Expert Witness Profiler

Tag: Damages

  • Corrections Expert Barred From Testifying About Witness Credibility

    Corrections Expert Barred From Testifying About Witness Credibility

    Plaintiff Deoz Miller-Harris, formerly a detainee at the Onondaga County Justice Center (“OCJC”) alleged that the Defendants Onondaga County (the “County”) sheriff’s office employees Dustin Saddock, Ryan Whitmore, Anthony Tineo, Thomas Fodaro, Vedad Hujdur, and James Quigley (the “Individual Defendants”) violated his civil rights by using excessive force against him on September 16, 2021, and that the County negligently supervised, trained, and retained the Individual Defendants.

    Subsequently, the Defendants identified two expert witnesses they intended to call at trial: (1) retired sheriff Gerry D. Billy and (2) neurologist Dr. Robert Knapp. In response, Plaintiff filed a motion in limine seeking to limit the testimony of both experts.

    Corrections Expert Witness

    Gerry D. Billy completed six full terms (24 years) as the Sheriff of Licking County, Ohio, and has been in the profession of law enforcement and corrections for over three decades.

    In addition, he has authored a number of articles in national publications on jail, law enforcement and management related topics and he was also the co-author of Ohio’s Basic Correctional Officer’s Training curriculum.

    Furthermore, Billy has served as a consultant to the U.S. Department of Justice, the National Institute of Corrections, the Bureau of Justice Statistics, the Bureau of Indian Affairs, and the U.S. Attorney General’s Office.

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

    Neurology Expert Witness

    Robert Knapp is a neurologist Board Certified by the American Board of Psychiatry and Neurology. He received his medical degree from the University of Pittsburgh School of Medicine in 1982. He has been a practicing neurologist for over 40 years.

    Discover more cases with Robert Knapp as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    a. Billy

    According to Defendants, Billy “will opine all actions of the sworn staff were commensurate with standard corrections training, procedures and practices, and were properly deployed to maintain safety and security.”

    However, Plaintiff contended that Billy should not be permitted to: (1) testify to a factual narrative, which would usurp the role of the witnesses; (2) offer his opinion about the credibility of other witnesses, which would usurp the role of the jury; or (3) provide an opinion on the ultimate issue in the case, i.e., whether Defendants used excessive force.

    In turn, Defendants clarified that Billy would not offer factual narratives, assess witness credibility, or provide ultimate legal conclusions. Instead, they explained that Billy’s testimony would focus on technical corrections practices beyond the understanding of laypersons, including force techniques employed by the deputies and whether such techniques conformed to professional standards.

    After considering both sides, the Court ruled that Billy was precluded from testifying to a factual narrative because he lacked personal knowledge of the underlying facts. Additionally, he was barred from assessing witness credibility or drawing legal conclusions. Nonetheless, the Court denied Plaintiff’s motion to the extent that he sought to preclude Billy’s testimony “in its entirety.”

    b. Knapp

    Plaintiff contended that Knapp should not be permitted to refer to specific instances of his past drug use, discuss post-incident psychiatric conditions such as grandiosity, depression, and mild homicidal ideations, or conflate psychiatric diagnoses with their symptoms. Conversely, Defendants argued that Knapp’s testimony about Plaintiff’s drug use was relevant to damages and alleged injuries, and his discussion of post-incident conditions would provide important context for evaluating the etiology of Plaintiff’s seizure disorder.

    After review, the Court held that Knapp could not testify regarding specific instances of the Plaintiff’s past drug use, as such testimony would be highly prejudicial, only marginally probative, and likely to confuse or mislead the jury. Nevertheless, the Court allowed Knapp to testify about the Plaintiff’s post-incident diagnoses because such expert testimony might assist in rebutting or mitigating damages.

    Held

    • The Court granted in part and denied in part the Plaintiff’s motion in limine to limit the testimony of Gerry D. Billy.
    • The Court granted in part and denied in part, without prejudice to renew at trial if necessary, the Plaintiff’s motion in limine to limit the testimony of Robert Knapp.

    Key Takeaway:

    When an expert intends to offer an opinion relevant to the application of a legal standard, the expert’s role is limited to describing sound professional standards and identifying departures from them.

    Case Details:

    Case Caption: Miller-Harris V. The County Of Onondaga
    Docket Number: 9:22cv1363
    Court Name: United States District Court, New York Northern
    Order Date: October 29, 2025
  • Survey Research Expert’s Testimony on Economic Harm and Damages Admitted

    Survey Research Expert’s Testimony on Economic Harm and Damages Admitted

    Linda Sunderland and Benjamin Binder, amongst others, filed this putative class action against Defendant PharmaCare U.S., Inc., asserting consumer protection and breach of warranty claims based on its Sambucol product, a dietary supplement that is alleged to contain a proprietary extract of black elderberry.

    Defendant filed a motion to exclude Plaintiffs’ experts, Dr. J. Michael Dennis (“Dr. Dennis”) and Mr. Colin Weir (“Mr. Weir”). Dennis performed a consumer perception survey, a materiality survey, and opined on damages. Weir helped to design and support Dennis’ methodology on damages.

    Survey Research Expert Witness

    J. Michael Dennis is the Senior Vice President of the National Opinion Research Center, which is a survey research organization affiliated with the University of Chicago. Also, Dennis has worked in survey research for more than 20 years, has authored more than 60 articles, and has been found qualified by numerous courts to provide expert opinions on consumer surveys.

    Want to know more about the challenges J. Michael Dennis has faced? Get the full details with our Challenge Study report. 

    Economics Expert Witness

    Colin B. Weir is President at Economics and Technology, Inc., a research and consulting firm specializing in economics, statistics, regulation and public policy. He conducts economic, statistical, and regulatory research and analysis and often testifies as an expert witness before state and federal courts.

    Moreover, his experience includes work on a variety of issues, including: “calculating economic harm and damage, and analyzing liquidated damages provisions; lost profits; false claims; diminution in value; merger/antitrust analysis; Early Termination Fees (ETFs); Late Fees; determination of Federal Excise Tax burden; and development of macroeconomic analyses quantifying the economic impact of corporate actions upon the US economy and job markets.”

    Want to know more about the challenges Colin B. Weir has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    To begin with, Defendant raised several grounds for why these experts’ opinions should be excluded. First, Defendant argued that Dennis’ consumer perception survey was unreliable, biased, and misleading because the statements used in the survey did not match the Products’ labels (i.e., “this is the unique black elderberry extract” as opposed to “Sambucol is the unique black elderberry extract”). Thus, Defendant argued that the questions posed to survey participants do not match Plaintiffs’ theory of liability. 

    Second, Defendant argued that Dennis’ materiality survey is similarly unreliable because the design shown to the survey participants was manufactured for the survey and not an image of the actual product or packaging.

    Third, Defendant argued that Dennis’ damages model is irrelevant and unreliable because it is based on the tested claim, not the class claims.

    Finally, Defendant argued that Dennis’ price premium model is irrelevant because it fails to distinguish between injured and uninjured class members, it is not sufficiently defined, and it is based on a “willingness-to-pay” benchmark rather than measuring an actual price premium.

    After reviewing the parties’ arguments and briefing on these issues, the Court agreed with the many district courts in this circuit that the more appropriate place to consider these arguments is on how much weight to give to the competing expert testimony, rather than their admissibility.

    Held

    The Court denied the Defendant’s motion to exclude the testimony of J. Michael Dennis and Colin Weir.

    Key Takeaway:

    Many of the arguments for exclusion of the testimony is not on whether the types of surveys are acceptable, but whether certain criteria used in the respective surveys pass muster. However, the Ninth Circuit has stated that as a general matter, “challenges to survey methodology go to the weight given the survey, not its admissibility.”

    Case Details:

    Case Caption: Sunderland Et Al V. Pharmacare U.S., Inc. Et Al
    Docket Number: 3:23cv1318
    Court Name: United States District Court, California Southern
    Order Date: September 11, 2025
  • Expert Testimony Survives Daubert Challenge in Surgical Mesh Injury Case

    Expert Testimony Survives Daubert Challenge in Surgical Mesh Injury Case

    Connie Thacker (Plaintiff) received two surgical mesh devices, Prolift and TVT-Secur, as implants on May 8, 2009. Both devices were manufactured by Ethicon, Inc. and were designed to treat pelvic organ prolapse and stress urinary incontinence in women. Later, Thacker sued, alleging damages resulting from the use of these devices and identified Elizabeth Laposata as her “Case-Specific expert.”

    The Defendants moved to exclude Laposata’s testimony regarding general principles of tissue reactions to mesh, changes in the mesh after implantation, pain and suffering, and her opinion that Thacker experienced certain complications.

    Pathology Expert Witness

    Elizabeth Ann Laposata, M.D., F.C.A.P., F.A.S.C.P., is an expert in Anatomic and Clinical Pathology who has served as an expert witness in matters involving negligence, criminal law, and products liability. She has testified in cases before courts including the U.S. District Court for the Northern District of Georgia, the Southern District of West Virginia, and the Supreme Court of Rhode Island, with judges such as Joseph R. Goodwin, William S. Duffey Jr., and others presiding.

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

    Discussion by the Court

    Impermissible General Testimony

    The Defendants argued that Laposata’s general opinions exceeded her designation as a case-specific expert and included irrelevant discussion of mesh changes and symptoms not experienced by Thacker. The Court adopted the reasoning in Meade v. Ethicon, Inc., which held that such general background is permissible when used to explain the pathology underlying the Plaintiff’s symptoms and to support case-specific opinions. The Court found her opinions consistent with her role and admissible under Rule 702.

    Qualification to Opine on Mesh Changes

    Defendants claimed Laposata was unqualified to testify about mesh degradation, citing a 2014 deposition where she allegedly admitted she was not a mesh degradation expert. The Court again relied on Meade, finding that her training, work, and literature review qualified her to opine on degraded mesh in human tissue. It emphasized that an expert’s self-description in a prior case is not dispositive and noted her continued education since 2014.

    Qualification to Opine on Pain and Suffering

    Defendants argued she lacked qualifications to opine on Thacker’s pain and suffering because she does not treat live patients for pain. The Court disagreed, citing Meade, and held that a pathologist’s expertise includes determining causes of injuries and diseases, which encompasses opinions on pain arising from pathological findings.

    Reliability of Testimony Without a Control

    Defendants contended her testimony on Thacker’s complications was unreliable because she did not compare the Plaintiff’s tissue slides with control slides from asymptomatic patients. They relied on MDL precedent that found such methodology insufficient. The Court declined to follow that reasoning, holding that her direct examination of Thacker’s explanted mesh provided adequate validation under Daubert. The absence of a control went to the weight of her testimony, not its admissibility.

    Held

    Defendants’ motion  to exclude testimony from Plaintiff’s expert Elizabeth Laposata was denied.

    Key Takeaway

    The Court upheld Laposata’s case-specific testimony, finding her qualified to opine on mesh changes, pain, and complications, and ruling her methods reliable despite the lack of control slides.

    Please refer to the blogs previously published about this case:

    Urogynecology Expert Witness Testimony about inadequate risk disclosure admitted in medical device product liability action

    Obstetrics and Gynecology Expert’s Testimony on Mesh Porosity and Stiffness Admitted

    Urogynecology Expert’s Opinion on Continuum of Care Admitted

    Obstetrics and Gynecology Expert’s Opinion Regarding the Common Knowledge of Pelvic Surgeons Admitted

    Biomedical Engineering Expert’s Testimony on Product Warnings Admitted

    Biomaterials Expert Barred from Testifying About Corporate Knowledge and Intent

    Case Details

    Case Caption: Thacker v. Ethicon Inc.
    Docket Number: 5:20cv50
    Court Name: United States District Court for the Eastern District of Kentucky, Central Division
    Order Date August 11, 2025
  • Human Factors Expert Barred from Testifying on Whether Injury Was Foreseeable

    Human Factors Expert Barred from Testifying on Whether Injury Was Foreseeable

    Monserrate Caraballo (“Caraballo” or “Plaintiff”) has sued Home Depot U.S.A., Inc. (“Home Depot” or “Defendant”) under state common law tort for negligence, alleging that Defendant’s negligent display of boxed tile resulted in injuries to Plaintiff’s left eye.

    Caraballo filed a motion to exclude certain testimony from Home Depot’s expert, Dr. Robert Rauschenberger.

    Human Factors Expert Witness

    Robert Rauschenberger is currently the Vice President, Director of Human Factors at J.S. Held. He has over 25 years of experience conducting research on topics of visual attention and distraction, the organization of perceptual information, product design, user experience, risk communication effectiveness, and consumer decision-making.

    Also, Rauschenberger obtained his Ph.D. in cognitive psychology from The Johns Hopkins University, and for over two decades has conducted research on how humans process information.

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

    Discussion by the Court

    Caraballo argued (1) that Rauschenberger is unqualified to testify as an expert in this case because he does not have any demonstrable experience in “accidental construction or the biomechanics of strapped boxed tiles display, construction or movements,” (2) that his opinions regarding the “foreseeability” of Caraballo’s injury should be barred as they bear on the “‘ultimate issues’” of the case  (3) that his opinion is irrelevant under Federal Rule of Evidence 701 because it is “not based in science or fact,” and (4) and that “[a]ny evidence and/or testimony relating to an assertion that Plaintiff could and should have chosen a different method of accessing the boxed tiles to avoid the alleged incident contains speculation, is highly prejudicial, is not predicated on any fact and would mislead and confuse the jury,” in violation of Federal Rule of Evidence 403.

    Robert Rauschenberger

    To begin with, Rauschenberger has been recognized as a “human factors expert” under Federal Rule of Evidence 702 in past federal trials. Based on that, the Court has allowed him to testify in this case and offer expert opinions on how consumers like Caraballo may behave with or without proper warnings and instructions.

    Rauschenberg, however, will not be permitted to offer testimony that provides legal conclusions. Whether Caraballo’s injury was “foreseeable” strays perilously close to one of the ultimate issues of this case: whether Caraballo’s injury was reasonably foreseeable by Home Depot.

    The Court ruled that Rauschenberg’s first opinion—that, “[b]ased upon a lack of known prior similar incidents, the absence of scientific literature discussing the underlying mode of injury, and a dearth of even remotely related events in publicly injury databases . . . it was therefore appropriate [for Home Depot] not to provide warning against the alleged hazard of unintentionally punching oneself in the eye while attempting to pull merchandise off the display shelf using a packaging strap”—is relevant and admissible.

    However, he will not be allowed to state that “the subject incident was not foreseeable by Home Depot.”

    In Rauschenberg’s second and third opinions, he opined on how Caraballo “would have” behaved in the presence of warnings and the other options available to Caraballo. But drawing conclusions about what Caraballo would have done is speculative. At best, the Court held that Rauschenberg can opine on how “consumers” or “consumers like Caraballo,” generally behave, rather than speculating as to how Caraballo himself would have behaved.

    Held

    The Court granted in part and denied in part Caraballo’s motion in limine to exclude certain testimony by Dr. Robert Rauschenberger.

    Key Takeaways:

    • The Court recognized Rauschenberger as a qualified “human factors expert” under Rule 702 based on his prior testimony in federal trials.
    • The Court allowed him to testify about how consumers like Caraballo may behave with or without warnings and instructions.
    • The Court, however, prohibited Rauschenberger from testifying that the incident was not foreseeable by Home Depot.
    • The Court rejected Rauschenberger’s attempt to speculate on how Caraballo specifically “would have” acted, limiting him to general opinions on how consumers in similar situations behave.

    Case Details:

    Case Caption: Caraballo V. Home Depot U.S.A Inc
    Docket Number: 3:21cv252
    Court Name: United States District Court, Connecticut
    Order Date: June 10, 2025
  • Architecture Expert’s Opinions on Causation and Damages Admitted

    Architecture Expert’s Opinions on Causation and Damages Admitted

    Plaintiffs Michael Gerstman and Marie Webster, the insureds, sued Defendant Crestbrook Insurance Company (“Crestbrook”), their insurer, to recover on contractual and extracontractual theories arising from Crestbrook’s denial of their claim in this storm damage insurance coverage dispute.

    Crestbrook filed a motion to strike the testimony of Plaintiffs’ experts, Dr. Neil Hall and Kevin Funsch.

    Architecture Expert Witness

    Neil B. Hall is the owner and principal of Groundtruth Forensics, a consulting firm specializing in building performance, failure analysis and damage assessment.

    Hall is a member of the American Institute of Architects, American Society of Civil Engineers, Structural Engineering Institute, Construction Specifications Institute, International Institute of Building Enclosure Consultants, American Society of Safety Professionals and Association of State Floodplain Managers.

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

    Insurance Adjuster Expert Witness

    Kevin C. Funsch is an insurance adjuster and engineer with a solid background in claims handling and estimating. He has experience in adjusting property losses, performing appraisals, and writing expert reports.

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

    Discussion by the Court

    Neil Hall

    Crestbrook filed a motion to strike Hall’s opinions on the basis that they are irrelevant, and it contended that his opinion regarding the full replacement of the roof should be excluded because it is unreliable and lacked a clear or verifiable methodology.

    Crestbrook first contended that Hall’s opinions should be excluded as irrelevant because there is no dispute as to the scope of the damages at issue in this case. Plaintiffs countered that Hall’s opinions on causation and damages will certainly help the trier of fact understand the cause and extent of the damages at issue in this case.

    Hall’s expert opinions suggested that there may be more damages at issue than Crestbrook is willing to acknowledge when it maintained that it was only obligated to pay the cost of replacing the individual damaged tiles.

    Therefore, the Court declared that Hall’s opinions regarding the cause of the damage would assist the jury in understanding the evidence and in determining a fact in issue.

    Crestbrook also contended that Hall’s opinions regarding the necessity of replacing the entire roof in the absence of available matching tiles are unreliable and not based on any clear or verifiable methodology. However, Hall’s report and CV plainly showed that his reliance on his experience makes his opinions on the repairs required to bring the Property back to pre-loss condition sufficiently reliable for purposes of Rule 702.

    And to the extent that Crestbrook maintained that Hall did not make “any effort to determine whether ‘matching’ tiles were available,” the Court held that this fact, if true, would not undermine the reliability of his opinion that the entire roof would need to be replaced if matching tiles were unavailable in sufficient quantity.

    Kevin Funsch

    Crestbrook contended that Funsch’s estimate and opinions related to the full replacement of the roof are irrelevant because they will not assist the jury in determining whether Crestbrook underpaid the claim.

    It maintained that they are unreliable insofar as they rely on Hall’s opinion that the roof may need to be completely replaced if there are not sufficient matching tiles with which to replace the damaged tiles.

    The Court disagreed with Crestbrook’s assertion that Funsch’s opinions and estimate are irrelevant because they will not assist the jury in determining whether Crestbrook underpaid the claim. This contention is based on Crestbrook’s position that it is not required to replace the entire roof under the Policy and that the estimated cost of replacing the roof is not relevant.

    Because there remains a genuine issue of fact as to whether Crestbrook was required to pay the cost of replacing the entire roof in the absence of the availability of matching tiles, the Court held that Funsch’s estimate regarding the cost of replacing the roof is relevant.

    Crestbrook contended that Funsch’s estimate and opinions related to the full replacement of the roof are unreliable insofar as they rely on Hall’s opinion that the entire roof may need to be replaced if there are insufficient matching tiles to replace the damaged tiles. However, Crestbrook did not maintain that Funsch has relied on unreliable sources in determining the cost to replace the roof.

    Instead, the objection seemed to be that Funsch included in his damages calculation the cost of replacing the roof based on Hall’s opinion that the entire roof may need to be replaced. However, the Court held that this does not make Funsch’s calculation unreliable for purposes of Rule 702.

    Held

    The Court denied Crestbrook’s motions to strike the testimony of Plaintiffs’ testifying experts Dr. Neil Hall and Kevin Funsch. 

    Key Takeaway:

    Hall relied on his own inspection of the property, as well as weather data. His attached CV demonstrates his extensive education and professional experience in engineering and architecture.

    By extension, Funsch’s estimate and opinions are reliable because they are based on Hall’s recommendations, which, in turn, are grounded in reliable weather data and decades of experience. The opinions are also relevant, as they help determine the cost of the repairs.

    Case Details:

    Case Caption: Gerstman Et Al V. Crestbrook Insurance Company
    Docket Number: 3:24cv635
    Court Name: United States District Court, Texas Northern
    Order Date: June 09, 2025
  • Recreational Vehicle Expert’s Cost-of-Repair Opinion Admitted

    Recreational Vehicle Expert’s Cost-of-Repair Opinion Admitted

    Naomi and Christopher Pershing (and their revocable Pecan Trust) sought compensation from Nexus RVs, LLC and Navistar, Inc. for their recreational vehicle, which they called defective.

    Nexus offered Thomas Fribley as an opinion witness. On March 14, 2025, the Pershings filed a motion to exclude an opinion from Fribley under Federal Rule of Evidence 702 and Daubert.

    Recreational Vehicle Expert Witness

    Thomas Fribley has over 28 years of experience with Coachmen Industries (another recreational vehicle company) where he held many roles in technical services, product evaluation, and sales. Since 2002, he has operated Fribley Technical Services, which offers expertise in RV inspections and technical services.

    He has been a certified master RV service technician since 1993 (a level four certification), and he has assisted in the design, manufacture, and repair of RVs and the training of others.

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

    Discussion by the Court

    Fribley intended to offer a cost-of-repair opinion. He testified that the RV’s diminished value corresponded to the estimated cost of repairs—approximately $6,000. His assessment was ostensibly based on the condition of the vehicle at the time of his inspection, rather than at the time of its acceptance. Given this difference in timing, the Pershings argued that the opinion should be excluded.

    The Pershings said that Indiana law limits damages for a warranty breach to “the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.”

    Nexus argued that Indiana law recognized several alternative means for calculating damages so long as they are reasonable, including the cost of repair. The Court agreed.

    The Court noted that the Pershings raised no doubts about his methods or bases. Moreover, the Pershings identified no late, extraneous, or prejudicial opinion of concern.

    Held

    The Court denied the motion to exclude the testimony of Nexus’ expert Thomas Fribley.

    Key Takeaway:

    A Court should exclude testimony unless it reliably speaks, without confusing or misleading the jury, on a relevant issue that the jury must decide. However, Fribley’s cost-of-repair opinion helped the jury decide an issue of consequence.

    Case Details:

    Case Caption: The Pecan Trust Et Al V. Nexus Rvs, LLC Et Al
    Docket Number: 3:22cv531
    Court Name: United States District Court, Indiana Northern
    Order Date: June 04, 2025
  • Accounting Expert’s Price Erosion Damages Opinion Admitted

    Accounting Expert’s Price Erosion Damages Opinion Admitted

    Plaintiffs Syntel Sterling Best Shores Mauritius Limited, and Syntel, Inc., (collectively, “Syntel”) initiated this action against The TriZetto Group, Inc. (“TriZetto”) and Cognizant Technology Solutions Corp. (“Cognizant,” and, collectively, “Defendants”), alleging breach of contract, intentional interference with contractual relations, and misappropriation of confidential information.

    Syntel filed a motion to exclude the price erosion damages opinion of TriZetto’s expert, Thomas W. Britven.

    Britven’s analysis proceeds in four steps: (1) estimating the average rates TriZetto would have charged absent Syntel’s challenged conduct, assuming annual increases in line with the Consumer Price Index based on Urban Consumers (“CPI”); (2) calculating the difference between projected revenue based on these rates and TriZetto’s actual revenue; (3) limiting the calculation to the six most impacted clients, and certain related clients, based on their share of revenue and (4) further narrowing the analysis work related to Facets, the product Syntel infringed, by applying the proportion of such work (70%) to TriZetto’s overall services.

    Accounting Expert Witness

    Thomas Britven has more than 30 years of experience as a financial damages consultant and trusted advisor specializing in intellectual property and complex commercial litigations.  He has served as an expert in over 600 matters.

    His long consulting career has allowed him to develop extensive expertise, including misappropriation of trade secrets, patent infringement, trademark, copyright, licensing disputes, complex financial damage analysis, breach of contract, business interruption, forensic accounting, and business valuation.

    Britven is a Certified Licensing Professional, Certified Public Accountant, Certified Valuation Analyst, Chartered Global Management Accountant, and a Certified Fraud Examiner. 

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

    Discussion by the Court

    Price Erosion

    The Court held that Britven’s methodology for determining price erosion damages was not unreliable, finding that the analysis presented a reasonable approach to estimating the hypothetical pricing absent infringing competition. The Court noted that Britven applied a benchmark TriZetto itself used for pricing and confined the impact to relevant clients and services.

    Syntel objected to Britven’s factual assumptions that (1) absent Syntel’s competition, TriZetto’s prices would have risen in tandem with the CPI and (2) 70% of TriZetto’s work is Facets-related. However, Britven based the assumptions on his interview of TriZetto’s Chief Executive Officer (“CEO”). TriZetto’s CEO stated, among other things, that (a) 70% of TriZetto’s total sales from TriZetto accounts [the parties dispute whether this is all accounts or only Facets accounts] comes from Facets services; (b) TriZetto increases its prices at the same rate as the CPI, but gave several major clients a three-year CPI holiday from annual price increases and (c) the rate reduction for major clients impacted the rest of the clientele. The Court held that the parties’ disagreement over factual assumptions “is precisely the role of cross-examination” not a basis for exclusion. 

    Price Elasticity

    The Court added that Syntel’s additional criticism that Britven’s analysis failed to address price elasticity concerned the weight, not the admissibility, of the testimony.

    Britven did address this issue by concluding, based on consumers’ past behavior, that the market was inelastic so long as TriZetto’s price increases continued to track the CPI.

    Causation

    Syntel further argued that Britven’s price erosion opinion omits any analysis of causation linking Syntel’s infringement with price erosion. However, Britven discussed the (1) the use of, and demand for the Facets platform by major healthcare players due to its complexity and customization; (2) the lack of acceptable alternatives to TriZetto before Syntel’s infringement; (3) TriZetto’s adequate staffing resources and (4) the quantified price erosion damages. Britven’s expert report explained that TriZetto and Syntel competed in a two-supplier market where one’s win is the other’s loss, which — if credited by the fact finder — established causation.

    Held

    The Court denied Syntel’s motion to exclude the price erosion theory presented by Thomas W. Britven.

    Key Takeaway:

    Although expert testimony should be excluded if it is speculative or conjectural, or if it is based on assumptions that are so unrealistic and contradictory as to suggest bad faith or to be in essence an apples and oranges comparison, other contentions that the assumptions are unfounded go to the weight, not the admissibility, of the testimony.

    Case Details:

    Case Caption: Syntel Sterling Best Shores Mauritius Limited V. The Trizetto Group, Inc. Et Al
    Docket Number: 1:15cv211
    Court Name: United States District Court, New York Southern
    Order Date: June 2, 2025
  • Economics Expert’s Testimony About Tivity’s Stock Price Drop Excluded

    Economics Expert’s Testimony About Tivity’s Stock Price Drop Excluded

    This securities fraud putative class action is based on allegations that Tivity, a publicly traded company, as well as various high-ranking executives, made false or misleading statements and omissions, and had a scheme to defraud investors regarding, facts material to both: the purported success of Tivity’s acquisition of Nutrisystem, Inc. (“Nutrisystem”) in Q1 of 2019 (“Nutrisystem Claim”); and the valuation of Tivity’s goodwill and the Nutrisystem tradename throughout 2019 (“Goodwill Claim”). 

    According to Lead Plaintiff, Defendants’ materially false or misleading statements and omissions on these issues led to significant losses in shareholder value when, on February 19, 2020, Defendants disclosed Tivity’s financial results for 2019 and forecasts for 2020, and announced the resignation of the Nutrition Segment’s President, Keira Krausz as well as the termination, without cause, of Tivity’s CEO, Donato Tramuto.

    Predictably, the effect (or lack thereof) of the allegedly fraudulent statements and omissions on the Corrective Disclosure and Tivity’s eventual decreased stock price is a central contested factual issue of this case. W. Scott Dalrymple sought to opine on the amount of loss Tivity shareholders experienced from Defendants’ scheme to defraud them, as well as their false and misleading statements and omissions, through evaluation of five items in the Corrective Disclosure.

    Defendants filed a motion to exclude the testimony of Dalrymple.

    Economics Expert Witness

    W. Scott Dalrymple is an economist specializing in quantitative valuation, econometrics, statistics, securities analysis, antitrust, financial markets, and intellectual property.

    Dalrymple has led numerous consulting, commercial litigation, and restructuring engagements on behalf of multinational companies, investors, financial institutions, and government agencies in the U.S., Europe, and Australia.

    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

    Dalrymple is supposed to analyze the impact of the Corrective Disclosure on Tivity’s stock price.

    Dalrymple’s Analysis

    First of all, Dalrymple assumed that Tivity’s stocks had been trading on a semi-strong form of an efficient market prior to Tivity’s release of the Corrective Disclosure on February 19, 2020. Then, Dalrymple conducted a market model event study by using a regression model to predict expected returns on Tivity’s stock during the event window (i.e., the day of the Corrective Disclosure).

    Tellingly, Dalrymple made no attempt to separate the varying purported causes of Tivity’s stock drop included in the Corrective Disclosure—to determine whether some, all, or none of that information was attributable to Defendants’ fraud. 

    Dalrymple explained this seemingly glaring omission in his analysis. He contended that isolating the effects of the five items in the Corrective Disclosure is unnecessary given all that information is within what Lead Plaintiffs believe to be the zone of risk of Defendants’ concealed fraud.

    The Court held that Dalrymple failed to both (1) bridge any connection between the alleged corrective information, Defendants’ fraud, and Tivity’s stock decline, and (2) apply any principled or economic method to support his conclusion that the items in the Corrective Disclosure did not constitute confounding information that required removal from his total damages calculation.

    Dalrymple Fails to Properly Analyze the “Corrective” Nutrition Segment Financial Disclosures

    The Court held that Dalrymple’s aggregation of the five items in the Corrective Disclosure (the Q4 and 2019 earnings results, Q1 and FY 2020 earnings guidance, impairments to Tivity’s goodwill and the Nutrisystem tradename, and the announcements of Tramuto’s termination and Krausz’s resignation) as a single bundle of new information, despite acknowledgement that some of the information implicated information beyond Defendant’s alleged fraud, demonstrated the issue with his approach. 

    Dalrymple made no effort to determine whether the Q4 and 2019 earnings results, Q1 and FY 2020 earnings guidance, and impairments to Tivity’s goodwill and the Nutrisystem tradename were actually “corrective.”

    Nor did he account for that some of that financial information—information that, according to Lead Plaintiff, made the stock price fall—had already been anticipated by the market based on prior disclosures that the Nutrisystem acquisition may prove unsuccessful. 

    Because Dalrymple knew the market already anticipated that the Nutrisystem merger may have failed irrespective of Defendants’ fraud, the Court held that his analysis “should have carefully considered whether other factors [other than Defendants’ alleged fraud] might have been at play” in causing Tivity’s stock price decline. 

    Dalrymple Fails to Properly Analyze the “Corrective” Executive Departure Announcement Disclosures

    Dalrymple’s treatment of Tivity’s executive departures revealed in the Corrective Disclosure is equally flawed. As with Dalrymple’s acknowledgement that Tivity’s financial information could contain non-fraud related information, he understood “that Tramuto’s eventual departure from the company may have been anticipated.”

    The Court held that Dalrymple’s analysis of the purported corrective disclosures announcing Tramuto’s termination and Krausz’s resignation suffers from another flaw: these items are, as a matter of law, not within the zone of risk of Defendants’ alleged fraud. There is no evidence in the record that Tivity’s announcements of Krausz’s resignation and Tramuto’s termination revealed any fraud perpetuated by Defendants.

    Because Dalrymple does not provide any bridge between his opinion that the announcement of Tivity’s executive departures had “limited, if any, negative impact” on Tivity’s share price and an analytical framework supporting that conclusion, the Court held that Dalrymple’s attempt to remove this non-fraud information from his equation is merely inadmissible ipse dixit.

    Dalrymple’s Demeanor at the Daubert Hearing Underscores Why His Opinions Should Be Excluded

    The shortcomings of Dalrymple’s analyses are compounded by his demeanor on the stand. Dalrymple has extensive experience as an expert in litigation. He has appeared as an expert at trials and hearings on nine prior occasions and has sat for twenty depositions.

    However, during one exchange with Defendants’ counsel, Dalrymple directly contradicted his prior deposition testimony that he it did not causally connect any alleged misstatements to any of the five items from the Corrective Disclosure he based his opinions on by attempting to assert the opposite during the Daubert hearing. While testifying is no doubt a stressful experience, even for those familiar with the courtroom, Dalrymple’s contradictory positions about such basic elements of his reports and the tone and tenor of his testimony further underscores the problems with Dalrymple’s testimony and opinions.

    Dalrymple’s Testimony and Opinions Are Inadmissible Under Rule 702

    In this case, Dalrymple ignored the possibility that a portion of the five items in the Corrective Disclosure did not relate to Defendants’ fraud, and he also chooses to ignore his own knowledge confirming as much. 

    He then failed to properly deploy any reliable methodology based on sufficient data about the market to analyze whether there were any non-fraudulent factors within the Corrective Disclosure contributing to a drop in Tivity’s stock.

    Because Dalrymple did not reliably determine whether the information he relied upon was corrective of Defendants’ fraud, and did not reliably calculate the loss in value, if any, of Tivity’s stock that was caused by only non-fraudulent factors, the Court held that his testimony is also unhelpful to the jury. 

    Held

    The Defendants’ motion to exclude W. Scott Dalrymple’s testimony was granted by the Court.

    Key Takeaway:

    By presuming that analysts had already priced in all goodwill, integration, and diet-season risks in the Nutrition segment, Dalrymple treats any price drop from the five items in the Corrective Disclosure as necessarily fraud-related. But he finds support of this assumption only in the stock drop itself. For this, and the reasons stated above, his lack of methodological reasoning in disaggregating the fraud and non-fraud information in the Corrective Disclosure raises several “red flags that caution against certifying an expert includ[ing] reliance on anecdotal evidence, improper extrapolation . . . lack of testing, and subjectivity.” 

    Case Details:

    Case Caption: Strougo V. Tivity Health, Inc. Et Al
    Docket Number: 3:20cv165
    Court Name: United States District Court, Tennessee Middle
    Order Date: May 15, 2025
  • Financial Expert’s Opinions on Value Added Promotions Admitted

    Financial Expert’s Opinions on Value Added Promotions Admitted

    This action is about holding Chargebacks911 (“CB911”), its CEO (Monica Eaton) and its former CEO (Gary Cardone) accountable for their roles in keeping a massive online Keto diet pill scam (the “Keto Racket”) profitable, viable, and undetected while it victimized Plaintiffs and tens of thousands of other consumers across the country.

    Troy Carrothers is Defendants’ rebuttal expert to Plaintiffs’ payment processing industry expert. Plaintiffs took issue with certain opinions given by Carrothers, including that “‘Value Added Promotions used by [Global e-Trading] before 2019 are commonly used marketing programs,” as well as statements that Plaintiffs maintain are impermissible legal conclusions. 

    Lisl Unterholzner, an accountant and certified fraud examiner, is Defendants’ rebuttal damages expert. Plaintiffs took issue with certain opinions given by and analysis performed by Unterholzner, including her discussion of a The Fulfillment Lab (“TFL”) spreadsheet with shipping addresses and her MID-by-MID and time-limited calculation of damages attributable to Global e-Trading.

    Financial Expert Witness

    Troy Carrothers is a financial services and retail leader with approximately thirty years of experience working in a variety of leadership roles in retail payments. These responsibilities have spanned operational leadership positions with responsibility for functions with small teams such as Risk Management or Financial Planning & Analysis in payment issuance and acceptance to leading multi-billion dollar retail credit and debit portfolios with thousands of employees.

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

    Accounting Expert Witness

    Lisl Unterholzner is the Managing Partner at Oscher Consulting, PLLC, a Certified Public Accounting firm. Unterholzner is a Certified Public Accountant (“CPA”) and has been accredited in Business Valuation by the American Institute of CPAs. She has also been accredited as a Certified Fraud Examiner. Her experience includes forensic accounting investigations, performing business valuations, and the analysis of economic damages.

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

    Discussion by the Court

    Troy Carrothers

    Plaintiffs sought to preclude Carrothers from “offering testimony on his general understanding of the term Value Added Promotions, or VAP, including how other companies in the industry may use the term.”

    The Court held that Carrothers’ testimony about his understanding of VAP used by other companies does not match the descriptions of Global e-Trading’s VAP program within Global e-Trading’s own internal documents. Moreover, Carrothers admitted during his deposition that he did not “know the details of [Defendants’] VAP program from when they ran it.”

    While the issues Plaintiffs pointed out give them ample ammunition for cross-examination, the Court decided that they still did not warrant disqualifying Carrothers from testifying as an expert.

    The Court also disagreed with Plaintiffs as to Carrothers’ statement that Global e-Trading “paused service several times” for Brightree. In other words, Carrothers is merely pointing out that Global e-Trading may have had pauses in its provision of services to Brightree, which is true and potentially relevant to Defendants’ defense regarding intent. The Court did not find this statement so irrelevant as to be kept from the jury.

    However, to the extent Carrothers intended to offer the legal conclusion that he has seen no evidence in the record to support that Defendants’ VAP program was fraudulent, the Court agreed with Plaintiffs.

    Lisl Unterholzner

    Plaintiffs sought to preclude Unterholzner from testifying about two subjects. First, they argued that Unterholzner should not testify “about whether any of the customer, email, or shipping data in the TFL Spreadsheet is valid” or offer “any opinions or conclusions about the deliverability of any shipment made by The Fulfillment Lab or the Keto Entities.” Second, they sought to prevent Unterholzner from “parsing or calculating damages in a way that is based on a piecemeal analysis of Defendants’ activities with respect to the overall Keto enterprise.”

    The Court disagreed with Plaintiffs. Because Unterholzner is a rebuttal expert, it is perfectly appropriate for her to question the documents upon which the Plaintiffs’ damages expert relied.

    To the extent Unterholzner intended to opine that Defendants can only be liable for damages incurred for certain times during which Global e-Trading was providing services to Brightree, the Court excluded that opinion as irrelevant.

    However, to the extent Unterholzner’s report and opinions addressed flaws in Plaintiffs’ expert’s damages calculation because of incomplete data, this opinion is permissible. Since this analysis is proper for a rebuttal expert, the Court will not exclude it.

    Held

    The Court granted in part and denied in part the motion to limit the testimony of Defendants’ experts Troy Carrothers and Lisl Unterholzner.

    Key Takeaways:

    • No witness may offer legal conclusions or testify to the legal implications of conduct.
    • Despite Plaintiffs’ legitimate questions, the supposed problems with Unterholzner’s methodology can be explored on cross-examination.

    Case Details:

    Case Caption: Sihler Et Al V. Global E-Trading, LLC
    Docket Number: 8:23cv1450
    Court Name: United States District Court, Florida Middle
    Order Date: May 16, 2025
  • Medical Billing Expert’s Testimony Regarding the Reasonable Value of the Medical Treatment Admitted

    Medical Billing Expert’s Testimony Regarding the Reasonable Value of the Medical Treatment Admitted

    This case arises from a traffic accident that occurred on December 21, 2022 at an intersection on U.S. Highway 98, involving an 18-wheeler and a Ford F-150 pickup truck.

    Cameron Thompson and his son, J.C., brought this action seeking damages, which included, among other things, past medical expenses for injuries sustained in the accident. 

    Defendants retained Nancy Michalski to opine on the “reasonable value” of Cameron’s medical treatment. Of the $40,440.00 billed for medical services provided to Cameron, Michalski opined that the reasonable value of such services is only $33,166.60.

    Plaintiffs contended that Michalski’s opinions are inadmissible because the methodology Michalski used to arrive at her opinions violates Mississippi’s collateral source rule and because the opinions are otherwise not relevant or reliable.

    Medical Billing Expert Witness

    Nancy Fraser Michalski provides clients with practical ways to improve efficiency, quality, and outcomes of their bodily injury claims and litigation, including medical bill auditing, comprehensive claim reviews, medical record reviews, and life care planning. Drawing on her extensive experience as a nurse and medical billing expert, Michalski developed a methodology for medical bill audits that has been endorsed by peer review, as well as a patent pending system for medical record analysis.

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

    Discussion by the Court

    Relevance

    Plaintiffs asserted that any testimony at all “about the so-called ‘reasonable value’ of Plaintiff’s medical bills are [sic] simply not referred to or a factual issue at dispute.”

    Given the Defendants’ right to rebut the “necessary and reasonable” presumption regarding evidence of medical bills, it seems clear that Michalski’s opinions may be relevant. Having reviewed the parties’ submissions, including Michalski’s report and affidavit, the Court found that Michalski’s opinions are indeed directed at the “reasonableness” of the amount of the medical bills by focusing on the charges themselves for the medical services rendered.

    It is through Michalski’s opinions that Defendants are attempting to rebut the presumption that the medical bills incurred were necessary and reasonable, and by reducing the charges, they would thereby reduce the amount recoverable on the medical bills.

    Therefore, the Court found that, because Michalski’s opinions would assist the jury in determining whether the medical bills paid or incurred were necessary and reasonable by focusing specifically on the amounts charged, the opinions were relevant. 

    Reliability

    Whether Michalski’s opinions violate the collateral source rule

    Mississippi’s collateral source rule bars a tortfeasor from reducing the damages it owes to a Plaintiff ‘by the amount of recovery the Plaintiff receives from other sources of compensation that are independent of (or collateral to) the tortfeasor.’”

    In other words any “compensation or indemnity for the loss received by Plaintiff from a collateral source, wholly independent of the wrongdoer, as from insurance, cannot be set up by the latter in mitigation or reduction of damages.” Typically, the rule bars a Defendant from introducing evidence that a Plaintiff has received payments from a collateral source to reduce that Defendant’s liability for the damages.

    Plaintiffs contended that Michalski’s opinions ran afoul of the collateral source rule. To be sure, Michalski’s ultimate opinion is that the reasonable value of the medical services rendered is less than the amount billed. However, she did not arrive at this opinion based on payments made on behalf of Plaintiffs either by insurance or Medicaid/Medicare or evidence in the form of write-offs or self-pay discounts.

    Her ultimate opinion is based on what is essentially a “sub-opinion” that some of the rates charged were too high. Defendants emphasized, and the Court agreed, that Michalski’s proposed testimony is not that Plaintiffs’ recovery should be reduced by payment from an independent source; rather, it is that the charges are not reasonable when ultimately compared to charges from other similarly situated providers. Because Michalski does not arrive at her opinions, as Plaintiffs contend, by deducting, or even considering, payments, gifts, or write-offs from third parties, the Court found that Michalski’s opinions, on their face, do not violate Mississippi’s collateral source rule.

    Whether Defendants have shown the opinions are otherwise reliable

    Plaintiffs claimed that Michalski “has not sufficiently established that her method for projecting these future costs is generally accepted in the relevant scientific community.”

    However, there is no opinion by Michalski as to future costs. She addresses only past medical treatment. Plaintiffs also argue that “Michalski’s methodology differentiates between expected charges for services as opposed to a reasonable value or actual cost to a patient.” While the meaning of this statement is a bit unclear, Plaintiffs never explain which part of Michalski’s report employs such methodology.

    The Court is left to speculate about the methodology’s unreliability because these general statements lack sufficient explanation.

    Critiques go to the weight not the admissibility of the opinion

    To begin with, Michalski used several nationally recognized sources to determine the reasonable value of the charges. She consulted multiple pricing databases including Physician’s Fee Reference, PMIC Medical Fees, Find-a-Code, and the American Hospital Directory, and then applied a geographic adjustment factor for the location where the services were provided and ultimately arrived at her opinion as to the reasonable value of the medical services rendered to Cameron.

    In their Reply, Plaintiffs assert that medical treatment is not a commodity or services that is like other goods or services. Plaintiffs claim that medical providers have their own system, “Chargemasters,” which establishes the prices for treatment provided. The Court cannot accept a bald assertion in a party’s brief as fact.

    Additionally, Plaintiffs complained that by comparing Cameron’s providers to other “unidentified” providers, Michalski failed to account for the quality of services, the cost of the services, or the continuity of care, making her opinion, a comparison of apples to “unidentified oranges.” The Court held that these critiques go to the weight not the admissibility of the opinion.

    Finally, Plaintiffs argued that numerous other courts have excluded experts who have used Michalski’s exact same methodology, citing several cases. Because Plaintiffs have misunderstood Michalski’s methodology, the Court cannot agree. 

    Held

    The Court denied the Plaintiffs’ motion to exclude the opinions by Nancy Michalski.

    Key Takeaways:

    • Michalski’s opinions would assist the jury in determining whether the medical bills paid or incurred were necessary and reasonable by focusing specifically on the amounts charged.
    • To address every case cited would seem to be an exercise in futility because “a district court has broad discretion to determine whether a body of evidence relied upon by an expert is sufficient to support that expert’s opinion.” This Court exercises its discretion here, and trusts that those courts did the same with what they were presented and reached the correct result.

    Case Details:

    Case Caption: Thompson Et Al V. Intermodal Cartage Co., Llc. Et Al
    Docket Number: 2:24cv34
    Court Name: United States District Court, Mississippi Southern
    Order Date: May 19, 2025