020, Inc. (the “Campaign” or the “Defendant”), asserting claims under the Fair Labor Standards Act (the “FLSA”) and state labor laws.

    In November 2019, Michael Bloomberg announced his candidacy for President of the United States. The Campaign’s purpose was to advance Bloomberg’s presidential candidacy. Plaintiffs worked as Field Organizers (“FOs”) and “were tasked with primarily conducting phone calls and door-to-door canvassing with potential voters in the day-to-day functional work of the Campaign.”

    Plaintiffs offered testimony from Jonathan Jaffe as an expert witness to establish that Plaintiffs communicated data in interstate commerce so as to be individually covered by the FLSA.

    The Campaign presented arguments regarding the admissibility of his testimony under Rule 702 and Rule 403.

    Technology Expert Witness

    Jonathan Jaffe is a technology consultant, data scientist, software developer, and the founder and owner of Its-Your-Internet, an advanced technology software and general litigation support consulting firm, established in 2008.

    His areas of expertise include “how the interne works, how a data center works, how we code things, how these apps work, [and] how these applications work,” and he has testified as an expert in numerous other matters.

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

    Discussion by the Court

    Jaffe opined that “Plaintiffs and opt-in Plaintiffs transmitted data and information across state lines using the NGP Van system” and “the Thru Talk system.”

    Jaffe describes how, based on the material he reviewed, data that Plaintiffs collected would cross state lines (1) when it was stored in a single, national database located in another state, and (2) when it was aggregated to be viewed by employees in the Campaign’s headquarters in New York.

    He relied on evidence that FOs collected voter data and inputted that data into VAN and ThruTalk. Jaffe noted that, in order to transmit the data they had collected across state lines for storage in a database located in another state, Plaintiffs either manually clicked a button to “sync” or enabled an “auto-sync” feature in the software. 

    Jaffe compares the “function of the underlying system” to “a long-distance phone call [by which] an individual would not physically transport their voice across state line[s] [but] effected the transmission of their voice across state lines by dialing the number” or “mailing a package through UPS or FedEx” whereby a delivery person, rather than the sender, physically transports the package. 

    Rule 702

    The Campaign insists that Jaffe’s analysis merely “addresses an entirely different question: whether data and information that was entered in VAN and ThruTalk by Plaintiffs crossed state lines at all, at any point, by operation of the equipment being used, without consideration of whether Plaintiffs were responsible for the purported transmission.”

    The Campaign’s highly technical relevance argument—that “whether Plaintiffs transmitted data” with a specific action is a different question from whether “the software’s internal workings” or a “headquarters request for information from another state” caused the data transmission —is not supported by the case law.

    The Court stated that none of the cases cited by the Campaign establish a causation requirement for individual FLSA coverage.

    The Campaign next insists that Jaffe’s conclusions are unreliable because his “opinions and testimony are based on insufficient facts and data, and they are the product of inappropriate speculation.”

    The Court found that the Campaign’s argument, namely that “Jaffe admittedly never used the software systems at issue, and he also lacked the information required to establish that all Plaintiffs used the software systems,” does not satisfy this high bar.

    While Jaffe never used the software systems at issue, he “utilized [his] 25 years expertise and experience with developing, expanding, and evaluating Enterprise level software systems.”

    The Campaign’s assertion that Jaffe’s opinions lack reliability because “he did not confirm that all Plaintiffs used the VAN and/or ThruTalk software” and “did not have the data required to make determinations regarding the number of days that Plaintiffs may have transmitted data across state lines, the amount of time in each day that Plaintiffs may have spent transmitting data across state lines, or the volume of data that Plaintiffs may have transmitted across state lines” was likewise rejected by the Court.

    Rule 403

    The Campaign first argues that Jaffe’s opinions and testimony are not relevant within the meaning of Daubert  “because they will not assist in understanding or resolving the issue of Plaintiffs’ alleged individual FLSA coverage.” 

    However, Jaffe’s conclusions that “Plaintiffs and opt-in Plaintiffs transmitted data and information across state lines using the NGP Van system” and “the Thru Talk system” are plainly relevant to the question of whether Plaintiffs’ work involved the use of instrumentalities for communication across state lines.

    The Campaign’s argument that “Jaffe fails to present information and opinions that would assist the jury in resolving whether Plaintiffs transmitted data across state lines and whether they did so on a regular and recurrent basis, and he instead opines on whether data was transmitted across state lines at all, without consideration of whose actions caused the transmission or the frequency of transmission” does not present a danger of misleading the jury.

    Basically, Jaffe does not opine on the ultimate legal issue—whether Plaintiffs are individually covered under the FLSA.

    Held

    The Court denied the Campaign’s motion to exclude the opinions and testimony of Jonathan Jaffe.

    Key Takeaway:

    While Jaffe never used the software systems at issue, he “utilized [his] 25 years expertise and experience with developing, expanding, and evaluating Enterprise level software systems.” Moreover, Jaffe’s conclusions are plainly relevant to the question of whether Plaintiffs’ work involved the use of instrumentalities for communication across state lines.

     The Campaign’s arguments, therefore, go to the weight, rather than the admissibility, of the opinion in connection with the determination of whether Plaintiffs have met their burden to establish individual coverage under FLSA.

    Case Details:

    Case Caption: Wood V. Mike Bloomberg 2020, Inc.
    Docket Number: 1:20cv2489
    Court: United States District Court, New York Southern
    Order Date: March 31, 2025
  • Transportation Engineering Expert Witness’ Opinion on Routine Commerce Deemed Reliable

    Transportation Engineering Expert Witness’ Opinion on Routine Commerce Deemed Reliable

    This lawsuit arises out of Port Arthur’s decision to designate Sassine Avenue as a “no truck route.” Kirk Thomas (“Thomas”) and KT Trucking and Cattle, LLC (“KT Trucking”) (collectively, “Plaintiffs”) engaged in various agricultural and commercial activities on Thomas’ property, including a land farming operation and the management of his personal trucking business. As a result, large commercial vehicles frequently entered and exited the property. Plaintiffs asserted that the only safe way for these vehicles to access the property was via Sassine Avenue. However, Port Arthur’s designation prohibited large commercial vehicles from using the road.  

    On May 20, 2024, the City of Port Arthur, Texas (“Port Arthur”), and Flozelle Roberts (“Roberts”) (collectively, “Defendants”), designated John McInturff as a testifying expert, expecting him to support their position that Thomas’ use of Sassine Avenue did not constitute routine commerce.

    In response, Plaintiffs filed a motion to exclude and/or limit the testimony of Defendants’ expert John McInturff. Thereafter, they submitted an amended motion to exclude and/or limit his testimony, wherein they attached exhibits they had omitted from the original filing.

    Transportation Engineering Expert Witness

    John McInturff is a civil engineer licensed in Louisiana and Texas. McInturff graduated with a Master of Engineering from Texas A&M University and has spent about 50 years, working specifically in highway, traffic, and transportation engineering. Currently, McInturff is a Principal Engineer at Kittelson, LLC, in College Station, Texas.

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

    Discussion by the Court

    Plaintiffs styled their objections to McInturff’s testimony as two distinct claims. First, Plaintiffs asserted that McInturff’s testimony should be excluded because it was so speculative that it constituted the ipse dixit of the expert. Second, Plaintiffs maintained that McInturff’s testimony should be excluded because “the analytical gap between the facts and McInturff’s opinion on whether hauling drilling mud is routine commerce is vast.”

    McInturff’s Reliability

    Plaintiffs did not challenge McInturff’s reliability under the Daubert factors. Instead, they maintained that his testimony lacked reliability because it was based on insufficient facts and data. Plaintiffs claimed that McInturff not only failed to link his opinion regarding the characterization of Thomas’ use of Sassine Avenue to his knowledge and expertise as a civil engineer but also relied on erroneous and unsupported facts to arrive at his conclusions.

    McInturff’s Report

    In this case, Plaintiffs challenged McInturff’s conclusion regarding the definition of “routine commerce” under Port Arthur Ordinance 106-41(b)(13). The relevant ordinance stated that Port Arthur cannot prohibit a commercial vehicle from using a street for “the purpose of going directly to or from any residential, commercial or industrial establishment abutting on such street for purposes of routine commerce.”

    Regarding what constitutes “routine commerce”, his report stated that:

    “Trucks traveling to/from the Thomas property are not using Sassine Avenue for routine commerce such as trips for pickup or deliver of goods or services; i.e., delivery of a refrigerator purchased by a homeowner for delivery to their
    residence, FedEx/UPS deliveries, etc. Instead, the evidence provided to me suggests that the trucks are engaged in non-routine heavy hauling in connection with the disposal of drilling mud from discrete construction projects. The evidence further shows that these hauling activities included twenty-four hour operations involving repeated trips up and down Sassine Avenue from FM 365, which for purposes of traffic design and engineering, is also not routine commerce to be expected on a residential street like Sassine Avenue”.

    McInturff Failed to Link his Opinion Regarding the Characterization of Thomas’ Use of Sassine Avenue to his knowledge and Expertise as a Civil Engineer

    McInturff evaluates the use of Sassine Avenue from the perspective of a traffic design and engineering expert. Due to the residential nature of the area, McInturff opined that the routine commerce on Sassine Avenue is commerce that provides residential goods and services to that neighborhood.

    From a traffic design perspective, McInturff’s report evaluates what constitutes “routine commerce” based on the type of street at issue, the surrounding area, and the type of commerce that street would be expected to withstand. Additionally, McInturff provides examples, stating that routine commerce on Sassine Avenue could include use of the road by package delivery services, such as FedEx or UPS. Since Sassine Avenue, as a residential road, was not designed to withstand repeated and long-term use by large commercial vehicles like the ones used in Thomas’ commercial endeavors, McInturff concluded that Sassine Avenue’s residential design combined with its unsuitability for use by large commercial vehicles demonstrated that Thomas’ commercial activity did not constitute routine commerce.

    The Court held that Plaintiffs’ first contention fell flat because Defendants had set forth sufficient facts and data to bridge the alleged analytical gap between McInturff’s opinion and his expertise.

    McInturff based his opinion on erroneous facts and data

    Specifically, Plaintiffs asserted that McInturff did not base his opinion on “any information . . . other than his belief that the drilling mud is coming from discrete construction projects that sometimes include twenty-four-hour operations and involve repeated trips.” Plaintiffs then elaborated that there is no evidence that the drilling mud Thomas uses in his land farming operation comes from “discrete construction projects.” Rather, Plaintiffs maintained that the drilling mud results from laying pipelines and drilling for oil, practices that Plaintiffs contend are routine in Southeast Texas. 

    Plaintiffs contended that the repetitious nature of the trips demonstrated the routine nature of Thomas’ commercial activity.

    Regardless of the mud’s origin, the parties agreed that Thomas commonly permits companies to dispose of drilling mud on his property as part of his land farming operation. The parties also agreed that large commercial vehicles are needed to haul drilling mud. In his report, McInturff did not highlight Plaintiffs’ hauling practices to establish that the mud resulted from discrete construction projects. Rather, McInturff discussed Thomas’ hauling practices to emphasize the inconsistency between Thomas’ use of Sassine Avenue and the common commercial activity in that area. In other words, the source of the drilling mud was inconsequential to McInturff’s opinion. The Court held that McInturff’s opinion that Thomas’ proposed use did not constitute “routine commerce” was sufficiently based on his knowledge of traffic engineering and design.

    Held

    While the Plaintiffs’ original motion to exclude the testimony of Defendants’ expert John McInturff was denied as moot, the Plaintiffs’ amended motion to exclude and/or limit the testimony of McInturff was denied by the Court.

    Key Takeaway:

    McInturff’s report reflected a thorough and methodical evaluation of the present case from the perspective of a civil engineer. McInturff explained why, based on his knowledge of traffic design and roadway engineering, he determined that Thomas’ proposed use of Sassine Avenue did not constitute routine commerce. McInturff relied on the design of the road, its residential designation, the relevant zoning ordinances, the residential nature of the surrounding area, and his knowledge of the germane traffic patterns and signals. Consequently, McInturff’s challenged testimony and his underlying opinion rely on the facts of the present case, the data provided, and his own expertise. 

    Please refer to the blog previously published about this case:

    Safety Expert Witness’ Lack of Consideration of Certain Documents did not Render his Opinion Unreliable

    Case Details:

    Case Caption: Thomas vs. City Of Port Arthur, Texas
    Docket Number: 1:23cv282
    Court: United States District Court for the Eastern District of Texas
    Order Date: February 12, 2025