Expert Witness Profiler

Tag: Damages

  • Finance Expert Allowed to Opine on Damages and Disgorgement

    Finance Expert Allowed to Opine on Damages and Disgorgement

    Through various entities (hereinafter, the “Tarter Companies”), the Tarter family operates a large animal management and farm gate manufacturing business. Principally at issue in this case are the business transactions between Plaintiff C-Ville Fabricating, Inc. (doing business as Tarter Industries), and Defendant Hong Kong QMC Industry Company, LTD (“QMC”).

    Defendant Josh Tarter is a shareholder of Tarter Industries. Plaintiff contends that at all relevant times, Josh held himself out as a high-ranking executive of the Tarter Companies and oversaw their operation. Plaintiff also alleged that Josh’s right-hand man was fellow Defendant Thomas Lewis Gregory.

    Moreover, Plaintiff sued Josh Tarter, Thomas Gregory, and QMC because of their alleged undisclosed interest in QMC. The scheme allegedly resulted in the Tarter Companies wiring approximately $74,857,122.80 to QMC and its affiliates. Plaintiff asserted that during this period, Josh and Thomas hid their interests in QMC – despite a duty to reveal that information – and that Josh affirmatively lied about such interests on two occasions.

    The Court has noted that the “thrust” of the Plaintiff’s allegations is that Josh and Thomas “used their senior positions with the Tarter Companies to ensure that components and parts were sourced from QMC, while siphoning Tarter funds to themselves through inflated rates for the purchased components” from QMC. Plaintiff alleged that they were damaged because they overpaid QMC for the components.

    On June 5, 2019, the Court ordered the Clerk of Court to enter default against QMC. QMC has never participated in the litigation. Despite Josh and Thomas’ majority ownership interest in QMC, none of its financial records were disclosed during discovery.

    Because Plaintiff was unable to obtain any of QMC’s financial records, they retained Dr. Christopher Clifford.

    Motion to Exclude

    Clifford conducted a financial analysis of QMC’s profits. The expert report (“Clifford Report”) calculates the difference between the amount the Tarter Companies actually paid to QMC and price quotes of the same products from a Chinese business called LongLife.

    Clifford’s calculations were derived from an Excel spreadsheet detailing 7,094 purchases made by Tarter Industries from QMC between 2010 and 2017 and an Excel spreadsheet detailing 5,885 price quotes from LongLife on parts previously purchased by Tarter Industries from QMC. Clifford then estimated the economic damages by calculating QMC’s markup as the difference between the price charged by QMC and that quoted by LongLife. The average markup of the 5,885 price quotes was 27.45%. Clifford then assumed an average markup of 27.45% for the 1,210 purchases that did not have a direct quote from LongLife. Clifford aggregated the markups to determine the markup paid on an annual basis and compounded the result to present value at 7.05%. The Clifford Report concluded that the total damages suffered by the Plaintiff was approximately $24,162,158. The Defendants sought to exclude the Clifford Report on numerous grounds.

    Finance Expert Witness

    Dr. Christopher Clifford holds a Ph.D. in finance from Arizona State University. His research interests focuses on non-banking intermediaries such as financial advisors, mutual funds, and hedge funds. Clifford’s work has been mentioned in the Financial Times, The Economist, and the Wall Street Journal. His representative papers have been published at the Review of Financial Studies, Journal of Financial Economics, and the Journal of Financial and Quantitative Analysis.

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

    Discussion by the Court

    A. The Clifford Report Relies on a Valid Comparison

    Defendants argued that the Clifford Report should be excluded because it erroneously assumed that the QMC payments and the LongLife Quotes are comparable.

    Because the Plaintiff is unable to view QMC’s financial documents, some way of calculating its profits is necessary. Although Defendants assert that the payments were an apples-to-oranges comparison to the price quotes, the evidence shows otherwise. In fact, the comparisons, minus the obvious shipping costs discrepancy, are very similar. Most parts the Tarter Companies ordered from QMC had an exact comparison with LongLife.

    This is because LongLife is in the same industry as QMC, and, in fact, was QMC’s supplier. Contrary to Defendant’s argument that the comparison is “unhelpful and misleading,” it is a reliable way determine QMC’s profits since its records are unavailable. Allowing this report will not confuse the jury, and any discrepancy in the Clifford Report is properly dealt with by vigorous cross examination.

    Clifford has testified that his analysis is standard in the finance community and can be found in “every finance textbook, in any corporate finance or
    valuation-based textbook at the undergraduate or graduate level.”

    B. The Clifford Report has a Sufficient Basis for Determining the Plaintiff’s Economic Damages

    Next, Defendants take issue with the fact that the Clifford Report failed to allocate damages to Tarter Industries individually.

    Defendants argued that the Clifford Report aggregates damages amongst all four Tarter Companies, which is irrelevant and entirely unhelpful, since the only remaining Plaintiff is Tarter Industries.

    While parts of the Clifford Report reference economic damages suffered by the “Plaintiffs,” this is due to the fact that the report was created at the time when the other three Tarter Companies were still members to the lawsuit. However, the Clifford Report bases its calculations “solely” on the sales between Tarter Industries and QMC.

    The total damages figure is based off 7,094 orders, all of which were purchased by Tarter Industries. This makes sense given that Tarter Industries “is responsible for the manufacture and purchase of component parts . . .” The fact that the Clifford Report’s conclusion says “Plaintiffs” instead of “Plaintiff” is immaterial, because the remaining Plaintiff is the entity whose purchases the calculations were based off.

    C. The Clifford Report Satisfies Rules 26(a)(2)(B) and 37(c)(1)

    Defendants argued that the Clifford Report should be stricken because the Report did not include information about Clifford’s testimonial experience over the last four years and on his compensation.

    Each of those are required to be disclosed during discovery. The drastic sanction of striking the Clifford Report is not warranted because the nondisclosure was harmless. Plaintiff states that the Clifford Report did not mention Clifford’s testimonial experience over the past four years because he has none. Additionally, the Plaintiffs indicated that Clifford’s rate is $400 per hour. Because the error was harmless, the Court will not strike the Clifford Report on these grounds.

    D. Additional Arguments in Defendants’ Supplemental Briefing

    Defendants submitted five new arguments in their supplemental briefing. The Court will address each in turn.

    i. Damages and disgorgement

    Defendants argued that Clifford’s model of “economic damage” is not really a measure of damage to the Plaintiff, but rather a measure of the amount Defendants profited from marking up QMC prices.

    Plaintiff has given no indication that it seeks to recover QMC’s profits twice over, and any attempt to do so would not be permitted. Rather, the Clifford Report is merely a way to quantify the harm allegedly caused by Defendants. If Plaintiff was to prevail on the merits of its claims, it would be entitled to recover profits earned by QMC.

    Plaintiff’s damages are the Defendants’ profits, because the extra price paid to QMC would otherwise be money it saved.

    Even if this distinction mattered, the Plaintiff would still have to prove the amount of revenue the Defendants earned to be entitled to disgorgement. Because they do not have access to QMC’s financial records, the Clifford Report helps fill in the missing pieces.

    Further, for purposes of a motion to exclude, the Court’s gatekeeping function is limited to the considerations in Rule 702. The Court has already determined that Clifford’s report satisfies Rule 702 and that his testimony will help assist the jury. Defendants’ attempt to distinguish the remedies of damages and disgorgement did not alter the Court’s Rule 702 determination.

    ii. The Clifford Report is not an adoption of Plaintiff’s lay opinion, nor is it basic math

    Defendants contended that the Clifford Report is not an expert report at all, but rather Plaintiff’s own position clothed in expert garb. Defendants argued that Clifford “blindly accepted that the LongLife quotes were comparable to the QMC prices” and that he conducted basic math to arrive at his opinion. This, Defendants argued, amounts to a wholesale adoption of Plaintiff’s position.

    To determine QMC’s profits, Clifford necessarily had to reference the Plaintiff’s purchase records. Using such records to calculate QMC’s profits is not a wholesale adoption of Plaintiff’s position.

    Additionally, the Clifford Report is more than basic math. The Clifford Report analyzed 7,094 purchases over a seven-year span. It then aggregated QMC’s markups on an annual basis and compounded the result to present value at a rate of 7.05%.

    Additionally, Clifford based his calculations off specific data that is best understood by a specialist in the finance industry.

    iii. The Clifford Report based its calculation on gross profits

    Defendants argued that Plaintiff’s reliance on gross profits is improper; that the correct measure of damages should be net profits. Even if Defendants are correct, the Court can resolve this issue with specific jury instructions, avoiding the need to take the harsher path of excluding an expert. Additionally, Clifford’s figures will be subject to scrutiny on cross examination and defense counsel is free to question all aspects of his financial calculations. The Court will not exclude the Clifford Report on that basis alone.

    iv. Federal Rule of Evidence 403

    Defendants’ final argument is that the Clifford Report should be excluded because it will mislead the jury. To support this claim, Defendants repeat its argument about economic damages and disgorgement. The Court has already resolved that argument and will not address it further. Because the probative value of the Clifford Report is not substantially outweighed by its likelihood of misleading the jury, it will not be excluded.

    Held

    The Court denied the Defendants’ motion to exclude the testimony of Christopher Clifford.

    Key Takeaway

    The Clifford Report will help assist the jury in understanding the financial impact of the transactions between Plaintiff and QMC. Plaintiff has established that Clifford has specialized knowledge in the financial industry; based his Report on thousands of actual purchases over a seven year period; used principles taught in “every finance textbook, in any corporate finance or valuation-based textbook at the undergraduate or graduate level;” and applied present value calculations to all 7,094 purchases. Because Plaintiff has proven by a preponderance of evidence that the requirements of Fed. R. Evid. 702 have been met, the Clifford Report will not be excluded.

    Case Details:

    Case Caption:C-Ville Fabricating V. Tarter
    Docket Number:5:18cv379
    Court Name:United States District Court, Kentucky Eastern
    Order Date:July 20, 2026
  • Exercise Expert Allowed to Opine on the Quality of NAFTA’s Services

    Exercise Expert Allowed to Opine on the Quality of NAFTA’s Services

    Over three decades ago, Plaintiff Sherry Morton founded a health and fitness company called Millennium Health & Fitness, Inc. On November 1, 2023, Morton and Defendant BCAP GDI 1, Inc. (“Defendant” or “BCAP”) entered into a Stock Purchase Agreement, whereby Morton agreed to sell
    Millennium to BCAP.

    The same day, Plaintiff National Aerobics & Fitness Trainers Association (“NAFTA”) and BCAP entered into a separate agreement (“NAFTA Agreement”), whereby BCAP agreed to pay NAFTA $100,000 per year for at least 750 health and fitness trainings and certifications per year up until October 31, 2028. Per the agreement, NAFTA was obligated to
    perform its services in accordance with the “highest industry standards.”

    On December 31, 2024, Plaintiffs filed the present action, accusing BCAP of breaching the Stock Purchase Agreement by retaining a portion of the purchase price as an “Indemnity Holdback.” Plaintiffs also accused BCAP of improperly terminating the NAFTA Agreement after one year, alleging that BCAP “manufactured false allegations of ‘cause’ for termination and . . . unilaterally declared the NAFTA Agreement to have been terminated.”

    According to BCAP, Morton had confidential Millenium files downloaded to an external hard drive and deleted from Millennium’s system, thus depriving Millennium of information needed to successfully bid on three government contracts pertaining to health and fitness services for the Federal Bureau of Investigation (“FBI”), U.S. Immigration and Customs Enforcement (“ICE”) and the U.S. Marine Corps (“USMC”).

    Plaintiffs sought to exclude all testimony of Defendant’s industry expert, Anthony A. Abbott, and Defendant’s damages expert, Kellie M. Fedkenheuer. BCAP also sought to exclude certain testimony relating to causation and liability from Plaintiffs’ rebuttal damages expert, Julia Alcarez.

    Exercise Expert Witness

    Anthony Almon Abbott holds a doctorate in exercise science and physiology and has over forty-five years of experience as a physical fitness instructor, personal trainer and facility manager.

    Among other accolades, Abbott developed the first nationally accredited personal trainer certification with the National Strength & Conditioning Association.

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

    Accounting Expert Witness

    Kellie Mathis Fedkenheuer is a Certified Public Accountant with over fifteen years of forensic accounting experience.

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

    Julia Alcarez is a Certified Public Accountant with over fifteen years of experience working on government contract and forensic accounting matters.

    Discover more cases with Julia Alcarez as an expert witness by ordering her comprehensive Expert Witness Profile report.

    Discussion by the Court

    A. Plaintiffs’ Motion to Exclude Testimony of Anthony Abbott

    Highlighting several allegedly insufficient aspects of NAFTA’s training programs (including lack of accreditation and short timeframe), Abbott ultimately opined that NAFTA failed to provide services according to the “highest industry standards” as required by the parties’ agreement.

    Plaintiffs argued that Abbott’s testimony should be excluded as unreliable because he relied purely on improper ipse dixit in rendering his opinions on the quality of NAFTA’s trainings and certifications.

    In BCAP’s view, NAFTA is a “pay-to-play, flight-by-night” fictional association “created by Plaintiff Sherry Morton,” and Abbott is allowed to rely on his experience in rendering his opinions. BCAP also insisted that Abbott sufficiently researched NAFTA’s training programs to render a reliable and informed opinion as to their quality. The Court ultimately agreed with BCAP that Abbott’s proffered testimony met the reliability requirement.

    Abbott’s opinions are more than ipse dixit; he appears to have sufficiently investigated NAFTA’s training programs to be able to render an opinion as to the quality of those programs. He reviewed NAFTA advertisements as well as the accreditation status, length of time entailed, course materials and in-person requirements of NAFTA certification courses.

    That Abbott did not take or review a NAFTA certification exam does not mean that his opinions are based purely on ipse dixit.

    Because Abbott’s opinion on the quality of NAFTA’s services is supported by sufficiently “good grounds” to be reliable, the Court denied Plaintiffs’ motion to exclude Abbott’s testimony.

    B. Plaintiffs’ Motion to Exclude Testimony of Kellie Fedkenheuer

    In her opening report, Fedkenheuer indicated that she was not offering an opinion on whether Millennium would have obtained the FBI, ICE and USMC government contracts had Morton not allegedly deleted the confidential Millenium files.

    To estimate lost profits damages for the three lost government contracts, Fedkenheuer identified “three ongoing contracts in 2024 and 2025 that had a size and/or scope that was similar to those of the FBI, ICE and USMC awards.” And for future lost profits damages, she applied a discount rate of 9% based, at least in part, on Delaware’s usury statute.

    1. Discount Rate Analysis

    Plaintiffs vehemently disputed the propriety of the 9% discount rate Fedkenheuer used for future lost profits. In Plaintiffs’ view, this discount rate should be excluded as unreliable because Fedkenheuer arbitrarily selected the rate based on Delaware’s usury statute, which provides that pre-judgment interest will be “5% over the Federal Reserve discount rate.”

    The Court agreed with BCAP that Fedkenheuer’s discount rate analysis is based on sufficiently “good grounds” to meet the reliability requirement.

    Fedkenheuer considered Millenium’s Weighted Average Cost of Capital (WACC) and Weighted Average Cost of Debt (WACD) in determining that the 9% rate was appropriate.

    For the same reasons, the Court is also unpersuaded that Fedkenheuer “applied no methodology” in selecting the rate and acted merely as a mouthpiece for Defendant’s attorneys.

    2. Gross Profit Margin

    Plaintiffs next argued that Fedkenheuer’s gross profit margin determination should be excluded as unreliable because, in selecting comparable contracts to the lost bids, she purportedly relied solely on her conversations with BCAP Vice President and Millennium Operating Partner Jeffrey Eagan.

    However, Fedkenheuer’s methodology in selecting comparable contracts was sufficiently reliable and did not, as Plaintiffs contend, “blindly adhere” to data provided by Eagan “absent any sort of independent investigation.”

    In other words, Fedkenheuer did more than merely speak with Eagan to identify comparable contracts. She analyzed information regarding Millennium’s historical contracts (e.g., revenue) to identify contracts that she deemed comparable to the lost bids.

    3. Factual Narrative Underlying Counterclaims IV and IX

    BCAP filed its Counterclaims, alleging (among other things) that Morton breached the Stock Purchase Agreement by failing to deliver (and stealing) Millennium intellectual property (Counterclaim IV) and by failing to disclose a liability pertaining to Millennium and the U.S. Environmental Protection Agency (“EPA”) (Counterclaim IX).

    Plaintiffs argued that Fedkenheuer’s factual narratives of Counterclaims IV and IX are an inappropriate rehashing of BCAP’s theory of the case that will not assist the trier of fact.

    If this case were proceeding to a jury trial, the Court would likely agree that several statements in Fedkenheuer’s expert report venture “into areas in which the jury needs no aid or illumination.”

    That being said, the concerns underlying Federal Rule of Evidence 403, such as confusion and unfair prejudice, are minimal where, as here, the case proceeds via bench trial. Therefore, the Court will not exclude Fedkenheuer’s factual narratives underlying Counterclaims IV and IX because they are limited and provide context to her opinions.

    4. Calculation of Damages Underlying Counterclaim IX

    Finally, Plaintiffs argued that Fedkenheuer’s calculation of damages underlying Counterclaim IX amounts to “mere arithmetic” and is therefore “outside the remit of an economic damages expert and would not assist the trier of fact.”

    Fedkenheuer’s damages calculations with respect to Counterclaim IX consist of merely adding collections received from EPA personnel to costs allegedly incurred by BCAP as a result. And BCAP did not seriously dispute that Fedkenheuer’s calculation of damages for Counterclaim IX constitutes “mere arithmetic.” The Court, as fact finder, is “more than capable of adding the specific costs associated with” the alleged damages with respect to Counterclaim IX “that will be offered by Plaintiffs through their fact witnesses.”

    But considering this is a bench trial, the testimony will be conditionally admitted subject to a later Rule 702 determination by the trial judge.

    C. Defendant’s Motion to Exclude Testimony of Julia Alcarez

    1. Qualification

    BCAP first argued that Alcarez is not qualified to opine on causation with respect to Counterclaim IV.

    BCAP took great pains to highlight her apparent lack of experience serving as a contracting officer. But BCAP overlooked the fact that Alcarez has worked on government procurement matters for sixteen years.

    Indeed, according to her CV, she has experience with “preparation, review, analysis, and testimony related to claims submitted by contractors to US
    Government agencies.”

    The Court is ultimately unpersuaded that Alcarez’s lack of experience serving as a contracting officer warrants exclusion of her causation opinions.

    2. Legal Conclusions

    BCAP next argued that Alcarez’s causation opinions should be excluded because they constitute inadmissible legal conclusions regarding the Federal Acquisition Regulations (“FAR”).

    However, Alcarez provided a detailed summary and interpretation of Federal Acquisition Regulations. This summary of the relevant regulations and analysis as to their meaning appears to constitute impermissible legal conclusions.

    However, the case proceeds via bench trial. The presiding judge is more than capable of parsing the causation opinions offered at trial and excluding any improper legal opinions as appropriate.

    3. Improper Rebuttal Testimony

    BCAP also argued that Alcarez’s causation opinions should be excluded as improper rebuttal testimony that exceeds the scope of BCAP’s opening reports.

    This argument is one that belongs in a motion to strike under Rule 37 – not in a Daubert motion. The Court will not address issues regarding expert testimony that should have been raised elsewhere.

      Held

      The Court denied the Plaintiffs’ motions to exclude the testimony of Anthony Abbott and Kellie Fedkenheuer as well as the Defendant’s motion to exclude certain testimony of Julia Alcarez.

      Key Takeaway

      Expert testimony on issues of law are not admissible for the purposes of proving that the government’s interpretation of the Cost Accounting Standards (‘CAS’) and Federal Acquisition Regulations (‘FAR’) are not correct. But again, this case is proceeding to a bench trial. The presiding judge is more than capable of parsing the causation opinions offered at trial and excluding any improper legal opinions as appropriate.

      Case Details:

      Case Caption: Morton V. Bcap Gdi 1, Inc.
      Docket Number: 1:24cv1432
      Court Name: United States District Court for the District of Delaware
      Order Date: July 16, 2026
    1. Law and Legal Expert Was Not Allowed to Opine on Alleged Obligations

      Law and Legal Expert Was Not Allowed to Opine on Alleged Obligations

      Plaintiffs are alleged owners of real property containing natural gas who have no leases with EQT covering their interests. Claiming that EQT has produced gas from Plaintiffs’ properties but not paid them for it, Plaintiffs brought this putative class action seeking to recover the alleged non-payment on behalf of all allegedly unpaid tenants-in-common who presently own property with a co-tenant who has a lease with EQT. Their complaint sought damages for the alleged non-payment on the non-contractual causes of action one might expect from those who are not parties to leases—quantum meruit, conversion, and unjust enrichment—and tacks on a purported claim under Pennsylvania’s Guaranteed Minimum Royalty Act (“GMRA”).

      EQT filed motions to exclude and strike the opinions of two of Plaintiffs’ experts, Cara Davis and Christopher L. Haney.

      Law And Legal Expert Witness

      Cara C. Davis has had 15 years of experience, devoted entirely to the oil and gas title industry and has personally prepared and reviewed hundreds of title abstracts and rendered numerous certified title opinions based on both [her] own work and that of others.

      Additionally, Davis is licensed to practice law in Pennsylvania and Ohio and her experience includes evaluating title defects, identifying and assisting with unknown heirs, and tracing mineral ownership, all of which are directly relevant to the identification and location of unleased co-tenants.

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

      Accounting Expert Witness

      Christopher L. Haney is a certified public accountant (“CPA”), a certified fraud examiner (“CFE”) and certified in healthcare compliance (“CHC”).

      Haney is regularly retained as an expert and has testified in a variety of venues on topics including financial damages, data analysis, statistical sampling, and regulatory compliance.

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

      Discussion by the Court

      Cara Davis

      EQT asserted that Davis did not adequately review and tailor [her opinions] to the record facts of the case, her opinions are not grounded in the facts, her opinions are unhelpful to the trier of fact on class certification and her opinions were offered in relation to a prior class certification definition that Plaintiffs have now abandoned.

      Analysis

      Based on Davis’ experience in the industry, along with the additional expert reports in the record, the Court found that Davis’ opinion is reliable. The methodology Davis described, both in her report and throughout her testimony, is a practice which she has employed throughout her career and is “generally accepted” in the industry. Davis also relied on several relevant sources in preparing her report.

      There is a clear connection between Davis’ opinion and the facts at issue. Davis formed her opinion based on the facts provided in the record. She used testimony that led her to believe that EQT employs “standard title practices” and applied relevant data she obtained from excel sheets. She determined, in her “professional experience,” that the identities of the unleased co-tenants and their locations are ascertainable through “diligent title search,” which is an accepted method used throughout the industry.

      EQT additionally challenged Davis’ opinions that EQT is obligated “to identify and locate unleased co-tenants in accordance with the requirements of the Pennsylvania Minimum Royalty Act, 58 P.S. § 33.3.” The Court agreed with EQT that Davis’ opinions, particularly regarding obligations stemming from § 33.3, shall be excluded.

      Davis states in her deposition that she only “vaguely” remembers when the language of the 58 P.S. § 33.3 came out, she does not remember why the statute was passed, she has not read the legislative history, and she did not read the legislative intent behind the statute. As a result, Davis’ testimony that § 33.3 “imposes an obligation on EQT to identify unleased co-tenants” is inadmissible.

      Christopher Haney

      EQT filed a motion to exclude Haney’s expert opinions, asserting “they are unreliable, irrelevant, and misleading.”

      Plaintiffs retained Haney, requesting that he (1) “organize and compile EQT’s data into a structured data set that can be efficiently queried based on select criteria,” (2) use that structured data set to evaluate whether select identifying information for Plaintiffs and other unleased owners (i.e., potential class members for this litigation) can be identified (3) “evaluate acceptable damages methodologies for this matter,” (4) “evaluate the methodology employed by EQT for calculating natural gas royalty payments,” and (5) “determine whether the data available in documents produced by EQT would enable the calculation of natural gas payments or royalties using EQT’s methodology.”

      Analysis

      Haney explained his process and conclusions throughout his report. He also identified an itemized list of sources and information that he relied upon in support of his methodology. Though Haney testified “that he was unable ‘to incorporate all of the data into the database’ from EQT’s records,” Haney was able to compile most of the data apart from the tax parcel identification numbers that were contained in EQT’s Setup Files.

      Haney emphasized that he used “widely accepted statistical procedures and equations” when designing and executing his Statistically Valid Random Sampling method.

      The Court found that Haney had good grounds to rely on the data and information provided by counsel when forming his opinions.

      Haney used a reliable methodology. He used EQT’s established uniform method for calculating royalties owed to all owners regardless of whether they are parties to a lease.

      Held

      • The Court granted in part and denied in part Defendant EQT’s motion to exclude the expert opinions of Cara Davis.
      • The Court denied Defendant EQT’s motion to exclude the expert opinions of Christopher Haney.

      Key Takeaway

      When an expert relies solely or primarily on experience, he must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.

      Case Details:

      Case Caption: Ross V. EQT Corporation
      Docket Number: 2:21cv1585
      Court Name: United States District Court, Pennsylvania Western
      Order Date: May 18, 2026
    2. Economics Expert Was Not Allowed to Opine on Punitive Damages

      Economics Expert Was Not Allowed to Opine on Punitive Damages

      Plaintiff Kimberly McKinney filed a wrongful termination action against Land O’Lakes, citing its failure to accommodate her disability and work limitations stemming from injuries she sustained due to an unsafe condition at work.

      Defendant sought to preclude the testimony of Plaintiff’s retained experts Dr. Joseph Penbera and Dr. Julie Armstrong.

      Economics Expert Witness

      Joseph J. Penbera earned a B.A. from Rutgers in 1969, a masters in public administration from The Baruch School (CUNY) in 1970 and a Ph.D. from American University in 1973.

      He is forensic economist whose work has been accepted in local, state, and
      Federal jurisdictions as well as in various international venues.

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

      Psychology Expert Witness

      Julie Armstrong earned a bachelor of science in nursing from the Consortium of Cal. State Colleges and Universities in 1988, a Masters in nursing/clinical nurse specialist from U.C.L.A. in 1990 with a specialty in psychiatric/mental health nursing, and a Doctor of Psychology degree from Pepperdine University in 1996.

      She has conducted more than a thousand clinical interviews or evaluations for psychological injury or impairment for the Workers’ Compensation Appeals Board in California. As of 2025, she has testified in Court or Administrative hearings approximately 60 times.

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

      Discussion by the Court

      I. MOTION IN LIMINE TO PRECLUDE TESTIMONY BY PENBERA

      Defendant sought to preclude Plaintiff’s expert, Dr. Joseph Penbera, from: (1) testifying to lost wages that allegedly accrued after January 1, 2024 through trial, (2) offering opinions based on unreliable methodology and testifying as to legal conclusions; and (3) testifying as to punitive damages.

      A. Opinions on lost income and benefits since May 28, 2023

      1. Admissibility of Penbera’s expert testimony

      Penbera calculated Plaintiff’s lost income and benefits based on Plaintiff’s past wages. Defendant raised several objections regarding the method Penbera utilized in calculating lost wages, but such objections go to the weight of Penbera’s opinion, not its admissibility. Penbera’s report indicates that, among other information, he reviewed Plaintiff’s earnings statements from “12/23/2018 to 1/13/2024” and from “6/15/2023 to 5/15/2025.” Those include Plaintiff’s earnings statements showing her 2023 income and deductions through May 2023, when she was put on leave or terminated, and showing her 2024 income and deductions through mid-December 2024.

      To the extent the Defendant argued that Penbera relied on incomplete pay data from the relevant years or failed to adequately consider Plaintiff’s earnings in earlier years, “it is not the role of the trial court to evaluate the correctness of facts underlying one expert’s testimony.”

      The Court made it clear that Penbera is not precluded as a general matter from offering expert opinions on Plaintiff’s lost income and benefits.

      2. Lost income and benefits damages based on events occurring between Plaintiff’s 2022 injury and her starting a new position in March 2024

      Defendant asserted that Penbera’s opinions rest “entirely” on 2024 and 2025 factual allegations that are not part of plaintiff’s claims in this action. But that is incorrect. For example, Penbera’s report reflects that, among other data, he considered Plaintiff’s past wages from January through May 2023 in calculating Plaintiff’s lost income for the period from her alleged constructive termination in May 2023 through her starting a new position in March 2024.

      Penbera’s report also included calculations of Plaintiff’s future lost income and benefits after December 2024. But the parties agreed that Plaintiff obtained a new job position with Defendant in March 2024. And while Plaintiff was allegedly terminated from that new position in December 2024, that termination is not part of Plaintiff’s claims in this action. 

      To the extent Plaintiff’s future lost income and benefits are based on Plaintiff’s alleged wrongful termination in December 2024, which is not a claim at issue in this case, testimony as to such damages would not be relevant to Plaintiff’s claims at trial. The Court held that Penbera will be precluded from testifying as to lost income and benefits damages that are due to Plaintiff’s December 2024 termination. However, to the extent certain such future losses are attributable to actions that are the subject of Plaintiff’s claims—for example, Plaintiff’s loss of future benefits due to her lost income in the period from May 2023 to March 2024—then Penbera’s testimony as to such specific future losses would be admissible to that extent.

      B. Punitive Damages

      Defendant argued that Penbera should be precluded from testifying about punitive damages because he was not designated to testify about punitive damages.

      Plaintiff appeared to concede that Penbera cannot provide expert testimony as to punitive damages. Plaintiff did not disclose Penbera as an expert on any punitive damages issue, and Penbera’s expert report did not include an opinion regarding punitive damages. 

      Penbera was therefore precluded from testifying as an expert as to punitive damages and may not offer any opinion as to Defendant’s financial documents or financial condition. Plaintiff did not dispute the exclusion of expert opinion or expert testimony on this issue.

      II. MOTION IN LIMINE TO PRECLUDE TESTIMONY BY ARMSTRONG

      Defendant sought (1) to preclude Plaintiff’s expert Julie Armstrong from testifying as to Plaintiff’s emotional distress and non-economic damages because, Defendant claims, Armstrong’s testimony is based on events in 2024 that are outside the scope of the litigation, (2) to preclude Armstrong’s testimony because it is not based on any medical or employment records, and (3) to preclude Armstrong from offering opinions regarding the causation of Plaintiff’s emotional distress damages.

      Analysis

      First, Defendant argued that Armstrong’s opinions should be precluded because they are based on Plaintiff’s factual allegations concerning events outside the scope of Plaintiff’s claims, including Plaintiff’s assertion that in December 2024 Defendant wrongfully terminated her from her new position, and that in September 2024 Defendant posted graphic photos of Plaintiff’s injury.

      While Defendant argued that Armstrong relied insufficiently on the relevant period in reaching her expert opinions, that is incorrect. Armstrong’s report refers at length to Plaintiff’s account of her circumstances from her injury in November 2022 to her re-hiring by Defendant in March 2024.

      Second, Defendant also objects that Armstrong’s opinion relies solely on her experience and her interview and testing of Plaintiff and not on medical or employment records. This argument likewise goes to the weight of Armstrong’s testimony, not to its admissibility.

      Armstrong explained that her opinion is based largely on her clinical interview of Plaintiff, during which Armstrong administrated the Structured Inventory of Malingered Symptoms (SIMS) and Millon Clinical Multiaxial Inventory-IV (MCMI-IV) tests.

      Third, Defendant sought to preclude Armstrong from offering opinions regarding the causation of Plaintiff’s emotional distress damages. Armstrong was not Plaintiff’s treating provider and did not review Plaintiff’s contemporaneous medical records, and she did not observe Plaintiff’s emotional state or symptoms during the period from 2022 to March 2024.

      But the Court held that Armstrong may testify to her observations of Plaintiff’s emotional distress symptoms and disorder when she evaluated plaintiff in July 2025, and the extent to which plaintiff’s account of her alleged adverse workplace experiences from her 2022 injury to her rehiring in March 2024, if true, could substantially contribute to such ongoing emotional distress symptoms.

      Held

      The Court granted in part and denied in part Defendant’s motions in limine to preclude the testimony of Dr. Joseph Penbera and Dr. Julie Armstrong.

      Key Takeaway

      Under Daubert, the district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury.

      Case Details:

      Case Caption: McKinney V. Land O’Lakes, Inc.
      Docket Number: 1:23cv1304
      Court Name: United States District Court, California Eastern
      Order Date: June 21, 2026
    3. Insurance Expert Not Allowed to Opine on the Actual Cash Value of the Home

      Insurance Expert Not Allowed to Opine on the Actual Cash Value of the Home

      On November 10, 2022, Kenneth and Phyllis Zerr perished in a house fire. Plaintiffs—the Zerrs’ children and Kenneth Zerr’s estate—alleged that the fire was caused by a defective dehumidifier produced by Gree.

      Defendants sought to call an insurance adjuster, Steven Weitz, to testify as to the value of the home, and its contents, before and after the fire. Plaintiffs filed a motion to exclude his testimony.

      Insurance Expert Witness

      Steve Mark Weitz is a Licensed Independent Adjuster licensed in California with over 30 years of experience in analyzing loss claims, with a focus on residential fire losses.

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

      Discussion by the Court

      Plaintiffs did not challenge Weitz’s credentials. Rather, they argued that Weitz’s opinion should be excluded because he evaluated the “actual cash value” of the home and its contents, where Missouri law requires damages to be assessed using the “fair market value” of the property before and after the fire.

      The question before the Court, then, is whether Defendants have shown that that it is more likely than not that Weitz’s “replacement cost less depreciation” testimony would “help the trier of fact to determine” the property’s “fair market value.”

      Missouri Approved Jury Instruction (MAI) 16.02 defines “fair market value” as “the price that the property in question would bring when offered for sale by one willing but not obliged to sell it and when bought by one willing or desirous to purchase it but who is not compelled to do so.”

      It is the Defendants’ burden to show that Weitz’s testimony is more likely than not admissible under Rule 702. However, Defendants produced no statute, jury instruction, or case law suggesting that testimony about “replacement cost less depreciation” would help the jury determine “fair market value” as defined in MAI 16.02. Instead, they cited cases from distinctly different contexts, in which courts interpreted “actual cash value” as “fair market value,” not cases in which courts allowed parties to establish “fair market value” by presenting evidence of “replacement cost less depreciation,” as Defendants propose. Moreover, they made the specious claim that Weitz “employed the same standard” as MAI 16.02, citing two parts of his report that relate to his valuation of the contents of the Zerrs’ home, not the structure.

      Held

      The Court granted Plaintiffs’ motion to exclude the testimony of Steven Weitz.

      Key Takeaway

      Defendants have failed to establish the admissibility of Weitz’s testimony under Rule 702 by a preponderance of the evidence because mischaracterization of the expert’s report is not a strong foundation for an
      argument.

      Please refer to the blog previously published about this case:

      Fire Investigation Expert Was Allowed to Opine on UL Listing

      Case Details:

      Case Caption: Hillman V. Gree USA, Inc.
      Docket Number: 4:23cv830
      Court Name: United States District Court, Missouri Eastern
      Order Date: May 26, 2026
    4. Construction Expert Allowed to Opine on Causes of Project Delay

      Construction Expert Allowed to Opine on Causes of Project Delay

      P&E is a Kansas-based contractor who entered into a design-build contract with WI RNG Hub North, LLC, for a renewable natural gas production facility in Gillet, Wisconsin (the “Project”) to be completed by February 27, 2023. The Project included construction of two buildings to house process equipment for producing renewable natural gas from dairy cow manure and dryer equipment for producing a fiber by-product. To complete the Project, P&E entered into subcontracts with various companies, including Crescent Power, Bayland Building, Inc. (“Bayland”), and Air Liquide Advanced Technologies U.S., LLC (“Air Liquide”). P&E retained Crescent Power as a material supplier to deliver electrical-power equipment to the Project location, including switchboards and MCCs.

      The Project faced several schedule delays and was completed 175 days behind schedule. Relevant here, P&E alleged that Crescent Power failed to deliver the MCCs on time under their contract. P&E alleged that Crescent Power’s late delivery, combined with its other subcontractors’ contractual failures, significantly delayed the Project’s overall com.

      P&E retained Christopher J. Smocke to review the Project, including its five-page critical path schedule, and offer opinions on the causes of the Project’s delays and resulting damages to P&E. Regarding Crescent Power, Smocke opined that it delivered the MCCs 69 days late, is 41% at fault for the first 140 days of the delay to the Project’s completion, and is responsible for $762,415 of P&E’s total damages.

      Crescent Power filed a motion to exclude Smocke’s opinions under Rule 702 of the Federal Rules of Evidence.

      Construction Expert Witness

      Christopher J. Smocke has worked as a Senior Project Manager, Project Executive, Vice President, and President in various construction companies, for general contractors, and for construction owner’s representative firms. In these roles, he managed budgets and organized schedules for several multi-million-dollar projects. He has also conducted informal mediations where he allocated responsibility between multiple parties in construction project disputes. Further, Smocke has been retained as an expert in three arbitrations and two lawsuits, offering opinions on construction delays and resulting damages.

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

      Discussion by the Court

      A. Qualifications

      First, Crescent Power argued that Smocke lacked the requisite qualifications to offer his opinions. Crescent Power recognized that Smocke has over 50 years of experience in construction project management, but argued that he lacked specific experience or education in conducting forensic schedule analyses and allocating fault pursuant to Association for the Advancement of Cost Engineering (“AACE”) standards.

      The Court concluded that P&E met its burden to show that Smocke is sufficiently qualified based on his significant experience in construction project management.

      B. Reliability of Methodology

      Crescent Power argued that Smocke’s opinions are ipse dixit because he did not conduct a forensic analysis of impacts on the Project’s critical path pursuant to one of the AACE or Society of Construction Law’s prescribed methods.

      In his report, Smocke identified which delays he opined affected the overall completion of the Project based on his review of the case and his experience. For example, he discussed how Crescent Power’s late delivery of MCCs impacted the Project’s overall completion because the switchboards could not be powered up without them, holding up work in both Project buildings and all systems for renewable natural gas production. As P&E pointed out, his discussion mirrors both AACE and Society of Construction Law principles on disruption and delay to construction projects.

      Crescent Power also identified what it considered as “blatant errors” in Smocke’s opinions to demonstrate that his methodology is unreliable. To begin with, Crescent Power argued that Smocke added days to the calendar to reach his opinion that 140 days of delay should be apportioned between Crescent Power, Bayland, and Air Liquide. P&E asserted that Crescent Power simply misunderstood Smocke’s testimony regarding the 140 days. Crescent Power also argued that Smocke failed to consider other delays not caused by Crescent Power in his analysis, but P&E asserted that Smocke correctly considered other delays.

      The Court is concerned, however, with Smocke’s methodology for allocating fault and damages between P&E’s subcontractors. To do so, Smocke took the number of days he determined that Crescent Power missed its required delivery dates (69) and divided that number by the total of late delivery days he determined between Crescent Power, Bayland, and Air Liquide (168) to allocate a percentage of fault to Crescent Power (41%) and ultimately conclude that Crescent Power is responsible for $762,415 in damages.

      C. Sufficiency of Underlying Facts & Data

      Crescent Power also challenged the sufficiency of the facts and data underlying Smocke’s opinions. To begin with, Crescent Power argued that Smocke’s deposition testimony contradicted his opinion assigning 69 late delivery days to Crescent Power. This argument is similar to Crescent Power’s concern over Smocke’s assignment of 140 Project delay days between Crescent Power, Bayland, and Air Liquide. Likewise, the Court reached a similar conclusion and determined that Crescent Power’s concern goes to weight as opposed to admissibility and can be sufficiently addressed on cross-examination.

      Second, Crescent Power again argued that Smocke’s opinion is unreliable because he did not conduct a formal Critical Path Methodology (“CPM”) analysis to establish that the MCCs were on the critical path to the Project. CPM is a a term of art for a method of scheduling and administering construction contracts, and its common use in resolving disputes over excusable-delay claims. The Court also rejected this argument.

      Third, Crescent Power challenged Smocke’s allocation of fault and damages between P&E’s subcontractors on sufficiency grounds two ways: (1) he failed to independently evaluate P&E’s alleged damages; and (2) his allocation was purely speculative and unhelpful to the jury. The Court had already determined that P&E failed to establish that Smocke used a reliable methodology to allocate fault and damages between P&E’s subcontractors.

      Held

      The Court granted in part and denied in part Crescent Power’s motion to exclude the testimony of Christiopher Smocke.

      Key Takeaway

      P&E failed to address Smocke’s formula for allocating fault entirely, let alone explain how it is reliable under Daubert. Because P&E failed to establish this methodology is reliable, the Court did not not permit Smocke to testify to his opinions allocating fault and damages between P&E’s subcontractors based on his self-created formula.

      Case Details:

      Case Caption: P&E Solutions, LLC V. Crescent Power Systems, Inc.
      Docket Number: 6:24cv1209
      Court Name: United States District Court, Kansas
      Order Date: May 08, 2026
    5. Business Valuation Expert Not Allowed to Opine on Corrective Advertising Damages

      Business Valuation Expert Not Allowed to Opine on Corrective Advertising Damages

      Plaintiff-Appellant Makina Ve Kimya Endustrisi A.S. (“MKE”) appeals from a judgment of the United States District Court for the Southern District of New York arising from MKE’s suit against Defendants-Appellees for their unauthorized use of MKE’s wordmark and logo in connection with soliciting customers to purchase MKE ammunition.

      MKE challenged the judgment insofar as it granted Defendants-Appellees’ motion to exclude the testimony of Pamela O’Neill, MKE’s damages expert, regarding reasonable royalty and corrective advertising damages.

      Business Valuation Expert Witness

      Pamela M. O’Neill has spent more than 30 years as a valuation professional and has directed more than 900 valuation assignments. Early in her career, she was called to testify before the New York Stock Exchange Arbitration Panel and was cited by the Panel as “an excellent expert witness”.

      Her international valuation career has included significant assignments in North America, South America, Europe, Asia, the Middle East, Australia, and New Zealand. She has prepared expert reports for litigation purposes as well as for financial and tax reporting, dispute resolution, investigations, antitrust matters, negotiations, acquisitions, divestitures, reorganizations, solvency and bankruptcy.

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

      Discussion by the Court

      To determine reasonable royalty damages, O’Neill calculated a royalty rate based on the royalty rates from six licensing agreements that she asserted were comparable to the license, and which would have resulted from a hypothetical negotiation between MKE and Defendants-Appellees for the “MKE” wordmark and logo when the infringement began. In doing so, however, O’Neill considered only the fact that the six licensing agreements concerned the same broad industry (“ammunition”) without accounting for any differences in the type of intellectual property, product, or royalty payment structure at issue. The District Court did not manifestly err in excluding the testimony on the ground that her royalty rate calculation was based on insufficient facts and data and that there was “simply too great an analytical gap between the data and the opinion proffered.”

      O’Neill determined corrective advertising damages by calculating MKE’s combined spending on “Marketing, Sales, & Distribution” as a percentage of revenue for each year between 2013 and 2021, and applying the differential percentage spent in 2022 to the revenue MKE generated in 2022.

      But this calculation provided O’Neill only with the total dollar amount MKE spent on all of marketing, sales, and distribution in 2022 over what it had spent historically, not how much of that spending constituted corrective advertising in response to Defendants-Appellees’ infringement. It was not error for the District Court to find that O’Neill’s conclusion lacked a sufficient factual foundation.

      The Second Circuit found that the District Court properly excluded expert testimony that lacked sufficient factual foundation, as O’Neill’s reasonable royalty calculation failed to account for key differences between licensing agreements and her corrective advertising calculation was too speculative.

      Held

      The Second Circuit affirmed the District Court’s judgment in all respects, including the exclusion of O’Neill’s testimony.

      Key Takeaway

      A decision to exclude is not an abuse of discretion unless it is manifestly erroneous.

      Case Details:

      Case Caption: Makina Ve Kimya Endustrisi A.S. v. A.S.A.P. Logistics LTD
      Docket Number: 25-1807
      Court Name: United States Court of Appeals for the Second Circuit
      Order Date: April 30, 2026
    6. Economics Expert Allowed to Opine on Constant Inflation 

      Economics Expert Allowed to Opine on Constant Inflation 

      This is a consolidated action for securities fraud brought by Lead Plaintiff Los Angeles County Employees Retirement Association on behalf of a putative class of investors in the Ohio-based electrical utility company FirstEnergy Corporation. Plaintiffs alleged violations of the Securities Exchange Act of 1934 and the Securities Act of 1933 by FirstEnergy, its named officers and directors, and a group of underwriters, in connection with the Ohio House Bill 6 scandal.

      W. Scott Dalrymple was retained as an expert witness on behalf of Plaintiffs, and submitted an expert report in June 2022 analyzing whether FirstEnergy’s common stock traded in an efficient market and addressing whether damages could be calculated using a common methodology. Defendants filed a motion to exclude Dalrymple as an expert.

      Defendants did not challenge Dalrymple’s qualifications, nor did they challenge the reliability of an event study methodology generally. Instead, the issue advanced by Defendants is whether Dalrymple has sufficiently explained how he would or could apply his proposed methodology to the facts as alleged in the Complaint.

      Plaintiffs argued that Dalrymple has reliably applied his proposed technique to the facts of the case and has offered a reasonable view of constant inflation that could, at any rate, rest on assumptions of liability at this stage in the case.

      Economics Expert Witness

      William Scott Dalrymple is an economist and a CFA charter holder with extensive experience in economic, financial, and statistical analyses. During his career, he has worked on issues relating to the analysis of economic damages involving securities litigation, business valuation, structured finance, financial derivatives, antitrust, intellectual property, and breach of contract.

      Moreover, Dalrymple holds a Master of Science in Economics from the London School of Economics and Political Science and a Bachelor of Business Administration in Finance and Business Honors from the University of Texas at Austin. 

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

      Discussion by the Court

      To begin with, Defendants did not contest the testing, peer review and publication, or acceptance of event study methodologies generally; instead, they attempt to undermine the possible accuracy of Dalrymple’s proposed methodology in this particular instance. But Defendants advance this argument by misconstruing Dalrymple’s testimony and recharacterizing Plaintiffs’ theory of the case.

      Plaintiffs have presented a viable, consistent, and classwide approach to damages. Their theory is that Defendants “concealed corrupt conduct,” causing “FirstEnergy’s stock to trade at an inflated price throughout the Class Period” such that “revelations of Defendants’ corruption, beginning in July 202, caused this inflation to dissipate, damaging investors.” Under Plaintiffs’ theory, it may be the case that inflation is constant, or it may be variable. The Court need not reach that argument, or Defendants’ concern about Plaintiffs’ supposedly new criminal enterprise theory. Even if the inflation is time-varying, the fact that a damages model does not account for such variation is not a reason to discount the damages model at this stage.

      In sum, the Court is satisfied by Dalrymple’s testimony that any potential time variation in inflation could be accounted for under his proposed event study (or out-of-pocket) damages methodology. Overall, Defendants’ challenges to the accuracy of Dalrymple’s proposed methodology go to the weight of the evidence, not to its admissibility.

      To the extent that Defendants challenge Dalrymple’s testimony as inconsistent with his earlier expert reports or violative of Rules 26 or 37, neither argument is availing.

      Rule 26 “contemplates that the expert will supplement, elaborate upon, explain and subject himself to cross-examination upon his report.” That is what Dalrymple did, at Defendants’ request.

      Held

      The Court denied the Defendants’ motion to exclude the testimony of W. Scott Dalrymple.

      Key Takeaway

      Experts are permitted wide latitude in their opinions, including those not based on firsthand knowledge, so long as the expert’s opinion has a reliable basis in the knowledge and experience of the discipline.

      Case Details:

      Case Caption: In re Firstenergy Corp. Securities Litigation
      Docket Number: 2:20cv3785
      Court Name: United States District Court for the Southern District of Ohio, Eastern Division
      Order Date: April 30, 2026
    7. Credit Reporting Expert Not Allowed to Opine on Intentions

      Credit Reporting Expert Not Allowed to Opine on Intentions

      In 2022, Plaintiff Rick Fox received a letter from his student loan provider stating that it extended condolences to Plaintiff’s family concerning Plaintiff’s death. Several weeks later, Plaintiff learned that his insurance benefits through the Department of Veterans Affairs (“VA”) had been terminated after the VA received a report that Plaintiff was deceased. On July 29, 2022, Plaintiff discovered that the Social Security Administration (“SSA”) had marked him as “deceased.” Plaintiff later discovered that both Equifax and Trans Union were reporting him as deceased on a Discover account listed on his consumer reports. After disputing this designation, Plaintiff alleged that he received a communication from Experian stating that the Discover account had been corrected, and, because credit bureaus share information, Plaintiff assumed that Trans Union would correct the mistake in its report as well.

      On August 15, 2022, Plaintiff applied for a car loan with five non-party entities, each of which obtained a copy of Plaintiff’s Experian credit report, and all five loan applications were ultimately denied. Plaintiff alleged, on information and belief, that all five applications were denied because he was still being reported as “deceased” on his consumer reports.

      Plaintiff proffered the opinion of Evan Hendricks in support of his claims brought in this case. Experian Information Solutions, Inc. filed a motion to exclude or limit the testimony of Hendricks.

      Credit Reporting Expert Witness

      Evan D. Hendricks has worked in the field of data privacy and credit reporting for over forty years. He was the Editor and Publisher of Privacy Times from 1981-2013.

      Hendricks has also given many presentations on the FCRA at conferences offering continuing legal education and other professional seminars. Hendricks has served as an FCRA expert witness since 1992, has testified as an expert in at least 25 trials in both federal and state court, and has testified before Congress and the Federal Trade Commission (“FTC”) on credit reporting practices. He wrote the book Credit Scores and Credit Reports: How the System Really Works, What You Can Do (“Credit Scores and Credit Reports”).

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

      Discussion by the Court

      In its motion, Defendant sought to exclude the testimony of Hendricks regarding: (1) Defendant’s policies and procedures surrounding its product, Fraud Shield; (2) Plaintiff’s damages; (3) Defendant’s knowledge, motivations, intentions, state of mind, and subjective beliefs; (4) prior cases, administrative actions, and consent orders; and (5) the reasonableness of Defendant’s policies and procedures.

      A. Fraud Shield

      Defendant contended that Hendricks’ opinion regarding its Fraud Shield product must be excluded because Hendricks is unqualified to opine on it.

      As a preliminary matter, Hendricks is not automatically unqualified to offer an opinion about the Fraud Shield product just because he lacked direct experience with it. Even more specifically, the Fraud Shield product is “within the reasonable confines of his subject area” because that product is part of the credit reporting process. Therefore, the Court concluded that Hendricks is qualified to offer an expert opinion about the product and how it functions.

      As to reliability, where, as here, the expert’s opinion is non-scientific in nature, “reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.”

      As noted above, in his report Hendricks stated that he formed his opinions in this case based on, among other things, the allegations of Plaintiff’s complaint and his own extensive experience in the credit reporting industry. These facts establish a sufficient basis as to the reliability of his opinion.

      B. Damages

      Defendant also argued that, as evidenced by his report and deposition testimony, Hendricks is not qualified to offer expert opinion or testimony on Plaintiff’s damages.

      As a preliminary matter, Hendricks’ failure to review certain materials again bears on the weight of his opinion, not its admissibility.

      In his expert report in this case, Hendricks has conceded that, other than the impact on Plaintiff’s creditworthiness, “most, if not all, of the testimony regarding Plaintiff’s specific, actual damages will come from fact witnesses.” Nonetheless, Hendricks’ report addressing damages largely consists of a list of eight categories of “typical negative impacts of unreasonable credit report inaccuracy” that he believes will aid the fact finder in assessing damages in this case, given his belief that Plaintiff experienced “many” of these categories of harm.

      Those eight categories are: (1) inaccurate descriptions of creditworthiness to third parties; (2) improper denial of credit; (3) loss of time, energy, and opportunities due in part to correcting the mistakes on one’s credit report; (4) wrongfully receiving debt collection calls; (5) being chilled from applying for credit; (6) sleeplessness and physical symptoms; (7) sense of helplessness and loss of control over personal data; and (8) emotional distress.

      The Court concluded that Hendricks is qualified to testify regarding the categories of damages that individuals often suffer from inaccurate credit reporting.

      C. Defendant’s State of Mind

      Defendant next argued that Hendricks has proffered opinions regarding Defendant’s knowledge, motivations, intentions, objective state of mind, and subjective beliefs which “plainly failed to satisfy Rule 702” of the Federal Rules of Evidence.

      Upon review of the expert report, the Court observed several instances in which Hendricks opines on Defendant’s state of mind. Courts routinely exclude expert testimony as to intent, motive, or state of mind as issues better left to a jury. Accordingly, the Court held that Hendricks will be prohibited from offering his opinions regarding Defendant’s state of mind, specifically, whether Defendant acted with disregard or knowingly.

      However, Hendricks will not be precluded from offering expert testimony regarding industry standards regarding accurate credit reporting even if that testimony could reasonably reflect Defendant’s subjective awareness about those standards when it developed and launched the Fraud Shield product.

      D. Prior Actions

      Defendant argued that Hendricks’ opinions should be excluded to the extent that he describes consent orders entered into by Defendant’s predecessor, prior cases, and administrative actions.

      Expert testimony as to prior actions, consent orders, and administrative actions “is unnecessary because no specialized knowledge or expertise is needed to understand the existence of those prior actions and to draw reasonable inferences from them.”

      The Court concluded that expert testimony of this nature will not be helpful to the jury in this case.

      E. Legal Conclusions

      Finally, Defendant argued that Hendricks offered several opinions that involved legal conclusions on ultimate issues in this case and that should be excluded as impermissible under Rule 702 of the Federal Rules of Evidence.

      An opinion is not objectionable just because it embraces an ultimate issue. Because he is an expert on credit reporting, the Court held that Hendricks may offer opinions regarding industry standards of credit reporting practices, how Defendant’s practices did or did not comport with those standards, and even what measures Defendant could have implemented to improve credit reporting accuracy.

      Moreover,  it did not appear to the Court that the Defendant sought to exclude any specific opinions regarding the reasonableness of Defendant’s policies

      Held

      The Court granted in part and denied in part the Defendant’s motion to exclude or limit the expert opinion of Evan Hendricks.

      Key Takeaway

      With respect to corporations, the opinions of expert witnesses on the intent, motives, or states of mind of corporations, regulatory agencies and others have no basis in any relevant body of knowledge or expertise.

      Case Details:

      Case Caption: Fox V. Experian Information Solutions, Inc.
      Docket Number: 1:22cv1197
      Court Name: United States District Court, California Eastern
      Order Date: March 31, 2026
    8. Economics Expert Was Allowed to Opine on the Cut-Off Date for Damages

      Economics Expert Was Allowed to Opine on the Cut-Off Date for Damages

      This is an employment lawsuit brought by Stephen (Rex) Sanders and Terri Levels, who both worked at the Bay Area Air Quality Management District. Sanders served as the Chief Administrative Officer, and Levels served as the Human Resources Officer. In 2023, the District terminated the employment of both Sanders and Levels.

      Sanders and Levels claimed that they were fired in retaliation for complaining about workplace discrimination. Plaintiff’s motion in limine sought to exclude Defendant’s highly credentialed economic expert Kaycea Campbell, Ph.D. from testifying altogether because a portion of her opinion asserted what Plaintiffs contended is a legal conclusion (i.e., that damages should be cut off on the date that Plaintiffs voluntarily withdrew from Defendant’s internal grievance process).

      Economics Expert Witness

      Kaycea Campbell holds a master’s degree and Ph.D. in economics, and has worked, consulted, taught, and published in this field for over two decades.

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

      Discussion by the Court

      Plaintiffs did not challenge Campbell’s qualifications or the reliability of her testimony under Rule 702, but instead challenged her use of the date of Plaintiffs’ withdrawal from the internal grievance appeals process as a cut-off for damages on the basis that this is a legal conclusion.

      However, Campbell may properly testify that, in her opinion, the Employment Development Department (EDD) requirements for unemployment claims are relevant in order to assess whether damages had been mitigated, and that those requirements involve pursuit of the appeals.

      Campbell need not be an HR expert to state that, from an economic perspective, the EDD’s guidance is probative of the industry standard, and may then provide the jury with a damages calculation based on applying the EDD’s standard.

      Held

      The Court denied Plaintiffs’ motion to exclude the testimony of Defendant’s economic expert Kaycea Campbell.

      Key Takeaway

      Campbell’s limited opinion about Plaintiffs’ claimed damages is admissible because she properly makes an expert assessment as to the relevant damages cut-off dates.

      Case Details:

      Case Caption: Sanders V. Bay Area Air Quality Management District
      Docket Number: 3:23cv4416
      Court Name: United States District Court, California Northern
      Order Date: February 03, 2026