Plaintiffs Thomas O’Keefe, Kenneth Cunningham, Joseph Lewis, Brian Judge, Byounghoon Ahn, Dione Heusel, Betsy Riggs, and Thomas West are former executives and employees of Defendant Smoothie King Franchises, Inc.
This action arises out of Defendants’ allegedly wrongful decision to terminate Plaintiffs’ stock options in SK USA, Inc.
Plaintiffs engaged expert Craig J. McCann, Ph.D. and CFA, “to provide an analysis of the value of the Plaintiffs’ options on stock of SK USA.”
However, Defendants filed the motion to exclude McCann’s testimony based on three reasons: (1) McCann failed to adhere to the applicable professional standards in his field; (2) McCann’s stock valuation opinions focus on irrelevant time frames; and (3) there is too great an analytical gap between the facts of this case and McCann’s analysis.
Economics Expert Witness
Craig J. McCann, Ph.D. is Principal, SLCG Economic Consulting, LLC. He has taught graduate investment management at Georgetown University and at the University of Maryland, College Park. McCann is a Chartered Financial Analyst.
McCann received a B.A. and an M.A. in Economics from the University of Western Ontario and a Doctorate degree in Economics from the University of California, at Los Angeles.
In his expert report, McCann summed up his findings with two main points:
Value Based on Stock Sale: He calculated that each of the Plaintiffs’ stock options was worth about $3,164 using a standard valuation method (called the OPM backsolve) based on SK USA Holdings’ recent sale of preferred stock.
Real Value is Higher: He argued that this number is too low because the company’s main shareholder deliberately chose to raise $100–$130 million in a way that avoided selling stock, which suggests the stock was more valuable than the sale price implied. Based on this, McCann concluded that the plaintiffs’ stock options were actually worth between $3,337 and $3,619 each.
He also presented a table showing how the options’ value would change if the company’s total value was between $700 million and $800 million (as supported by private equity offers and executive testimony). In that case, he said the options would be worth $3,246 to $3,743 each — again, more than the $3,164 calculated using the first method.
Motion to Exclude
Defendants argued that the Court should exclude McCann’s testimony because he admitted that he did not adhere to the Uniform Standards of Professional Appraisers, the International Valuation Standards, the American Society of Appraisers’ standards, the National Association of Certified Valuators and Analysts’ standards, or the Association of International Certified Professional Accountants’ (“AICPA”) standards in forming his opinions.
Defendants further argued that McCann violated industry standard by not using multiple methods to calculate the value of Plaintiffs’ stock options.
Additionally, Defendants argued for exclusion of McCann’s testimony based on the dates he valued the Plaintiffs’ stock options. According to Defendants, the relevant date for the valuation of Plaintiffs’ stock options is the date the alleged breach of contract occurred.
Finally, Defendants sought to exclude McCann’s testimony, arguing that there is too great an analytical gap between the facts he considered and the opinions he reached.
Analysis
However, the Court found McCann’s opinions to be relevant and reliable and found that his testimony will aid the jury in resolving the factual dispute as to the value of the Plaintiffs’ stock options. The Court was convinced that McCann’s reasoning is scientifically valid.
Basically, the criticisms raised by the Defendants all are related to the bases and sources for McCann’s opinions.
Held
The Court denied Defendants’ motion to exclude the testimony of Craig McCann.
Key Takeaway:
As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the [factfinder’s] consideration. Furthermore, experts may rely on one version of disputed facts in forming their opinions. Any weaknesses in his testimony based on questionable assumptions may be dealt with on cross-examination.
Basically, the Court is convinced that the Defendants will effectively cross-examine McCann as to the bases and sources of his valuation opinions and will highlight any weaknesses in his testimony for the benefit of the jury.
Case Details:
Case Caption:
O’Keefe Et Al V. Smoothie King Franchises, Inc. Et Al
Plaintiff State of Washington alleged that Novo Nordisk Inc. (“NNI”) caused physicians to prescribe its drug, NovoSeven®, to Washington hemophilia patients by: (1) promoting it “off-label” for prophylaxis and “high dose” use; (2) paying kickbacks to physicians; and (3) paying bribes to patients, all of which rendered claims to Medicare and Washington Medicaid false.
The State of Washington has been investigating this case for almost fifteen years, hoping to find evidence of unlawful conduct that allowed its Medicaid program to recoup money it paid for a medically necessary, life-saving drug.
The State of Washington filed a Daubert motion to exclude the testimony of Defendant NNI’s expert witness, Nicholas J. Janiga. Janiga’s report concluded that the compensation NNI paid to 12 healthcare providers between 2005 and 2016 was consistent with fair market value.
Washington challenged Janiga’s testimony because “his opinions are not premised on sufficient facts or data, nor are they the product of reliable principles and methods.”
For instance, Washington objected that Janiga analyzed only 12 physicians, and argued that he should have considered how many other consultants “in a position to prescribe NovoSeven” were paid by NNI. The Court, however, regarded this disagreement over the scope of discovery as merely a matter for cross-examination.
Business Valuation Expert Witness
Nicholas J. Janiga is an Accredited Senior Appraiser in Business Valuation by the American Society of Appraisers. He is currently the Managing Director of HealthCare Appraisers, Inc.
Janiga has extensive knowledge and experience in appraising healthcare business enterprises and medical professionals’ compensation. Moreover, he has extensive experience in analyzing the fair market value of healthcare transactions and arrangements involving the Anti-Kickback Statute (AKS).
First, Washington argued that Janiga incorrectly assumed that the physicians provided necessary bona fide services. It also claimed Janiga’s opinion omitted other benefits physicians received from NNI, such as expenses for meals, lodging, and travel, and assistance with writing and publishing medical scholarship.
NNI asked Janiga only to opine about whether the physicians’ compensation was fair market value. He was not asked to, and did not, opine on any other elements of the AKS’ “Safe Harbor.” Although the Court acknowledged that these were valid subjects for cross-examination, it held that they did not warrant disqualifying Janiga merely because of the limited scope of his study.
Washington also asserted that Janiga’s report did not account for the fact that NNI’s compensation structure is based on a physician’s “geographical sphere of influence.”
It argued that this compensation structure is improper because physicians may end up receiving work and compensation for the purpose of influencing other physicians. The Court viewed a physician’s influence in the medical community akin to stature and reputation. This is a valid factor in determining a physician’s compensation and affects the weight, not the admissibility, of Janiga’s testimony.
Finally, Washington argued that Janiga’s report did not mention that Craig Kessler, the Editor-in-Chief of the publication Haemophilia, received “revenue based compensation from that publication whose revenue was enhanced by [NNI’s] purchase of reprints.” Washington additionally contended that NNI directly paid Kessler for his advice on this case.
Since Kessler’s advice to NNI on this case pre-dates Washington’s allegations that NNI inappropriately paid Kessler, any compensation he received for his advice is not relevant to Janiga’s opinion that Kessler was compensated at fair market value.
Held
The Court denied Washington’s motion to exclude the testimony of Nicholas J. Janiga.
Key Takeaway:
Janiga has sufficient expertise and experience appraising healthcare enterprises and compensation arrangements. Basically, his knowledge, background, and opinions about whether NNI compensated the 12 physicians at fair market value satisfy Rule 702‘s requirement in that his testimony will assist the jury in understanding the evidence and determining facts in issue.
His testimony will be permitted because he is a qualified expert in the healthcare compensation appraisal through education, training, experience, knowledge, and skill, his report is based on sufficient facts or data, and his opinions are the product of the reliable application of principles and methods.
Please refer to the blogs previously published about this case:
This case involves a rear-end collision between Plaintiff Tyler Brown’s sedan and a sprinter van driven by Defendant Nikolay Muzyka.
The accident occurred during the early morning hours of July 29, 2021. Defendant Muzyka, who was driving in the far right lane, began to slow down as he saw lights from emergency vehicles ahead. As he was slowing down, Defendant moved over two lanes into the far left lane. Plaintiff Brown, who was driving in the far left lane, collided with Defendant causing both cars to turn facing oncoming traffic.
Brwon sued Muzyka for negligence and negligence per se. Brown also sued Aleksei Dulepin—the owner of the sprinter van—and Amload, LLC—Muzyka’s employer. Defendants retained accident reconstructionist, Andrew D. Irwin, as Defendants’ testifying expert. Plaintiff filed a motion to preclude Irwin from offering certain opinions at trial.
Accident Reconstruction Expert Witness
Andrew Damien Irwin is an Accident Reconstructionist with Aperture (formerly Scientific Analysis Inc). He uses his decades of experience to provide expert testimony, making use of aids such as accident site diagrams, maps, charts, and crime scene exhibits.
He holds a Bachelor of Science in Architectural Engineering from the University of Texas at Austin and has completed specialized study in accident reconstruction at Northwestern University and Texas A&M University.
Irwin is a member of multiple professional societies, including the National Association of Professional Accident Reconstruction Specialists (NAPARS), Society of Accident Reconstructionist (SOAR), Texas Association of Accident Reconstruction Specialists (TAARS), the American Society of Mechanical Engineers (ASME), and the Society of Automotive Engineers (SAE).
Plaintiff asked the Court to prohibit Irwin from offering two categories of opinions. First, Plaintiff argued that Irwin should not be allowed to give his opinions about Plaintiff’s reaction time, considering the visibility and conditions at the time of the collision. Second, Plaintiff asked the Court to preclude Irwin from offering his opinions about Section 545.157 of the Texas Transportation Code, known as Texas’s “Move Over or Slow Down” law.
Irwin’s Opinions about Visibility and Conditions at the Scene of the Accident are Admissible
Plaintiff Brown objected to Irwin’s opinions that at the time of the accident “visibility was good” based on an aerial video of the location of the collision taken during the day, roughly two years after the accident.
Brown argued that because this accident took place around one o’clock in the morning on a dark stretch of highway, Irwin’s opinions are incomplete, irrelevant, misleading, and will cause unfair prejudice if the opinions are based on an illustration of the accident scene that was taken during daylight hours.
Brown also argued that Irwin’s opinions that there was sufficient visibility for Plaintiff to see and react to the sprinter van’s taillights or flashers and avoid a collision are unsupported speculation and merely Irwin’s subjective belief because Irwin did not perform a looming threshold analysis.
Analysis
Plaintiff did not point the Court to any cases holding that the failure to use a looming threshold analysis renders an accident reconstructionist’s testimony unreliable. Defendants argued whether Irwin relied on some incorrect facts or should have examined additional or different data is a valid subject of cross-examination, but it did not render Irwin’s opinions inadmissible. The Court agreed with Defendants.
Irwin’s failure to perform a looming threshold analysis to account for the “dark-lighted” conditions at the time of the accident similarly concerned the weight of the evidence, not its admissibility. The fact that Irwin’s conclusions might be based on data or assumptions that are contracted by facts in the police report did not render Irwin’s conclusions inadmissible.
Irwin’s Opinions do not Constitute Impermissible Legal Conclusions
Plaintiff argued that Irwin offered incorrect opinions about Texas’s Move Over or Slow Down law, which impermissibly invaded the province of the judge and jury.
What Plaintiff failed to mention is that Plaintiff’s counsel asked Irwin whether Defendant Muzyka followed the Move Over or Slow Down law. In other words, Irwin did not comment on or opine about the law in his expert report.
While Irwin is not permitted to offer legal conclusions at trial, the Court held that the opinions contained in his expert report did not constitute impermissible legal conclusions.
Held
The Court therefore denied the Plaintiff’s motion to limit the opinion testimony of Defendant’s expert Andrew D. Irwin.
Key Takeaway:
The reliability of the data and facts underlying Irwin’s opinions concerned the weight of the evidence and is subject to cross-examination. In other words, it did not serve as a basis for excluding Irwin’s ultimate opinions.
Plaintiff may cross-examine Irwin about whether his failure to use a looming threshold analysis to determine Plaintiff’s perception at night or whether any of the factors he did not account for materially affect his opinions.
These factors concerned the weight of Irwin’s expert testimony, not its admissibility. The Court found that while Plaintiff may cross-examine Irwin as to these alleged deficiencies, Plaintiff has not established that Irwin’s opinions are unreliable and therefore inadmissible.
The Plaintiff, Glynn Simmons, was wrongfully imprisoned for nearly 49 years after a 1974 murder conviction and was exonerated in 2023. He filed a civil rights lawsuit seeking damages for the constitutional violations that led to his wrongful conviction and decades of incarceration.
As a result, Simmons sued the City of Edmond, the City of Oklahoma City, former Oklahoma City Police Detective Shobert, and the estate of former Edmond Police Detective Sergeant Anthony David Garrett (Garrett).
In other words, Plaintiff alleged that they suppressed exculpatory evidence and fabricated evidence, violating his Fourteenth Amendment rights.
To support his claims, he retained Dr. Shirley Saar-McPherson, Ph.D., a clinical psychologist, to conduct a comprehensive psychological evaluation to assess his potential mental health diagnoses and their causes.
City contended that Saar’s opinion is unreliable because she only formed this opinion for the purposes of testifying and did not treat the evaluation as carefully as she would have in her practice outside of paid consulting.
Psychology Expert Witness
Shirley Saar-McPherson is a a clinical psychologist with over two decades of experience. Basically, she earned her Ph.D. in clinical psychology with a concentration in forensic psychology, and has numerous publications in her field.
The City argued that Saar’s opinion was inherently unreliable because it was prepared solely for litigation and lacked the same level of care and rigor she would typically apply in her regular clinical practice. According to the City, the evaluation was not conducted under the same professional standards expected outside the context of paid expert testimony.
The City further asserted that the limited basis for her opinion, consisting of just two Zoom interviews and remote testing, rendered her conclusions methodologically weak and scientifically unsound.
After reviewing the submissions from both parties, the Court found that Saar’s testimony satisfied the requirements of Federal Rule of Evidence 702, which governs the admissibility of expert testimony. The Court concluded that her opinion was grounded in sufficient facts and data and was derived using reliable principles and methods appropriate to her field.
Also, the Court acknowledged that the City’s criticisms about the limited interaction and remote testing methodology might raise valid concerns regarding the thoroughness of Saar’s evaluation. However, it held that such concerns relate to the weight of the testimony rather than its admissibility. These are matters best explored through cross-examination, not exclusion.
Held
The Court denied the City’s motion to exclude the testimony of Plaintiff’s expert witness Shirley Saar-McPherson.
Key Takeaway:
Despite being based upon two zoom meetings and remote testing, the Court found that Saar’s opinion was based on sufficient facts and data and is the product of reliable principles and methods.
Case Details:
Case Caption:
Simmons v. City of Edmond
Docket Number:
5:24cv97
Court Name:
United States District Court for the Western District of Oklahoma
Meadowbrook Shopping Plaza, LLC purchased a building at 3895 Metro Drive (“the Building”) in 1995. Around 2018, Mr. Khaldoun Abaji approached Meadowbrook about utilizing the Building for his business, a store called Kids Avenue. Abaji and Meadowbrook came to an oral agreement where Abaji paid Meadowbrook $800 a month for the space.
The parties agreed that Abaji stored his merchandise inside the Building but did not re-open his storefront before the events giving rise to this lawsuit. Additionally, the parties seemed to agree that the Building did not have electricity or gas throughout his tenancy. Less clear is whether Abaji could, or planned to, operate his storefront in the Building.
The events giving rise to this lawsuit began on December 13, 2021, when the Building was vandalized. Nationwide was Meadowbrook’s insurer at this time, so Meadowbrook submitted a claim for the damage. Nationwide determined that the damage totaled $132,586; however, it denied Meadowbrook’s claim because, in its view, the vacancy exclusion applied.
The second event precipitating the lawsuit occurred on July 1, 2023, when the Building caught on fire. There was no indication that the sprinkler system was on when the Jackson Fire Department arrived.
Again, Meadowbrook filed a claim with Nationwide. And, again, Nationwide denied the claim. This time, Nationwide explained that denial was appropriate because the Building did not maintain an automatic sprinkler system in complete working order at the time of the fire. Meadowbrook then filed this suit against Nationwide for denying its claims. Its causes of action include breach of contract and bad faith denial of insurance benefits.
Richard Jones has over 23 years of experience in the field of investigations for both the public and the private sectors. He also has prior service and training with local fire districts and the Louisiana Office of State Fire Marshal, specializing in the field of fire and explosion investigations.
Jones has completed numerous courses related to fire and explosion investigations sponsored by the National Fire Academy, Maine State Police, the International Association of Arson Investigators, and other local organizations. He earned a degree in Fire Science from Columbia Southern University and is an experienced lecturer on fire and explosion investigations.
Adam Bomar is a Nationwide fire loss investigator. He is currently a Fire Lieutenant and Deputy Fire Marshall with the Mountain Brook Fire Department in Mountain Brook, Alabama. He is also currently the Operations Manager and Fire Investigator with Crain & Associates, Inc. in Birmingham, Alabama.
Richard Jones, who has been designated as an expert in forensic fire investigations, visited the scene after the fire. He noticed that the “post indicator valve” which supplied water to the sprinkler system was in the “shut” position. Adam Bomar, a Nationwide fire loss investigator, also visited the scene and noticed rust on the wrench that operated the post indicator valve. This led Bomar to opine that the valve had not been turned on for an extended period.
Meadowbrook did not challenge the qualifications of either Jones or Bomar. Instead, it argued that parts of their testimony should be excluded as either irrelevant or unreliable
Meadowbrook first argued that Jones’ testimony should be struck as a legal conclusion. It then asserted that the International Existing Building Code, which Jones relied on in forming his opinion, is irrelevant because the insurance policy at the heart of this case did not require Meadowbrook to follow this Code. Finally, Meadowbrook maintained that Bomar should be excluded from testifying to statements he heard from an unnamed Jackson Fire Department officer because such statements are unreliable hearsay.
A. The Court Denies the Motion to Exclude Jones’ Entire Testimony
The Court disagreed that Jones’ testimony “is nothing more than a legal conclusion” which is why his entire testimony will not be struck. Meadowbrook is free to object at trial should his opinions veer outside the scope of expert testimony.
B. Jones May Testify to the International Existing Building Code
Meadowbrook challenged the International Existing Building Code referenced in Jones’s report.
The City of Jackson adopted the 2018 edition of this Code in 2020. Meadowbrook maintained that any testimony related to this Code should be excluded because Nationwide’s policy did not require it to follow the Code. Nationwide responded that Meadowbrook’s disagreement relates to the weight of Jones’s testimony, but not its admissibility. The Court agreed.
According to Jones, the City of Jackson adopted the Code, which requires certain changes to the use of a structure be submitted for approval. Meadowbrook has not yet rebutted this premise, which will be for the jury to decide. Meadowbrook is free to cross-examine Jones on his report and his assertions relating to the Code. Ultimately, the jury is free to decide what weight—if any—to give Jones’s testimony. The Court denied Meadowbrook’s motion on this ground.
C. Bomar May Not Rely Upon Statements from an Unidentified Officer
Finally, Meadowbrook sought to exclude the purported assertion by an unnamed Jackson Fire Department officer that it is not the Department’s policy to shut off the post indicator valve at the scene of a fire. It asserted that any opinion and testimony made in reliance on this statement should be excluded because it is wholly unreliable.
Nationwide responded that Bomar, as an expert, may rely on hearsay in forming the basis of his opinion so long as other experts in his field would do so.
The parties agreed that Bomar did not record the name of the Jackson Fire Department officer who allegedly made this statement. Neither party has learned this officer’s name through the course of the litigation.
The statement made by the unidentified Jackson Fire Department officer, if offered to prove that the Department would not have turned the post indicator valve off, is textbook hearsay. Nationwide has failed to show that some exception applies to this rank hearsay. The Court held that incorporating the testimony into Bomar’s report does not transform the statement to one which the jury can receive.
Held
The Court granted in part and denied in part Meadowbrook’s motion in limine to exclude certain expert testimony by Richard W. Jones, Jr. and Adam Bomar.
Key Takeaway:
Question relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s consideration.
Daubert’s “gatekeeping function” requires the Court to examine the relevancy and reliability of all proffered expert testimony.
Case Details:
Case Caption:
Meadowbrook Shopping Plaza, Llc V. Nationwide Assurance Company
Docket Number:
3:23cv3093
Court:
United States District Court, Mississippi Southern
A district judge in Texas admitted the testimony of an industrial engineering and workplace ergonomics expert in order to get a better sense of the lifting activities performed by the Plaintiff on the date of her alleged injury.
Plaintiff (“Yoakum”) filed this personal injury lawsuit against Tyson after an injury she allegedly sustained while working the night shift at the Tyson Foods beef processing plant in Amarillo, Texas. Yoakum’s alleged injuries stemmed from her lifting a 97-pound box of meat off a conveyor belt to place it onto a pallet. When Yoakum lifted the box to place it onto the pallet, she alleged that she felt a pop in her back that was accompanied by pain.
On October 20, 2023, Yoakum served on Tyson the expert reports of her retained experts, which included Adam W. Pickens, P.h.D—whom she retained to opine on lifting safety and the risks associated with her lifting the 97-pound box. Pickens opined that Yoakum lifting a 97-pound box created a high risk of injury. His opinion relied on two tools that are not adopted by any industry, including the meatpacking industry: (1) the NIOSH Lifting Equation (“the Lifting Equation”) and (2) the Liberty Mutual Psychophysical Tables (“the Liberty Mutual Tables”).
Industrial Engineering Expert Witness
Adam W. Pickens is an expert in industrial engineering and workplace ergonomics. He holds a Bachelor’s degree in Biomedical Sciences and a Master’s of Public Health in Environmental and Occupational Health from Texas A&M University. He holds a Ph.D. in Industrial Engineering from Texas Tech University in Lubbock, Texas. Pickens worked as a graduate researcher and in industry for Alliant Techsystems. He was a NIOSH trainee and served as a scientific review expert for them for over 10 years. Since 2008 he has been on the faculty of Texas A&M University in the School of Public Health.
Tyson’s motion to exclude Pickens is focused on three arguments. First, Tyson argued that Pickens’ use of the Lifting Equation is inadequate and unreliable because he did not input values and “actually run” the Lifting Equation. Second, Tyson argued that neither the Lifting Equation, nor the Liberty Mutual Tables have been accepted in the meatpacking industry—or any industry—as the industry standard. Third, Tyson argued that Pickens’ opinion was unnecessary to assist the jury in understanding the evidence or answering any fact questions in the case because he failed to address key facts and circumstances of the case.
A. Pickens’ testimony is based upon sufficient facts and data
The Court observed that Pickens reviewed relevant filings on the docket, Yoakum’s employment files, Tyson’s “Safe Lifting Training” and “Lifting Do’s and Don’ts”, the depositions of Yoakum and her coworkers, and Pickens was provided with the weight of the box Yoakum was lifting when she allegedly injured her back.
He relied on two foundational works/tools: the NIOSH Lifting Equation—which has been accepted as reliable by several federal courts—and the Liberty Mutual Psychophysical Tables.
The Court noted Pickens’ substantial experience as an expert in workplace ergonomics and his experience as a NIOSH Trainee, for which he has served as a scientific review expert for over 10 years. Pickens also relied upon scientific literature and industry materials to use his expertise to form an opinion on Yoakum’s lifting task in this case.
The Court found the facts and data Pickens relied upon to be sufficient and of the type reasonably relied upon by experts in the field of biomechanics, ergonomics, and workplace safety.
B. Pickens’ testimony is the product of reliable principles and methods, and Pickens applied those principles and methods reliably to the facts of the case
1. NIOSH Lifting Equation
Pickens’ testimony relied in part on the NIOSH Lifting Equation. The Lifting Equation is a tool used to estimate safe lifting limits for the average adult in the workplace. Specifically, the Lifting Equation was developed by NIOSH to quantify injury risks associated with manual lifting. The Lifting Equation consists of a load constant (51 pounds) that is then multiplied by six variables that only serve to decrease the load constant. In other words, regardless of the values input into the variables, the highest output the Lifting Equation will ever produce is 51 pounds.
The Court found that the Daubert factors suggested that the Lifting Equation is sufficiently reliable to form the basis of expert testimony.
As to the first factor, the NIOSH Lifting Equation can be and has been tested. Likewise, the Lifting Equation has been subjected to peer review and publication; thus, the second factor is met. As to the fourth factor, the NIOSH Lifting Equation appears to be accepted in the field of ergonomics and workplace safety. Pickens acknowledged that the NIOSH Lifting Equation has not been explicitly adopted by any industries, including the meatpacking industry, but that it is applicable to the work force at large. The fifth factor is also satisfied as there is no evidence whatsoever that the NIOSH Lifting Equation was developed expressly for litigation. As to the sixth factor, Pickens did not unjustifiably extrapolate from an accepted premise to an unfounded conclusion. Finally, the field of ergonomics is known to reach reliable results.
In sum, the enumerated Daubert factors are largely applicable in this situation and weigh in favor of admitting Pickens’ expert testimony.
2. Liberty Mutual Psychophysical Tables
Not dissimilar from the Lifting Equation, the Liberty Mutual Tables are a tool that Pickens used that led him to his conclusion that the box Yoakum lifted in this case exceeded the safe limit under all circumstances. According to Pickens, the Liberty Mutual Tables indicated that no female can safely lift a 97-pound box during a workday without risk of injury. Like the 51-pound limit in the Lifting Equation, the Liberty Mutual Tables established that a woman should never, under any circumstances, lift more than 83.6 pounds during a workday without risk of injury.
The Liberty Mutual Tables, developed by Liberty Mutual Insurance, covered tasks such as lifting, lowering, pushing, or pulling. According to Pickens and his references, the Liberty Mutual Tables are the product of more than 40 years of research on lifting, lowering, pushing, pulling, and carrying and have been subjected to peer review and publication. Accordingly, the Court found that the Liberty Mutual Tables are reliable in and of themselves.
Likewise, Pickens reliably applied the facts of this case to the Liberty Mutual Tables to form his opinions. As noted, he reviewed the litigation file, relevant documents, and was provided with the fact that the box Yoakum lifted when she allegedly injured her back was 97 pounds. The Court held that Pickens reliably applied the facts of this case to the Liberty Mutual Tables to form his opinion that Yoakum could not have lifted the 97-pound box at issue without facing a risk of injury.
C. Pickens’ opinions are relevant
The relevance inquiry requires the Court to consider whether the opinions of Pickens will assist the jury in understanding the evidence or answering fact questions.
Liability in this case is dependent upon a finding of negligence; therefore, the issue before the Court is whether Pickens’ testimony will aid the jury in determining negligence. The Court found that Pickens’ testimony is sufficiently relevant and will assist the jury in understanding the lifting activities performed by Yoakum on the date of her alleged injury. In sum, Pickens’ testimony may inform the determination of whether Tyson was negligent.
D. Tyson’s criticisms of Pickens’ opinions are topics for cross-examination, not a basis for exclusion
Tyson took issue with numerous aspects of Pickens’ testimony. But the aspect that Tyson focused on most is that Pickens did not input values into the Lifting Equation to calculate a Lifting Index.
First, when asked why he “did not run” the Lifting Equation, Pickens testified that he did not have the information to input values into the variables and calculate a Lifting Index. Ultimately, Pickens concluded it is irrelevant that he did not input values into the equation and calculate a Lifting Index because the maximum weight the Lifting Equation called for without a risk of injury is 51 pounds. And in this instance, Yoakum allegedly lifted a 97-pound box, so there was no need for Pickens to run the equation. This is because no matter what values he put into the Lifting Equation, the highest possible output value would be 51 pounds; thus, Pickens’ conclusion would remain the same.
The Court found that the best mechanism for Tyson to attack Pickens’ testimony was through cross-examination, not exclusion.
E. The Lifting Equation and the Liberty Mutual Tables cannot establish the standard of care; however, the tools will assist the jury in understanding the lifting activities performed by Yoakum on the date of her alleged injury
The Lifting Equation and the Liberty Mutual Tables are not adopted by any industry as industry standards. As such, the Court agrees with Tyson that neither the Lifting Equation nor the Liberty Mutual Tables can take the place of the applicable standard of care.
Because neither the Lifting Equation nor the Liberty Mutual Tables have been accepted by any industry, including the meatpacking industry, Yoakum cannot rely on either tool to establish the standard of care in this case. And the Court will refuse to allow testimony from Pickens to that effect. However, given his expertise, the tools he used, and his reliable application of the facts of this case, the Court permitted Pickens to testify that Yoakum faced a risk of injury when she was asked to manually lift the 97-pound box.
The Court held that Pickens’ testimony may rely on his application of the facts of this case to both tools he chose to utilize, but his testimony cannot establish Tyson breached its standard of care based solely on Yoakum having lifted a 97-pound box.
Held
The Court found the facts and data Pickens relied upon to be sufficient and of the type reasonably relied upon by experts in the field of biomechanics, ergonomics, and workplace safety. Moreover, the Court was confident that any issues Tyson had with Pickens’ methodology and opinions could be addressed on cross-examination.
The Court denied Tyson’s motion to exclude the testimony of Adam W. Pickens.
Key Takeaways:
Pickens reliably applied the facts of this case to the Liberty Mutual Tables to form his opinion that Yoakum could not have lifted the 97-pound box at issue without facing a risk of injury. Pickens reviewed the litigation file, relevant documents, and was provided with the fact that the box Yoakum lifted when she allegedly injured her back was 97 pounds.
Pickens’ testimony satisfied the relevance inquiry under Daubert because it assisted the jury in understanding the lifting activities performed by Yoakum on the date of her alleged injury.
Considering there are no certainties in science, the Court decided that should Tyson wish to challenge any shortcomings in Pickens’ methodology or his application of the facts to either the Lifting Equation or the Liberty Mutual Tables, it may do so through cross-examination.
