Expert Witness Profiler

Tag: Damages

  • Accounting Expert Witness’ Disgorgement Analysis Using Full Absorption Method Admitted

    Accounting Expert Witness’ Disgorgement Analysis Using Full Absorption Method Admitted

    Plaintiff Multiple Energy Technologies, LLC (“MET”) accused Under Armour of false advertising in relation to certain products that contain bioceramic powder. MET contended that Under Armour inaccurately claimed that the Federal Food and Drug Administration had determined that those products enhanced recovery.

    Under Armour sells activewear and sleepwear products directly to consumers. This includes the sale of products containing a competing bioceramic product known as Celliant, which is manufactured by Hologenix, LLC (“Hologenix”). Under Armour advertises these products separately from their other product offers and as helping to promote recovery, especially for athletes.

    Plaintiff MET brought four claims against Defendant Under Armour, Inc.: violation of the Lanham Act, violation of the Sherman Act, misappropriation of trade secrets; breach of non-disclosure agreement; tortious interference with contract; tortious interference with prospective business expectancies; unjust enrichment; unfair competition; conversion; a claim for an accounting; and a claim for injunctive relief.

    Under Armour retained Jerome Schmitt to rebut MET’s damages expert, Peter Wrobel. MET filed a motion to exclude the expert testimony of Under Armour’s accounting expert witness, Jerome Schmitt.

    Accounting Expert Witness

    Accounting Expert Witness

    Jerome B. Schmitt is a Certified Public Accountant (CPA) and is accredited in business valuation, certified in financial forensics, and a Certified Fraud Examiner.

    He has extensive experience in calculating damages—including claims for monetary relief in trademark infringement, false advertising, and other Lanham Act cases—and in the valuation of intellectual property, including trademarks and trade names. 

    Schmitt earned his Bachelor of Science in Business Administration in Accountancy from John Carroll University in 2000. He followed this with a Master of Business Administration degree from the same institution in 2002.

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

    Discussion by the Court

    Schmitt concluded that any disgorgement of Under Armour’s profits from the sale of Recover products would not exceed $151,162. This was based on several assumptions and methods, including the following:

    1. He assumed that the appropriate time frame for the disgorgement analysis spanned from July 1, 2017, to December 31, 2020.
    2. He applied the “full absorption” method and determined that certain costs qualified as appropriate deductions  for purposes of calculating the profits subject to disgorgement.
    3. He assumed factors beyond the alleged advertising, such as contributions from Under Armour’s brand value and advertising of the Recover products beyond the alleged false statements, should be taken into account in calculating profits subject to disgorgement.
    4. He used the relief from royalty method to discount damages due to Under Armour’s brand value.

    MET argued that Schmitt’s opinions:

    I. addressed topics beyond his qualifications.

    II. used unreliable methodology for calculating damages.

    III. presented a serious risk of confusing the jury and were unfairly prejudicial.

    The Court addressed each of these arguments.

    I. Schmitt has not opined on topics beyond his expertise

    MET claimed that Schmitt offered opinions that he was unqualified to give, regarding:

    (1) the appropriate time frame for measuring damages arising out of false advertising;

    (2) the value of Under Armour’s brand and how that value reduced the amount of profit realized from false advertising;

    (3) the impact of Under Armour’s advertisements beyond the alleged false statements; and

    (4) reasons as to why Under Armour would or wouldn’t enter into a contract with MET. 

    Time frame for measuring damages

    Based on evidence in the record and for the purpose of his analysis, Schmitt assumed that a potential disgorgement of Under Armour’s profits would be limited to sales of Recover products from July 1, 2017, to December 31, 2020.

    The Court found this assumption regarding the appropriate time frame perfectly acceptable. The Court observed that MET confused Schmitt’s assumption for calculating Under Armour’s profits attributable to false advertising as an opinion about marketing and advertising.

    It was held that his assumption about the appropriate time frame for measuring damages relied on evidence in the record. Specifically, it was based on responses to interrogatories indicating that Under Armour’s advertisements referencing the FDA had ended by March 2020. Additionally, the Court found that MET did not identify any specific instances of alleged false advertising after 2020. Therefore, the Court was held that the assumption was permissible.

    Brand valuation

    Schmitt opined that Under Armour’s brand contributed to Under Armour’s ability to make sales of Recover products. He applied the relief from royalty method to reduce Under Armour’s profits from the sale of Recover product by the value of the Under Armour brand.

    MET argued that Schmitt was not qualified to opine on Under Armour’s brand value or the impact that it had impact on profits. However, the Court disagreed.

    Given his qualifications as a CPA with extensive experience in calculating damages and the valuation of intellectual property, the Court found that Schmitt was qualified to opine on brand valuation and on how Under Armour’s brand and intellectual property contributed to the profit on sales of Recover products.

    Impact of Under Armour’s advertisements beyond the alleged false statements

    Schmitt opined that Under Armour’s advertisements for Recover products “contain additional language and concepts that are not alleged to be false advertising.” These included references to “fast recovery, the use of bioceramic powder, and the product’s functionality.” He stated that, assuming a finding of liability, it was appropriate to account for the contribution of such language relative to the alleged false advertising.

    Analysis

    To begin with, the Court found that Schmitt was qualified to opine on factors that could appropriately be considered as part of the disgorgement analysis. The Court found that, contrary to MET’s argument, Schmitt did not opine on the impact that the advertising at issue had on sales of particular products, particularly because he did not purport to calculate the amount of profits attributable to the effect of advertising that is not alleged to be false.

    When MET argued that Schmitt’s testimony on causation was inappropriate, the Court found that Schmitt stated in his report and deposition testimony that his analysis was based on “an assumption that there will be a finding of liability.” Schmitt further explained that, while the damages expert is not necessarily opining as to the liability of the alleged act, the damages expert cannot simply calculate damages that are untethered to the act.

    In conclusion, the Court found that Schmitt’s damages opinion “did not attempt to define the law applicable to the case.” Instead, the conclusions he drew in his report, such as the propriety of accounting for the effect of “positive” advertising when assessing profits for disgorgement, were based on his apportionment analysis under the Lanham Act.

    Schmitt merely opined that the disgorgement calculation could be further reduced by the profits that are not attributable to the alleged false advertising. To sum up, this fell into the category of “facts leading to a legal analysis,” not a “legal conclusion.”

    Analysis of Wrobel’s “reasonable royalty” calculation

    MET argued that Schmitt inappropriately opined on “reasons as to why Under Armour would or would not enter into a contract with MET.” However, the Court interpreted Schmitt’s report differently. Schmitt instead opined that Wrobel’s “reasonable royalty” calculation was speculative because of his assumption that, but for the alleged misconduct, Under Armour would have entered into an agreement with MET instead of Hologenix.

    Schmitt disputed this assumption by citing the record. He noted “a number of factors that influenced [Under Armour’s] decision to switch from” MET to Hologenix, “that are independent of the alleged false advertising or other alleged wrongful conduct.”

    The Court found that, in rebutting Wrobel’s expert report, Schmitt made permissible assumptions. In other words, these assumptions were “reasonably based on the evidence in the record.” It added that any weaknesses in the facts and assumptions underlying Schmitt’s opinion could be explored on cross-examination.

    II. Schmitt may use the full absorption method to calculate costs, but the Court will hold in abeyance its decision on the relief from royalty method

    A. Full absorption method

    To determine the profits available for disgorgement, Schmitt applied the full absorption method. This method “deducts costs that assist in the production, distribution, or sale of the products at issue, irrespective of whether or not such costs are considered fixed or variable.” After reviewing Under Armour’s financial reports and having a discussion with an Under Armour employee, he concluded that certain costs included in Under Armour’s selling, general, and administrative expenses contributed to the sales of the Recover products at issue. He then deducted these costs from the revenue on Recover products.

    MET argued that Schmitt’s use of the full absorption method was inappropriate because Under Armour would have incurred much of those fixed costs without selling the infringing product which is why the method failed to show that the costs and profits excluded from the disgorgement analysis were not attributable to the infringing product.

    The Court decided not to exclude Schmitt’s testimony applying the full absorption method. Generally, in trademark infringement cases, courts have used two methods for apportioning costs:

    a) The incremental approach “under which only direct costs of production are deducted.”

    b) the full absorption approach “under which overhead costs are apportioned to production of the infringing item.”

    According to the Court, MET was correct that, for a disgorgement analysis under the Lanham Act, the infringer “bears the burden of proving all elements of cost or deduction” and “has the burden to isolate the profits which are attributable to” the infringement.

    However, MET’s criticisms of Schmitt’s application of the full absorption method concerned the weight of his testimony, not its admissibility. The Court held that these criticisms should be addressed through cross-examination of Schmitt, a crucial part of which would be his decision to use the full absorption method.

    B. Relief from royalty method

    To value the contribution of Under Armour’s intellectual property to the sale of its products, Schmitt used the relief from royalty method. Under this method, he applied a “market-based royalty for the subject intellectual property at issue as a reasonable proxy for the profit or value it contributes to the sale of products that use the intellectual property.” 

    Basically, to establish what the applicable royalty rate would be for the Under Armour brand, he looked at one instance in which Under Armour licensed its name and logo to an apparel distributor, through which Under Armour received a 14% royalty of the net revenue of apparel sold with its name or logo. He then reduced Under Armour’s profits from the sale of Recover products by 14%, to reflect the royalty that Under Armour “was relieved from paying by virtue of owning its brand.” 

    MET argued that Schmitt’s use of the relief from royalty method was improper because a hypothetical royalty amount isn’t a proper deduction when evaluating Lanham Act damages.

    While Under Armour argued that “courts accept the apportionment of profits for contributions made by a Defendant in generating those profits,” it had not sufficiently established that the relief from royalty method had been subjected to peer review or that it is a generally accepted method for calculating proper costs or deductions in the Lanham Act context.

    While the novelty of Schmitt’s methodology was “not a per se reason for exclusion,” the Court lacked a basis to decide whether his methodology was sufficiently reliable. Therefore, the Court declined to rule on whether Schmitt’s testimony applying the relief from royalty method should be excluded. The Court intended to hold an in limine hearing, with Schmitt in appearance-as to the relief from royalty methodology and its reliability.

    III. The Court won’t exclude Schmitt’s report and testimony under Rule 403

    MET argued that based on the purported deficiencies, Schmitt’s testimony presented a serious risk of confusing the jury and prejudicing MET as per Rule 403.

    Balancing the probative value against the prejudice, the Court found that the probative value of Schmitt’s expert opinions was high. In other words, it was held that there was no danger of unfair prejudice. If any confusion or potential prejudice arose, the Court declared that it was open to curative jury instructions to assist the jury.

    Held

    The Court held that it would leave open the issue of whether Schmitt’s application of relief from royalty methodology is admissible under Rule 702. However, it denied MET’s motion to exclude expert Jerome Schmitt’s report and testimony in all other respects. 

    Key Takeaways:

    The Court denied MET’s motion to exclude Jerome Schmitt’s testimony in all other respects for three main reasons:

    1. Qualification and Expertise: The Court found that Schmitt did not exceed the scope of his expertise. His opinions regarding the timeframes, brand valuation, and advertising impact were all within his qualifications given his extensive experience in damages calculation and intellectual property valuation. The Court noted that Schmitt based his assumptions on evidence in the record and didn’t make impermissible legal conclusions.
    2. Methodology: The Court accepted Schmitt’s use of the “full absorption” method to determine the profits available for disgorgement. The Court viewed MET’s criticism of the method as a challenge to its weight, not its admissibility. It determined that cross-examination could address these issues.
    3. Rule 403 Balancing: The Court determined that Schmitt’s testimony had high probative value that outweighed any potential prejudice. Therefore, any risk of jury confusion could be addressed through curative jury instructions.

    Please refer to the blogs previously published about this case:

    Case Details:

    Case caption: Multiple Energy Techs., LLC v. Under Armour, Inc.
    Docket Number: 2:20cv664
    Court: United States District Court for the Western District of Pennsylvania
    Dated: January 13, 2025
  • Aquatics Expert Witness Barred From Opining On the Pool’s Design

    Aquatics Expert Witness Barred From Opining On the Pool’s Design

    Kyle and Annaleah Justice raised claims of negligence and strict liability against Defendants Bestway (USA), Inc. and Rural King under the Missouri Wrongful Death Statute. Plaintiffs’ claims arose from the drowning death of their minor daughter, E.M.J., in an above-ground pool on August 3, 2019.

    Plaintiffs designated Dianna Sullivan as an expert regard the impact of the death on Plaintiffs’ mental health; Peggy Shibata as an expert regarding the pool’s safety and design; and Dr. John Fletemeyer as an expert in aquatics.

    Bestway (USA), Inc. filed motions to exclude the opinions of Sullivan, Shibata  and  Fletemeyer.

    Mental Health Expert Witness

    Dianna Sullivan graduated from Nova Southeastern University with a Master’s degree in Psychology. She has been in public and private practice for 35 years. Her areas of specialty are family, marital, anxiety, depression, adjustment disorders, grief, bereavement, and chemical dependency.

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

    Mechanical Engineering Expert Witness

    Peggy Shibata holds a bachelor’s degree in mechanical engineering as well as master’s degrees in both mechanical and biomedical engineering. Shibata specializes in mechanical engineering and biomechanics, with particular expertise in accident reconstruction, rigid body dynamics, computational modeling and analysis, human injury tolerance, and injury analyses associated with transportation, recreational activities and equipment, and falls.

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

    Aquatics Expert Witness

    John Fletemeyer has a bachelor’s degree in anthropology and physical education from Ball State University. He holds post-graduate degrees from the University of Wisconsin and the University of Cape Town in South Africa. He has a doctoral degree from Florida International University with an emphasis on coastal science and education. Fletemeyer has “been continuously involved in aquatics for the past 50 years and [has] several professional certifications” related to lifeguarding, first aid, and water rescue. He is currently the executive director of the Aquatic Law Institute and the Aquatic Law Symposium Program. 

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

    Discussion by the Court

    The Sullivan Motion

    Sullivan, a Licensed Mental Health Counselor (“LMHC”), conducted phone interviews with Plaintiffs Kyle and Annaleah Justice “to evaluate the psychological process and circumstances that will help [her] understand the duration[,] severity and of [sic] symptoms (if any), to arrive at a diagnosis (if any), and to provide an expert opinion about the grief and bereavement process experienced by the family of the deceased . . . .”

    According to Sullivan, both Kyle and Annaleah Justice suffered from Post traumatic stress syndrome (“PTSD”), Major depressive disorder (“MDD”) and complicated grief and bereavement syndrome as a result of the sudden and tragic death of their daughter. Annaleah Justice was also diagnosed with an anxiety disorder.

    Bestway USA challenged the admissibility of Sullivan’s opinions because she did not perform any formal diagnostic tests on Plaintiffs before arriving at her conclusions.

    Bestway USA asserted that Sullivan’s testimony is about Plaintiffs’ grief and bereavement, a form of damages that is specifically precluded under Missouri’s wrongful death statute. To sum it up, Sullivan’s opinions are not the result of reliable principles or methods and would not be helpful to the jury. 

    Analysis

    The Court found that Sullivan “followed the same procedures that [she] use[s] in [her] practice when conducting an intake” and she specifically followed the “Shea (1998) protocol.” Sullivan did not rely on the Plaintiffs’ previous mental health records because, as she explained, there were none. The report she has produced applies her analysis of Plaintiffs’ symptoms to the diagnostic criteria provided by the DSM-5, a procedure that further supports the finding that she used a reliable methodology to form her opinions in this case. Moreover, Sullivan’s testimony is relevant and admissible for the jury to assess “the reasonable value of the services, consortium, companionship, [and] comfort” that resulted from Plaintiffs’ loss of their daughter.

    Bestway USA argued that Sullivan’s opinions did not address the loss of companionship, comfort, counsel, and support and instead focus explicitly on grief and bereavement. The Court will not take such a limited view of the overall value of Sullivan’s opinions in assisting the jury. However, Sullivan will be required to express her opinions within the context of the damages permitted by the statute and may not expressly testify regarding grief or bereavement.

    The Shibata Motion

    Shibata planned to testify to the following:

    Opinions 1-6

    1. According to the recorded statements, police investigation, and medical findings, 31-month-old [E.M.J.] was found face down in the subject Bestway above ground pool after apparently using the nylon strap and side of the pool to climb into the water.

    2. The nylon strap and climbability of the subject pool wall resulted in [E.M.J.] gaining access to the pool water.

    3. Access to filled pools by small children leading to drowning is a well-known hazard in the pool industry as evidenced by standards and guidelines related to pool barriers and publications authored by the safety community related to preventing child drownings.

    4. The circumferential horizontal strap on the subject pool creates a foothold, reducing the vertical distance to the top of the pool, and making the pool wall noncompliant with the requirements for a conforming barrier.

    5. The subject pool design is defective and unreasonably dangerous due to the climbability of the pool wall.

    6. The instructions provided in the subject pool’s owner’s manual do not clearly inform the user that the pool wall is not a conforming barrier and that a separate conforming barrier other than the pool wall must be provided by the user.

    Opinions 10-15

    10. Bestway (USA) failed to perform any hazard identification for the subject pool design, prior to, or after, the sale of the subject pool.

    11. Bestway (USA) failed to perform any risk assessment for the subject pool design, prior to, or after, the sale of the subject pool.

    12. Bestway (USA) failed to perform any testing to identify potential design defects related to the climbability of the subject pool wall prior to, or after, the sale of the subject pool.

    13. In the subject pool owner’s manual, Bestway (USA) failed to properly and explicitly instruct the Justice family and other users that since the nylon strap can be used as a foothold, an additional barrier to the subject pool is required.

    14. Bestway (USA), through the language provided in the owner’s manual, gave the Justice family a false sense of security and implied to them that they did not need to construct an additional barrier surrounding the subject pool because the pool wall itself could be a barrier.

    15. Bestway (USA) knew, or should have known, that the pool wall was not a proper barrier because of the nylon strap foothold.

    Analysis

    Bestway offered several arguments why Shibata’s opinions should be excluded, including that they are “not based on sufficient facts or data, . . . do not have a reliable basis in accepted principles and methods, nor has she applied those principals to the specific facts of this case, . . . and would not serve to help the jury reach a decision in this matter.” 

    As an initial matter, because the Court has granted summary judgment for Bestway USA as to Plaintiffs’ negligence claims, some of Shibata’s opinions are no longer relevant.

    In particular, opinions relating to Bestway USA’s duty and breach are no longer at issue. Shibata’s Opinions 3, 10, 11, 12, and 15 relate directly to the issue of Bestway USA’s alleged duty or knowledge of the pool’s potential dangers. Because Plaintiffs will no longer need to establish these elements of negligence, these opinions will no longer be helpful to the jury and could mislead the jury as to Bestway USA’s duties. 

    Opinion 1

    The Court held that Opinion 1 is inadmissible because it is a simple statement of fact that does not require expert testimony. 

    Testimony from witnesses at the scene and the conclusions in the Warren County Sheriff’s Report can establish the facts included in Shibata’s Opinion 1 without her testimony. While Shibata may testify regarding her reliance on those statements and perhaps the conclusions in the Report in forming her conclusions, she cannot testify to them in the form of opinion. 

    Opinion 2

    Plaintiffs have failed to establish by the preponderance of the evidence that Shibata’s Opinion 2—that the nylon strap and the climbability  of the pool wall resulted in E.M.J. gaining access to the pool—is based on sufficient facts and data and is the result of a reliable application of a methodology. Shibata is an expert in engineering, biomechanics, product safety, and accident reconstruction, among other topics related to human factors. To form this opinion, Shibata appeared to have relied on the testimony of other witnesses, the police and incident reports following E.M.J.’s death, E.M.J.’s medical records, and reports from saferproducts.gov indicating other instances of toddlers climbing into or attempting to climb into other similarly designed pools.

    She did not testify that these are the types of facts and data she would generally rely upon to form opinions about biomechanics, engineering, product safety, accident reconstruction, or human factors analysis. While she stated that she “employed the scientific method as a framework,” Plaintiffs have not come forward with any other evidence of how Shibata applied the scientific method to the issues of this case. 

    Shibita evaluated E.M.J.’s climbing abilities using only her intuitive understanding of children’s general climbing abilities, and she has been unable to identify a scientific methodology she used to arrive at her conclusion. 

    Opinion 5

    The Court held that Opinion 5 is admissible because Shibata has an expertise in engineering and is offering her engineering opinion regarding the safety of the pool’s design. She is also an expert in product safety generally and can testify using this experience that this pool’s design, specifically as it relates to the nylon support strap, is unreasonably dangerous. Shibata reviewed relevant safety standards regarding above-ground pools and has concluded that the nylon support strap makes the pool’s wall climbable and therefore ineffective as the sole barrier preventing young children from entering the pool.

    Opinions 4, 6 and 13

    The Court held that Opinion 4 pertains to whether the nylon strap constitutes a foothold and therefore makes the pool wall a non-conforming barrier. Opinions 6 and 13 are substantially the same in that they both state that the pool’s owner’s manual failed to inform consumers that the pool wall included a foothold via the nylon support strap, thus making it a non-conforming barrier and requiring the consumer to construct an additional barrier around the pool to make it safe.

    Plaintiffs have met their burden to establish that that Opinions 4, 6, and 13 are admissible. According to the Court, Shibata has extensive experience in the field of product safety analysis. As stated above, in assessing whether the pool’s wall was a conforming barrier or whether the nylon support strap created a foothold, Shibata read several sets of pool safety standards and determined that the measurements of the pool and pictures of the nylon support strap indicate that the nylon support strap was a foothold and therefore the pool’s wall was not a conforming barrier.

    Opinion 14

    The Court held that Opinion 14 about the pool’s warnings that gave Plaintiff’s a “false sense of security and implied to them that they did not need to construct an additional barrier” will be excluded because it is directly contradicted by other testimony.

    Shibata, during her deposition, was confronted with Justice’s deposition testimony where he testified that he and Flake had discussed putting an additional fence around the pool. She admits that she had previously reviewed this testimony and that Justice, in this testimony, described a desire to put an additional barrier around the pool. Shibata did not explain how she could have reliably arrived at her conclusion that Justice had a “false sense of security . . . they that did not need to construct an additional barrier” when he testified to his intention to construct such a barrier. Additionally, there is no evidence in the record that Justice or the Flakes read the pool’s warnings. 

    The Fletemeyer Motion

    Fletemeyer offered the following opinions:

    Opinions 1-6

    [1.] The fatal drowning of [E.M.J.] was preventable.

    [2.] The proximate cause of this fatal drowning was the nylon support strap surrounding the pool’s perimeter. Being only 14.5 inches from the ground, it conveniently provided [E.M.J.] with a foot hold allowing her to climb over the pool’s edge and into the water[.]

    [3.] If not for the nylon strap, a toddler of [E.M.J.]’s size and age wouldn’t have been able to gain access into the pool and drown.

    Considering that Kyle Justice, the father of the victim, had earlier removed the ladder from the pool, this was the only possible way the victim entered the pool.

    [4.] Detective Jeff Doerr observed a child’s footprint near the nylon strap. He concluded that the footprint likely belonged to [E.M.J.] and that the nylon strap was how she managed to get into the pool.

    [5.] Without the ladder and without the nylon strap. It would not have been possible for [E.M.J.] to climb over the edge of the pool and drown.

    Consequently, any allegation by the defense that the victim entered the pool differently is not supported by the facts.

    [6.] The nylon support strap circling the pool represents a serious design flaw responsible for making the pool inherently dangerous especially to young children the victim’s age.

    Opinions 7-9

    [7.] The fact that there has been similar fatal drownings and near drownings prior to this one where children used the nylon strap as a foot support, this indicates a wanton and conscious disregard for the safety of this product by its manufacturer.

    [8.] There are none of the contributing events mentioned earlier in this report that would indicate that this was a passive drowning event. As such, my opinion is that this was an active drowning and consequently, [E.M.J.] experience [sic] horrific pain and suffering before becoming unconscious, progressing from clinical death to biological death.

    [9.] Kyle Justice, the father, states in his deposition . . . that earlier he had removed the ladder from the pool. Consequently, he reasonably believed that the pool was safe.

    Analysis

    Bestway USA argued that Fletemeyer’s opinions should be excluded because they are not based on sufficient facts or data, are not the result of a reliable application of a methodology to the facts, and would not help the jury. Bestway USA stated that Fletemeyer failed to personally conduct an investigation into the scene of the drowning, and therefore does not base his opinions on sufficient facts or data.

    Opinion 7

    The Court held that Fletemeyer’s Opinion 7, that the pool’s manufacturer acted with wanton and conscious disregard for the safety of the pool, will be excluded because it is no longer relevant to the issues in this case. As stated above, the Court has already granted summary judgment in favor on Bestway USA on the issue of Bestway USA’s alleged negligence and as to punitive damages. Because this opinion relates specifically to the issue of Bestway USA’s knowledge of the pool’s danger—and thus to punitive damages—it will be excluded.

    Opinion 1

    The Court held that Opinion 1 will be excluded because it is simply not helpful to the jury. While it is likely true that this tragic drowning was preventable, nothing about this opinion will help the jury to decide an issue in this case. 

    Opinions 2 and 6 

    The Court held that Fletemeyer’s Opinions 2 and 6 will be excluded. In Opinion 2, Fletemeyer intended to testify that the pool’s nylon support strap was the “proximate cause” of E.M.J.’s death. Similarly, in Opinion 6, Fletemeyer intended to testify that the inclusion of the nylon support strap in the pool’s design renders the design defective. Fletemeyer is an expert in drowning, not pool design or human factors. He has no expertise that permits him to form opinions regarding the design of the pool or the ability of E.M.J. to enter the pool via the nylon support strap.

    Additionally, Opinion 6 can also be excluded because it is unnecessarily cumulative. Shibata, an engineering and product safety expert, intended to testify regarding the pool’s design and the nylon support strap and its potential as a foothold. Having Fletemeyer provide essentially the same testimony would be unnecessarily cumulative, especially given that he lacks the necessary expertise to render such an opinion. 

    Opinions 3 and 5

    The Court held that Opinions 3 and 5 are essentially the same opinions and will both be excluded because they are outside of the realm of Fletemeyer’s expertise. In them, Fletemeyer has concluded that the pool’s nylon support strap acted as a foothold by which E.M.J. was able to access the pool, and that this was the only way E.M.J. could have accessed the pool while the ladder was removed.

    As already stated, Fletemeyer does not have any special training or experience related to accident reconstruction or human factors that would permit him to arrive at this conclusion. It appears that Fletemeyer arrived at these conclusions by simple inference based on the Warren County Sheriff’s Report and Justice’s deposition testimony. Such testimony will not be helpful to the jury because the jury could also make the same inference when confronted with the Report and Justice’s testimony.

    Opinion 4 

    The Court held that opinion 4 will be excluded because it is not an opinion but is instead a statement of facts that can be established by other means. Again, what is contained the Warren County Sheriff’s Report and the opinion of Detective Doerr is not a matter for opinion testimony. 

    Opinion 9

    The Court held that Opinion 9 will be excluded for two separate reasons. First, like Opinion 4, the first sentence of Opinion 9 regarding what Justice testified to will be excluded because it is simply a statement of fact that requires no expert opinion. Second, whether Justice believed the pool was safe after removing the pool’s ladder is not relevant to the remaining issue in this case. Only two of Plaintiffs’ claims remain against Bestway USA: strict liability design defect and strict liability failure to warn. Justice’s subjective belief regarding the pool’s safety after he removed the ladder is not relevant to either of these claims and will not help the jury to decide any remaining issues. The Court excluded Fletemeyer from testifying to his Opinion 9.

    Opinion 8

    Plaintiffs have established by the preponderance of the evidence the relevance and reliability of Fletemeyer’s Opinion 8, so the Court denied Bestway USA’s Motion as to this opinion. Fletemeyer is qualified through his extensive experience to testify regarding drowning events and the physiological process of drowning. Fletemeyer arrived at his conclusion through analysis of the drowning event and by consulting his previous, extensive study of the drowning process, a field in which he has published extensively.

    Held

    • The Court denied the Defendant Bestway USA’s motion to exclude the opinions of Dianna Sullivan.
    • The Court granted in part and denied in part the Defendant Bestway USA’s motion to exclude the opinions of Peggy Shibata.
    • The Court granted in part and denied in part the Defendant Bestway USA’s motion to exclude the opinions of John Fletemeyer, PhD.

      Key Takeaway:

      Despite her extensive experience in the field of product safety analysis, Shibata’s opinions about the pool’s warnings was excluded because it was directly contradicted by other testimony. Moreover, Fletemeyer intended to testify that the inclusion of the nylon support strap in the pool’s design renders the design defective. The Court held that Fletemeyer is an expert in drowning, not pool design or human factors. Having Fletemeyer provide essentially the same testimony as Shibata would be unnecessarily cumulative.

      Please refer to the blogs previously published about this case:

      Case Details:

      Case Caption: Kyle Justice V. Bestway USA, Inc. Bestway USA, Inc.
      Docket Number: 4:22cv50
      Court: United States District Court, Missouri Eastern
      Order Date: December 30, 2024
    1. Economics Expert Witness Allowed to Opine on Educational Loss 

      Economics Expert Witness Allowed to Opine on Educational Loss 

      Plaintiffs Jennifer Le Pape (“Mother”) and Frederic Le Pape (“Father”) (collectively, “Parents”), on behalf of their child, Alexandre Le Pape (“Alex”), and Alex, individually, (collectively, “Plaintiffs”) brought intentional discrimination claims against Defendant Lower Merion School District (the “District”), alleging that the District failed to take appropriate steps to ensure that communications with Alex were as effective as communications with others and failed to provide Alex with the appropriate auxiliary aids and services necessary to afford Alex an equal opportunity to participate in and enjoy the benefit of various school services and programming.

      Alex is a nonspeaker. He learned to communicate using a letterboard and communication support person (“letterboard”). The District precluded Alex from using a letterboard and communication partner at school.

      Plaintiffs filed a motion to preclude the opinions of Dr. Howard Shane, an anticipated expert witness for the District who will opine on the “effectiveness and appropriateness of using the method known as Spelling to Communicate (S2C) with Alex LePape.”

      In response, the District filed a motion to preclude the opinions of Chad Staller, an anticipated expert witness for Plaintiffs who will opine on the damages that Plaintiffs incurred for Alex’s past and future educational services and the future costs for Alex’s psychiatric treatment, and all evidence of educational loss.

      Speech-Language Pathology Expert Witness

      Howard Shane has been a practicing and licensed Speech Language Pathologist for 49 years. The vast majority of his professional life has been spent working with individuals who are non-speaking as a result of autism, cerebral palsy, or intellectual impairment. He holds a Master’s degree and a Doctoral degree in Speech Pathology with a minor in Developmental Psychology and Audiology. For his doctoral work, he specialized in neurogenic speech problems. Moreover, he completed a Doctoral Fellowship at the Mayo Clinic in Rochester, Minnesota, where he worked with patients who experienced severe motor speech disorders, including Apraxia of Speech.

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

      Economics Expert Witness

      Chad L. Staller JD, MBA, MAC, CVA serves as the president of the Center for Forensic Economic Studies and holds extensive experience collaborating with both plaintiff and defense counsel across various civil cases. His expertise involves quantifying losses sustained by diverse plaintiff profiles, including union members, government employees, business proprietors, and injured children. Staller specializes in evaluating claims related to employment discrimination, encompassing calculations of back-pay, front-pay damages, and lost benefits. Additionally, he frequently provides consultation on commercial issues, analyzing claims associated with lost profits and business interruptions. Staller has a substantial record of testifying in jury trials, bench trials, and arbitrations within state and federal court settings.

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

      Discussion by the Court

      Chad Staller

      Motion to Preclude the Expert Testimony of Chad Staller and All Testimony and Evidence of Educational Loss

      The District contended that because it has been judicially determined that the District provided Alex with a free appropriate public education (“FAPE”) and is not entitled to recover compensatory education or tuition reimbursement under the Individuals with Disabilities Education Act (“IDEA”), Plaintiffs cannot recover educational loss damages under the Americans with Disabilities Act (“ADA”) or the Rehabilitation Act, which renders Staller’s opinions as to those damages irrelevant under Rule 401 and unfairly prejudicial under Rule 403. 

      Basically, evidence of educational loss is relevant to establish the specific compensatory damages that Plaintiffs seek. Accordingly, the Court denied the District’s motion with respect to evidence of Plaintiffs’ educational loss, including Staller’s opinions as to the amount of educational loss damages Plaintiffs incurred.

      Staller’s testimony on future medical care damages

      To begin with, the District argued that Plaintiffs are not entitled to recovery of emotional distress damages under the ADA or the Rehabilitation Act, which rendered Staller’s opinions as to those damages irrelevant under Rule 401 and unfairly prejudicial under Rule 403. 

      The Supreme Court held in Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 142 S. Ct. 1562, 212 L. Ed. 2d 552 (2022), that emotional distress damages are not recoverable in private discrimination actions brought under the Rehabilitation Act.

      The Court is not convinced by Plaintiffs’ argument that the non-educational loss damages that they seek—payment of Alex’s future psychiatric treatment expenses—are not emotional distress damages and, therefore, are still recoverable.

      The vast majority of district courts confronted with this issue in the wake of Cummings have held that mental health treatment costs constitute emotional distress damages because they stem from emotional distress as the underlying injury. 

      Therefore, the Court found that Plaintiffs are precluded from recovering Alex’s future psychiatric treatment expenses, as these fall into the category of emotional distress damages that are not recoverable under the ADA and the Rehabilitation Act.

      The Court granted the District’s motion with respect to Staller’s opinions as to the projected cost of future psychiatric treatment for Alex.

      Howard Shane

      Plaintiffs argued that because Shane’s opinions are not based on any analysis of “Alex’s communication with a letter board and communication partner,” they are irrelevant under Federal Rule of Evidence 401. Alternatively, Plaintiffs argued for the preclusion of Shane’s opinions under Federal Rule of Evidence 403 because these opinions “would invade the province of the jury, offering an opinion as to the credibility of [Alex’s] testimony with the letter board.”

      The Court held that Shane’s opinions are relevant to the material factual issues of the efficacy of a letterboard and communication partner for Alex, the efficacy of other communication supports that the District provided to Alex, and the District’s knowledge when it refused to permit Alex to use S2C at school at least in part due to the perceived lack of supporting scientific research.

      Moreover, Plaintiffs’ contention that Shane did not base his opinions on any “personal interactions” with Alex or investigations of “authorship with Alex’s use of the letter board” is not entirely accurate, as Shane indicates in his affirmative report that he compared the “content of [Alex’s] work produced independently with [his] work produced with the assistance of a facilitator.”

      Also, considering that Plaintiffs will offer their own expert opinions as to the efficacy of Alex’s use of S2C as a means of communication and the significance of a communication partner for Alex, the Court found that Plaintiffs will not be unfairly prejudiced, and the jury will not be confused or misled, by the introduction of Shane’s contrasting opinions.

      However, the Court precluded Shane’s opinions to the extent they relate to human rights violations, including violations of the United Nations Conventions on the Rights of Persons with Disabilities, because such opinions are impermissible legal conclusions and unfairly prejudicial and confusing to the jury. 

      Held

      1. The Court granted in part and denied in part Plaintiffs’ motion in limine to preclude opinions of Howard Shane.
      2. The Court granted in part and denied in part Defendant’s motion in limine to preclude the testimony of Chad Staller.

      Key Takeaway:

      • The Court did not find that the probative value of Shane’s opinions is substantially outweighed by the dangers of unfair prejudice because the Plaintiffs will offer their own expert opinions as to the efficacy of Alex’s use of S2C as a means of communication and the significance of a communication partner for Alex.
      • Also, Staller’s opinions as to the amount of educational loss damages Plaintiffs incurred is relevant to establish the specific compensatory damages that Plaintiffs seek and are entitled to recover for their ADA and Rehabilitation Act claims.

      Case Details:

      Case Caption: J.L. Et Al V. Lower Merion School District
      Docket Number: 2:20cv1416
      Court: United States District Court, Pennsylvania Eastern
      Order Date: December 30, 2024
    2. Accounting Expert Witness’ Testimony on Damages Admitted Because it Includes Independent Analysis

      Accounting Expert Witness’ Testimony on Damages Admitted Because it Includes Independent Analysis

      Plaintiff American Power, LLC (“AMP”) is a trucking-logistics company headquartered in Dayton, Ohio. According to the Complaint, Plaintiff invested in and loaned $450,000 to Defendant Dektrix LLC, a transportation-servicing company headquartered in Utah. The Complaint charges that the investment and loan were fraudulently obtained and ultimately worthless.

      Plaintiff sought to impose liability upon Dektrix and various other business entities and individuals for purported violations of federal securities laws and state common law.

      Dektrix sought to exclude Randall S. Kuvin, CPA, ABV, CFF as an expert. Dektrix presented two arguments in their motion to exclude the testimony of Kuvin: (A) AMP failed to comply with Fed. R. Civ. P. 26; and (B) Fed. R. Evid. 702 and Daubert bars the expert’s testimony.

      Accounting Expert Witness

      Randall Kuvin has been with Flagel Huber Flagel almost 40 years and served as Managing Partner until 2023. Though he works across all aspects of business, Kuvin brings significant depth of experience and expertise in the areas of Business Valuation, Litigation Support, and accounting specific to the Real Estate industry.

      Examples of his expertise include determining values of businesses for the purposes of asset division in divorce or other disputes as well as providing forensic analysis to determine income for purposes of spousal support or contract/damage matters.

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

      Discussion by the Court

      A. Failure to Comply with Fed. R. Civ. P. 26

      To begin with, Dektrix claimed that AMP failed to comply with Rule 26 by not stating the opinions of each author of the damages study; not disclosing the compensation of the expert; failing to supplement the expert’s list of testimony; and not supplementing the expert report.

      In response, AMP disclosed Kuvin’s compensation to opposing counsel, supplemented the expert’s list of testimony, and shared an updated expert report that included a higher damages number (when actual numbers were used) than the original report. AMP provided Dektrix with this supplemental information on November 20, 2024.

      Courts within the Sixth Circuit weigh five factors to determine whether a party’s noncompliant disclosure was substantially justified or harmless:
      (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party’s explanation for its failure to disclose the evidence.

      The surprise to the party against whom the evidence would be offered

      Basically, Dektrix claimed it would be surprised by which expert will testify, Kuvin or Terry L. Yoho, or both. Trial is about a month away, and testimony from Kuvin in AMP’s case-in-chief may necessitate some adjustment’s to Dektrix’s trial strategy, but Dektrix should not have been surprised that Kuvin would testify as an expert because AMP provided the 2022 damages study in February 2022—well before the original disclosure deadline—and Dektrix could have deposed Kuvin, which it did not.

      Therefore, the Court held that Dektrix’s attempt to recast this as a situation where AMP never provided an expert report, or that it had no idea who would testify, is misguided. Instead, Dektrix should not have been surprised Kuvin would provide expert testimony on his 2022 damages study nor does Dektrix cite any case law suggesting surprise to a party occurred in analogous circumstances.

      The ability of the party to cure the surprise and the disruption on the trial

      Dektrix emphasized that AMP had not provided compensation, an updated curriculum vitae (“CV”), and supplemental information in support of the 2022 Damages Report.

      The Court held that this emphasis is misplaced because AMP cured any surprise about Kuvin’s compensation and CV on November 20, 2024 (almost two months before trial), which gives Dektrix sufficient time to prepare cross-examination on these two issues, if it so chooses.

      Regarding the supplemented report on the damages AMP allegedly incurred after December 31, 2021, the Court agreed that AMP should have supplemented the 2022 damages study sooner, and if AMP had, it might have been able to recover higher damages. As such, AMP may use the 2022 damages study in connection with Kuvin’s expert testimony but may not use the supplemental damages information AMP provided on November 20, 2024.

      The importance of the evidence

      As Dektrix even acknowledges, “[i]n a contract dispute where speculative lost profits are sought, expert testimony is helpful to aid the factfinder.” Moreover, the Court reiterates that the 2022 damages report was not tardy. As such, and given the revealing damages information it contains, Kuvin’s expert testimony on his 2022 damages study constitutes important evidence.

      The nondisclosing party’s explanation for its failure to disclose the evidence

      AMP acknowledges that it did not supplement its 2022 damages study, provide Kuvin’s compensation, or update Kuvin’s CV before the discovery deadline. Basically, it did not offer a compelling explanation for its failure to comply with the Court’s discovery deadlines. AMP did acknowledge it has cured all three deficiencies two months before trial.

      Absent a compelling justification, the Court held that AMP’s failure to comply with the discover deadline weighs in favor of excluding Kuvin’s testimony.

      Although the fifth factor favors exclusion, the Court concluded that it does not overcome the other factors.

      B. Federal Rule of Evidence 702 and Daubert

      Dektrix claimed that the expert’s testimony is not based on sufficient facts or data; the testimony is the not the product of reliable principles and methods; and the expert’s testimony does not reflect a reliable application of the principles and methods.

      However, the Court found that Kuvin’s testimony is sufficiently reliable and relevant to the issue of damages to survive Dektrix’s motion to exclude. Also, it appears that Kuvin’s testimony includes independent analysis that would be helpful to the trier of fact in understanding the damages that AMP asserts. Additionally, Dektrix’s arguments regarding the reliability of Kuvin’s testimony relate more to the weight and credibility that the trier of fact will give to Kuvin’s testimony rather than the reliability of his methodology.

      Held

      The Court denied Dektrix motion to exclude the testimony of Randall S. Kuvin.

      Key Takeaways:

      • First, expert testimony on lost profit damages is admissible if it is helpful to the trier of fact in understanding a damages claim. In a contract dispute where speculative lost profits are sought, expert testimony is helpful to aid the factfinder.
      • Second, AMP’s late supplement was substantially justified or harmless, and Kuvin’s expert testimony was limited to his 2022 damages study rather than the more recently-supplemented report.

      Case Details:

      Case Caption: American Power, LLC V. Harris Et Al
      Docket Number: 3:17cv347
      Court: United States District Court, Ohio Southern
      Order Date: December 23, 2024
    3. Accounting Expert Witness’ Testimony Excluded Because He Makes No Effort to Distinguish Lost Profit Damages

      Accounting Expert Witness’ Testimony Excluded Because He Makes No Effort to Distinguish Lost Profit Damages

      It all started when GE and X-Ray contracted for the acquisition, sale and purchase of certain equipment and services required to outfit a nuclear radiopharmaceutical laboratory—the first of its kind in Jamaica.

      X-Ray later accused GE Entities of breaching their duties of care to X-Ray and breaching various components of the operative agreement– the International Finance and Sales Agreement (“IFSA”) as well as certain warranties.

      X-Ray has disclosed a damages expert, Andre Sutherland, to testify primarily as to lost profits, and also as to “remediation costs” and “acquisition costs.”

       On April 22, 2021, the Court granted GE’s motion to strike from X-Ray’s pleadings its request for lost profits damages, and found that lost profits damages were barred by the parties’ principal agreement, the IFSA. Accordingly, GE now seeks to strike Sutherland on grounds that his testimony would not be relevant because it pertains primarily to X-Ray’s stricken, lost profits damages. Separately, GE argued that Sutherland’s testimony, even if it survives the lost profits argument, is not the product of reliable principles and methods.

      Accounting Expert Witness

      Andre O. Sutherland is a Fellow Certified Chartered Accountant (FCCA), by the Association of Certified Chartered Accountants a Chartered Business Valuator by the CBV Institute (formerly the Canadian Institute of Chartered Business Valuators and an Accredited Senior Appraiser (ASA) by the American Society of Appraisers. He holds 14 years of professional experience including more than ten years of valuation experience.

      Want to know more about the challenges Andre O. Sutherland has faced? Get the full details with our Challenge Study report. 

      Discussion by the Court

      Lost Profits

      Sutherland’s opinion centered on X-Ray’s lost profits due to its laboratory and equipment allegedly malfunctioning. To calculate those lost profits, Sutherland took X-Ray’s 2013 business plan; determined the projected customers over a six-year period; calculated the cost per PET/CT scan to determine revenues; subtracted expenses from those revenues; and compared those projected revenues to the actual revenues. Sutherland then generated two final numbers: one calculated as the most-likely scenario, and one calculated with a 50% weight for a worst-case scenario.

      GE raised a myriad of alleged issues with Sutherland’s report. These include arguments that: Sutherland’s report relies entirely on X-Ray’s own 2013 business plan; he did not know who created that business plan and he did no independent market research about relevant market rates or industry costs.

      The Court held that Sutherland failed to distinguish (1) which lost profits damages were caused by negligence (let alone each distinct and independent theory of negligence that X-Ray alleges) versus (2) which lost profits damages were caused by breaches of contract, breaches of warranty, and/or other factors. 

      Moreover, Sutherland’s report does not account for what portion of X-Ray’s lost profits are attributable to GE’s alleged negligence, as compared to GE’s alleged contract breaches, as compared to factors entirely unrelated to GE (e.g., a competitor, COVID-19 regulations, or internal factors).

      It is noteworthy that X-Ray does not present any compelling authority or argument to explain why Sutherland’s opinion would still be reliable and helpful notwithstanding the report’s failure to divvy up blame.

      Remediation Costs and Acquisition Costs

      GE sought to exclude Sutherland’s anticipated testimony regarding acquisition and remediation costs, as GE believes such testimony does not required specialized knowledge. Remediation costs are, according to GE, the combined price of the equipment X-Ray purchased from GE.

      The Court held that no expertise is required for X-Ray to explain to the trier of fact its purchase price for equipment (i.e., its “acquisition costs”). Indeed, to add up X-Ray’s composite purchase price, there is no need to affirmatively “exclude expenses which are unrelated” to that cost. Rather, X-Ray’s lay witnesses and lawyers can simply identify each purchase price, add them up, and present the final number.

      As to remediation costs, GE argued that Sutherland simply relayed a number ($208,000.00) which “Management indicated” was incurred “to rectify the Quality Control Lab.” GE argued that expert testimony is not required because Sutherland did not calculate this amount, break down this amount, configure this amount, or even verify this amount; rather, he simply repeated a number that “management” provided to him.

      X-Ray responded that “Sutherland extracted and articulated, only those costs incurred by X-Ray which accounted for costs of the equipment and costs incurred to attempt to remediate the equipment or create work-arounds.”

      But X-Ray cited to no portion of Sutherland’s report in which he “extract[s]” remediation costs from any portion of the record that he was provided. To the contrary, Sutherland testified in his deposition that “[a]ccording to management, they did in fact incur at least $208,000.00 on remediation expenses.” 

      The Court held that GE has thus presented uncontroverted evidence that Sutherland’s testimony as to remediation costs imports no expertise, but instead is a recitation of a figure provided by management.

      Held

      The Court granted GE’s motion to exclude the testimony of Plaintiff’s expert Andre Sutherland. He cannot testify at trial as to lost profits, as to “acquisition costs,” or as to “remediation costs.”

      Key Takeaways:

      • Sutherland’s testimony is fatally flawed and cannot be resurrected because he not present any basis to, at minimum, distinguish lost profit damages that indisputably arise from the contract.
      • Sutherland presents a report that presents lost profits figures that apparently factor in: GE’s negligence; GE’s breaches of contract and numerous other factors and considerations. In that report, Sutherland makes no effort to isolate what portion of the lost profits were caused by GE’s negligence. And because X-Ray’s surviving negligence claims are the only claims for which X-Ray now seeks lost profits, Sutherland’s testimony is unreliable and unhelpful to a trier of fact who seeks to determine what damages were caused by GE’s negligence. 
      • The Court held that no expertise is required for X-Ray to explain to the trier of fact its purchase price for equipment (i.e., its “acquisition costs”). Thus, on this score, Sutherland’s calculation constitutes “simple arithmetic” which “is not beyond the understanding of the average lay person and therefore would not help the trier of fact.”

      Case Details:

      Case Caption: X-Ray Diagnostics And Ultrasound Consultants Limited V. General Electric Company Et Al
      Docket Number: 1:20cv24492
      Court: United States District Court, Florida Southern
      Order Date: December 6, 2024
    4. Insurance Expert Witness’ Estimate Excluded Because Unknown Contractors Collected the Data

      Insurance Expert Witness’ Estimate Excluded Because Unknown Contractors Collected the Data

      Plaintiffs Gregory Hebbler and Marion Hebbler contracted with Defendant State Farm Fire and Casualty Company to insure their home located at 6009 Angler Drive, Picayune, Mississippi.

      On August 29, 2021, Hurricane Ida made landfall, purportedly damaging the residence. When Defendant conducted an on-site inspection and estimated the monetary damage caused by Hurricane Ida, it issued no payment because this figure fell below Plaintiffs’ deductible.

      Plaintiffs ultimately designated Rich Lyon as their sole expert witness, referencing a June 7, 2023, Estimate as his report, but they did not attach this Estimate to their designation. On July 1, 2024, almost three months after their expert designation deadline had passed, Plaintiffs submitted a supplemental designation, disclosing Lyon’s Supplemental Report.

      On August 19, 2024, Defendant filed the instant motion to strike Plaintiffs’ expert witness Rich Lyon.

      Insurance Expert Witness

      Rich Lyon is a licensed State of Louisiana Public Insurance Adjuster and Registered Insurance Appraiser. He is the owner and operator of Gulf Coast Adjusting, LLC. Gulf Coast Adjusting, LLC is a Louisiana-licensed and bonded company offering Public Adjusting, Insurance Claims Appraising, Insurance Claims Umpiring and Construction Estimating services throughout the states of Louisiana and Mississippi.

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

      Discussion by the Court

      A. Lyon’s reports

      1. The June 7, 2023, Estimate

      The June 7, 2023, estimate offered by Plaintiffs as Lyon’s initial expert report contains only damage estimates and includes no narrative language, explanations, or opinions as to causation. The Estimate valued the damage to Plaintiffs’ property at $144,661.05, with no amount specified for depreciation. The Estimate is based on a June 5, 2023, inspection that was conducted by an independent contractor hired by Lyon.

      2. The Supplemental Report

      In his supplemental report, Lyon for the first time offered an opinion as to causation, stating that Hurricane Ida caused the damage to Plaintiffs’ residence. This opinion is based upon “on-site inspections of the subject property, interviews with the property owner, . . . documentation provided to [him], [his] extensive work related to hurricanes [and] windstorms, and [his] accumulative experience in the construction and insurance industries gained over the past 25 years.”

      Lyon conducted an inspection of Plaintiffs’ property on June 24, 2024, which resulted in him revising the June 7, 2023, damage estimate downward to $75,707.42, again with no deduction specified for depreciation.

      B. Defendant’s Motions

      Defendant asked the Court to exclude the June 7, 2023, estimate because it was made by unknown independent contractors, such that the Court cannot test the reliability of its factual underpinnings or methodologies. Next, the Court should strike the supplemental report because it is not supplemental, but is in fact a new report, and was produced by Plaintiffs over two and half months after the expert designation deadline.

      1. Defendant’s challenge to the June 7, 2023, Estimate offered as Lyon’s expert report

      Defendant argued that Plaintiffs’ timely June 7, 2023, estimate is unreliable because it offered no causation opinions and because unknown independent contractors collected the data underlying the estimate and did the majority of the work creating it.

      Lyon affirmed under oath that both the inspector and estimators’ identities are protected by nondisclosure agreements, and he would not reveal them. Since Plaintiffs have not identified who conducted the inspection or created the Estimate, neither Defendant nor the Court can test the reliability of the data and methods employed in repairing it. On this record, Plaintiffs cannot meet their burden of showing that the bases and methodologies underlying the estimate are reliable, and the Court therefore rejected the June 7, 2023, estimate.

      2. Lyon’s Supplemental Report offering causation opinions

      Defendant next challenged Lyon’s supplemental report, disclosed after Plaintiffs’ expert designation deadline but prior to the close of discovery.

      It should be noted that Lyon’s supplemental report relies upon information gathered by an unknown independent contractor during the June 7, 2023, inspection, Lyon’s own inspection conducted on June 24, 2024, documentation provided to him, and interviews with Plaintiffs. With the exception of Lyon’s inspection, this information was available to Plaintiffs well before the expert designation deadline of April 9, 2024, and Plaintiffs have not offered any explanation why Lyon could not have conducted his inspection before the deadline. For these reasons, the Court concluded that the supplemental report is not supplemental but is in fact a new expert report, such that it could and should have been disclosed by April 09, 2024.

      Four factor analysis under Rule 37 to determine the proper sanction

      Starting with the fourth factor, the explanation for the failure to comply with the Court’s deadlines, Plaintiffs justify the late disclosure by stating that they paid out-of-pocket to repair their roof in July 2023.

      But Plaintiffs do not explain how the completion of these repairs prevented them from timely disclosing the supplemental report or why, if there was an issue, it could not be resolved in the nine months between the completion of repairs and the designation deadline of April 9, 2024.

      The third factor is the possibility of a continuance. This, according to the Court, weighs in favor of Defendant because the case is scheduled for Pretrial Conference next month and a continuance would only further delay this case, in essence rewarding Plaintiffs for failing to timely disclose the supplemental report without any justifiable explanation.

      The first factor is the importance of the witness’ testimony. Without Lyon, Plaintiffs cannot meet their burden of showing causation and Defendant will be entitled to summary judgment. But even where the expert testimony is significant, “the importance of such proposed testimony cannot singularly override the enforcement of local rules and scheduling orders.”

      Turning to prejudice, Lyon had the benefit of possessing Defendant’s expert report when he prepared the supplemental report, and Defendant’s expert’s ability to prepare his own report was impeded by not having access to Lyon’s supplemental report. Defendant would also be required to expend time and financial resources to prepare a response to Lyon’s new causation opinion, causing further prejudice. On balance, the Court held that this factors weigh in favor of excluding the supplemental report.

      The circumstances of this case warrant striking the Supplemental Report

      Plaintiffs argued that Defendant waived the right to challenge Lyon’s expert designation by failing to file its motion thirty days before the discovery deadline.

      The Court found that Plaintiffs attempted to frame Defendant’s argument as a challenge to the initial expert designation, when in fact Defendant is contending that the supplemental report itself introduces new expert testimony and is therefore not supplemental. This would mean that Defendant would have had to file its challenge to Plaintiffs’ disclosure no later than five days later. It would be unfair to permit Plaintiffs to violate their deadline for disclosing expert reports by almost three months, and then penalize Defendant for failing to file its motion to strike by the deadline because Plaintiffs served the supplemental report mere days before it passed.

      Held

      The Court found that Defendant’s motion to strike should be granted as to Plaintiffs’ expert Rich Lyon, and he will be excluded from testifying at trial. The
      Court also granted Defendant’s motion for summary judgment because Plaintiffs cannot make the requisite showing as to causation. Plaintiffs Gregory Hebbler and Marion Hebbler’s claims were dismissed with prejudice.

      Key Takeaways:

      • The Court excluded June 07, 2023, estimate offered as Lyon’s expert report because unknown independent contractors did the majority of the work creating it as a result of which the Court cannot test the reliability of its factual underpinnings or methodologies.
      • The supplemental report offered by Lyon is not supplemental but is in fact a new expert report, such that it could and should have been disclosed by April 09, 2024. It should be noted that Lyon’s supplemental report relies upon information gathered by an unknown independent contractor during the June 7, 2023, inspection, Lyon’s own inspection conducted on June 24, 2024, documentation provided to him, and interviews with Plaintiffs. With the exception of Lyon’s inspection, this information was available to Plaintiffs well before the expert designation deadline of April 9, 2024, and Plaintiffs have not offered any explanation why Lyon could not have conducted his inspection before the deadline.

          Case Details:

          Case Caption: Hebbler Et Al V. State Farm Fire And Casualty Company
          Docket Number: 1:23cv247
          Court: United States District Court, Mississippi Southern
          Order Date: December 18, 2024
          1. Psychiatry Expert Witness’ Opinions on the Sufficiency of the County’s Suicide Prevention Policies and Training Admitted

            Psychiatry Expert Witness’ Opinions on the Sufficiency of the County’s Suicide Prevention Policies and Training Admitted

            This case arises from the in-custody death of Joseph Morton (“Morton”) at Vista Detention Facility (“VDF”). Morton was arrested for attempted robbery and booked at VDF on May 11, 2020, one day after release from a 5150 hold. Morton committed suicide six days later, on May 17. Plaintiffs allege medical care claims under 42 U.S.C. § 1983 and state law theories claiming that Morton should have been designated as “high risk” for suicide and placed in a safety cell in Inmate Safety Program (ISP) housing.

            Defendants County of San Diego, Hosanna Alto, and Janine Sparks (“County Defendants”) claimed that they did not violate Morton’s civil rights. Mental health clinicians (MHC) Hosanna Alto and Janine Sparks were accused of being deliberately indifferent to Morton’s suicide risk.

            County Defendants have filed two Daubert motions: they sought to exclude certain opinions offered by Plaintiffs’ experts Dr. Jeffrey Metzner, and Dr. Kaycea Campbell.

            Psychiatry Expert Witness

            Jeffrey Metzner is a licensed medical doctor who has been engaged in clinical and forensic psychology since 1978. From 1980 to 1981, Metzner served as Chief of Psychiatry at Colorado State Penitentiary and he served as a consulting psychiatrist to the National Prison Project and the United States Department of Justice for 30 to 40 years, respectively. He has published numerous newsletters, books, book chapters, and peer reviewed journal articles, including on the topics of mental health and psychiatry in prisons.  Between 1989 and 2022, he served as an expert in 178 cases.

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

            Economics Expert Witness

            Kaycea Campbell is an economist with a Ph.D. from Claremont Graduate University, a Master of Arts in Economics from the University of Southern California, and a Bachelor of Science in Economics from the University of the West Indies. Campbell is a tenured economics professor at Pierce College and is also the Department Chair for a multidisciplinary Political Science, Economics, Administration of Justice, and Chicano Studies unit. She has worked as a professional economic researcher for about twenty (20) years during which time she has published articles on economic analyses associated with loss of income and calculated and researched issues such as the recovery of damages for lost profits, wrongful death, personal injury, and intellectual property damages. She has served as an economics expert in thirteen (13) cases since 2014. 

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

            Discussion by the Court

            Motion to Exclude Metzner’s Opinions

            1. Mental Health Clinician Standard of Care Opinions

            Metzner opined that the care provided to Morton by various mental health and medical professionals at VDF fell below the standard of care. According to County Defendants, although Metzner is a licensed psychiatrist, he has no experience in supervising MHCs in a correctional setting and has not received formal training in the MHC standard of care.

            The Court is not persuaded by this argument. Metzner has some thirty (30) years of experience in correctional psychiatry as well as extensive academic and research experience in correctional psychiatry and mental healthcare. Further, it is noteworthy that Metzner has served as a court-appointed expert in numerous cases. 

            2. Opinions re MHC Alto

            County Defendants challenged Metzner’s specific opinions that MHC Alto: (1) did not obtain records regarding Morton’s recent hospitalization; (2) made the improper assumption that because he was released from the 5150 hold, there was no significant safety risk; and (3) that if MHC Alto had obtained the records from Morton’s recent hospitalization, “they would have figured out he was still suicidal.”

            a. Records from Prior Hospitalization

            Metzner opined that “[i]t was below the standard of correctional mental healthcare to not, at least, attempt to obtain information regarding Morton from the Alvarado Parkway Institute/BHS as part of the gateway assessment process” because “obtaining such information would have demonstrated that Morton was not a reliable historian and that he omitted significant factors leading to his very serious suicide attempt.” 

            The Court is satisfied that Metzner possesses the necessary qualifications and relevant experience to testify that the standard of care for QMHPs performing an ISP assessment would include requesting prior suicide-related hospitalization records.

            b. Improper Assumption

            County Defendants challenged Metzner’s opinion that MHC Alto’s assessment fell below the standard of care because she improperly assumed that following his 5150 hold release, he posed no significant safety risk.

            According to County Defendants, MHC Alto did not rely on any assumptions in completing the ISP assessment, as confirmed by her deposition testimony.

            The Court noted that there appears to be no opinion offered by Metzner about any assumptions MHC Alto made during her ISP assessment.

            It was held that Metzner’s opinion in this respect is, by his own admission, only relevant if MHC Alto made an assumption regarding the 5150 hold release during her ISP assessment of Morton. As such, to the extent Plaintiffs put forth evidence that MHC Alto made such an assumption during the ISP assessment, Metzner may testify that, in his expert opinion, relying on such an assumption contributed to the reasons her care fell below the acceptable standard. But if Plaintiffs fail to offer evidence that MHC Alto relied on this assumption, or any assumption regarding Morton’s release from the 5150 hold, during her ISP assessment, Metzner cannot, and seemingly does not, offer an opinion in this respect.

            c. Causation

            County Defendants also take issue with Metzner’s opinion “that if Alto had obtained Morton’s Alvarado Parkway Institute (“API”) Records, it would have made a difference for Morton here because, according to Metzner, Morton’s medical history as provided by him to VDF medical staff was not consistent with information in the API records.”

            The Court held that Plaintiffs can put forth evidence of the 5150 hold records and Metzner can opine that MHC Alto’s care was substandard for her failure to obtain these records. But ultimately, it is up to the jury to determine the import of these records and opinion testimony—for example, whether MHC Alto would have or should have done anything different, including whether she would have concluded Morton was suicidal, had she obtained and reviewed these records.

            3. Opinions re MHC Sparks

            County Defendants challenged Metzner’s opinion regarding MHC Sparks’ failure to complete Morton’s 24-hour ISP follow-up assessment. The Court held that Metzner’s opinion as to the reasoning behind why MHC Sparks did not perform the follow-up assessment appears to be based wholly on speculation and not any reliable methodology or specialized experience.

            County Defendants also challenged two opinions Metzner offered during his deposition as beyond the scope of his report. First, Metzner opined that the nature of Morton’s phone conversations with girlfriend and mother were much more suicidal related to the conditions to confinement. He felt that a 24-hour assessment was necessary.

            The Court agreed that this opinion appears to be beyond the scope of Metzner’s expert report. However, the Court is not persuaded that it should be excluded on this basis alone. In this case, County Defendants do not explain how they have been prejudiced by Metzer’s failure to include this opinion in his written report. In any event, the record is clear that his failure to do so was harmless because County Defendants had sufficient time and ability to question Metzner on this opinion when he raised it during his deposition. 

            County Defendants also challenged an opinion Metzner made on page 67 of his deposition. The record is devoid of page 67 of Metzner’s deposition transcript. Without the benefit of the evidence County Defendants seek to exclude, the Court cannot determine whether it is subject to exclusion.

            4. Policies & Training

            County Defendants asked the Court to exclude Metzner’s opinions on the sufficiency of the County’s suicide prevention policies and training. 

            Metzner further opined during his deposition that the  the ISP “assessments were not very standardized and really varied depending on who the clinician was doing it.” 

            It should be noted that Metzner has ample experience in correctional mental healthcare including suicide prevention programs, policies, and training in the correctional setting. And here, Metzner identifies the policies he reviewed prior to coming to this conclusion.Thus, he adequately explains the basis for his opinion, and the Court is satisfied that his opinion is sufficiently reliable.

            5. Opinions re Nurse Macanlalay

            According to Metzner, “[t]he decision by Samantha Macanlalay RN on 5/11/2020 that a release of information for outside healthcare records was not indicated was problematic in the context of a very recent psychiatric hospitalization following a serious suicide attempt. Obtaining such information would have assisted in the suicide risk assessment process.”

            County Defendants sought to exclude Metzner’s opinions about Nurse Macanlalay as irrelevant because she has since been dismissed from this lawsuit. 

            The Court agreed with County Defendants that Metzner’s opinion that Nurse Macanlalay’s assessment was “problematic” is not probative of any fact or issue in this case.

            6. Summary of Records

            Finally, County Defendants challenged Metzner’s summary of the record in his report. According to County Defendants, this evidence is impermissible because his summary paraphrases the evidence and is incomplete.

            To the extent Metzner’s report includes an unadorned regurgitation of the facts, evidence, and/or record in this case, the Court held that his opinion and testimony is impermissible.

            County Defendants also specifically challenged Metzner’s summary of the Citizens’ Law Enforcement Review Board (“CLERB”) report, State Auditor’s report, Critical Incident Review Board (“CIRB”) reports, and Disability Rights California (“DRC”) report.

            As to the CLERB report summary, the Court agreed that Metzner’s evidence is subject to exclusion. Metzner quoted a portion of the report and comments that a statement contained therein is inaccurate based upon evidence elsewhere in the record. This opinion does not appear to be based on any expertise or particular experience, and a factfinder does not need any specialized knowledge to review two documents and determine whether they are inconsistent.

            A review of Metzner’s summary of the State Auditor’s report, reveals no opinions or other commentary— Metzner simply summarizes the report and its findings. The Court held that it is impermissible.

            Turning to the CIRB reports, Metzner indicated that he reviewed reports from January 2015 to August 2019 and opines on the adequacy of these reports and that there are “common themes” between the prior incidents and the issues he identifies as connected to Morton’s suicide. The Court is satisfied that, if relevant, this opinion is reliable and based on Metzner’s experience and qualifications.

            Finally, as with his summary of the State Auditor’s report, Metzner merely restates part of the DRC report. The Court held that this evidence is subject to exclusion as unreliable and improper.

            Motion to Exclude Campbell’s Opinions

            To suggest that Morton’s estate is not a party to this litigation is inaccurate

            Campell offers her opinion on Plaintiffs’ economic damages based upon Morton’s income projections, personal consumption, and household services as well as other costs attributed to his wrongful death. 

            First, County Defendants asserted that Campbell’s report estimates the value of Morton’s hypothetical future estate as the value of wrongful death damages, but that “Morton’s estate, should one exist, is not a Plaintiff in this litigation.” 

            To suggest that Morton’s estate is not a party to this litigation is inaccurate. The Court held that County Defendants appear to misapprehend the distinction between wrongful death claims and survival claims and their related damages. Damages for a wrongful death claim are personal to those who survive the decedent whereas damages for claims that survive death are personal to the decedent. For wrongful death claims, i.e., where heirs or survivors can recover their own damages based upon the death of their loved one, a Plaintiff may recover both economic and noneconomic damages.

            A review of Campbell’s report reveals that her opinions fall squarely within the realm of permissible wrongful death damages evidence and that she does not improperly include damages particular to Plaintiffs as individuals. And because Plaintiffs press a wrongful death claim, this evidence is relevant assuming they can prove liability.

            Campbell calculated Morton’s earning potential based upon various factors and variables

            County Defendants asserted that Campbell’s opinions are unreliable. The Court disagreed. Campbell calculated Morton’s earning potential based upon various factors and variables.

            She also considered his past history of work. And she sufficiently explained and supported the basis for her calculations. Her ultimate conclusion is that, based upon these variables, Plaintiffs’ damages range from $495,702.17 to $1,082,185.53 if Morton was single with no children, which he was at the time of his death. The Court is satisfied that Campbell’s opinion is based upon a reliable methodology and that County Defendants challenges goes to the weight of Campbell’s evidence, which they can attack on cross-examination. 

            Held

            • The Court granted in part County Defendants’ motion to exclude the expert opinions and testimony of Dr. Jeffrey Metzner.
            • The Court denied County Defendants’ motion to exclude the expert opinions and testimony of Dr. Kaycea Campbell.

            Key Takeaway:

            Metzner has ample experience in correctional mental healthcare including suicide prevention programs, policies, and training in the correctional setting but his opinion regarding MHC Sparks’ failure to complete Morton’s 24-hour ISP follow-up assessment appears to be based wholly on speculation and not any reliable methodology or specialized experience. 

            Also, Campbell arrived at Morton’s earning potential based upon various factors and variables after considering his past history of work. And she sufficiently explains and supports the basis for her calculations. 

            Case Details:

            Case Caption: Morton Et Al V. County Of San Diego Et Al
            Docket Number: 3:21cv1428
            Court: United States District Court, California Southern
            Order Date: December 16, 2024
          2. Testimony of Family Medicine Expert Witness on the Issue of Damages Declared a Nullity

            Testimony of Family Medicine Expert Witness on the Issue of Damages Declared a Nullity

            A patient brought a health care liability action against his psychiatrist and the psychiatrist’s employer, alleging the psychiatrist engaged in improper sexualized conduct that caused him psychological injury.

            Plaintiff Tray Simmons is a survivor of childhood rape which he experienced in 2010. Simmons alleged that Dr. Shahidul Islam encouraged him to read the chapter of his book Layers aloud in which he described the 2010 rape while Islam visibly touched himself, made physical contact with Simmons, and backed Simmons into the corner of the office.

            Plaintiff’s expert, Sherri Studstill, gave conflicting testimony relating to the issue of damages.

            In her affidavit, Studstill asserted that “[t]here is evidence that Simmons suffered monetary and mental health harm as a result from either the alleged events occurring in Islam’s office or the documented events from the recorded [phone] calls.”

            However, during her deposition, Studstill said that she “didn’t go into damages” and that she only believed damages for emotional distress were “possible” based on Simmons’s allegations, the opinion said.

            Family Medicine Expert Witness

            Sherri Studstill is a licensed physician who has a background practicing in Family Medicine, Emergency Medicine, Occupational Medicine, Sports Medicine, and Urgent Care Medicine, and holds a Masters in Public Health Degree with a focus on Behavioral Science and Health Science.

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

            Discussion by the Court

            Relying on the cancellation rule, the trial court determined a conflict existed between the Studstill’s affidavit and deposition testimony relating to the issue of damages.

            The trial court concluded that Studstill’s deposition testimony triggered the cancellation rule and invalidated her earlier opinions related to Simmons’s alleged damages.

            The judge cited 2019 Tennessee Supreme Court case law in TWB Architects v. Braxton , which established that when a witness makes contradictory statements, “those statements cancel each other out and are considered to be ‘no evidence’ of that fact.”

            Appellate Judge Jeffrey Usman cannot find error in the trial court’s analysis in the present case, applying the cancelation rule and rendering Studstill’s testimony on the issue of damages a nullity.

            Held

            The Court held that Sherri Studstill’s testimony on the issue of damages was inadmissible.

            Key Takeaway:

            Studstill indicated in her affidavit that as an expert she had concluded that Simmons had suffered damages as a result of Islam’s negligent professional conduct. In her deposition, however, Studstill disclaimed any such conclusion. She indicated that damages were a possibility but that she had not made any determination that Simmons had suffered any actual damages. As to the question of whether Studstill offered expert testimony as to damages, these statements are contradictory. Critically, no admissible explanation from Studstill was offered addressing the contradiction. Therefore, the appellate court cannot find error in the trial court’s analysis in the present case, applying the cancelation rule and rendering Studstill’s testimony on the issue of damages a nullity.

            Case Details:

            Case Caption: Tray Simmons V. Dr. Shahidul Islam Et Al.
            Docket Number: M2023-01698-COA-R3-CV
            Court: Court of Appeals of Tennessee at Nashville
            Order Date: December 03, 2024
          3. Occupational Medicine Expert Witness’ Testimony As to the Causation of the Subject Incident Admitted

            Occupational Medicine Expert Witness’ Testimony As to the Causation of the Subject Incident Admitted

            This lawsuit involves an alleged slip and fall in the Petco Store. Plaintiff, Lisa Brune alleged multiple injuries caused by the slip and fall and sought damages for same.

            Plaintiff complained that Petco failed to adhere to this Court’s Order. Then Plaintiff complained that the testimonies, opinions, and/or reports of David C. Randolph, M.D., Ph.D., and M.P.H. and Stacie Nunez did not meet the requirements under Federal Rule of Evidence 702 and Daubert.

            Plaintiff filed a motion to exclude the testimony of Defendant’s experts David C. Randolph, M.D., Ph.D., and M.P.H. and Stacie Nunez. Alternatively, Plaintiff moved to limit their testimony. Plaintiff complains that Defendant, Petco Health & Wellness, Inc. (“Petco”) failed to timely identify and provide expert reports for these witnesses. 

            Occupational Medicine Expert Witness

            David C. Randolph M.D., Ph.D, M.P.H is an active occupational medicine physician in Cincinnati, Ohio, in practice for 25 years. He is the former president of the American Academy of Disability Evaluating Physicians.

            His doctoral degree is in Epidemiology at the University Of Cincinnati College of Medicine.

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

            Vocational Rehabilitation Expert Witness

            Stacie Nunez is a licensed vocational rehabilitation counselor/ life care planner. She works at an established Louisiana rehabilitation counseling firm.

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

            Discussion by the Court

            Timeliness of Reports

            Plaintiff suggested that the Court clearly indicated that “Petco could provide a single report from an IME physician relating to Brune’s recommended neck surgery, not multiple reports from other unidentified experts.”

            This Court expressly stated that “the Court will grant an extension as to Defendant’s expert report deadline until August 30, 2024.”

            Plaintiff informed the Court that on August 30, 2024, at 7:55 p.m., Petco provided additional reports from David C. Randolph and Stacie Nunez but complained that these two experts were not previously identified, and their expert report opinions are outside the limited purpose of the expert opinions to address Plaintiff’s neck complaints.

            Petco has hired Randolph as an expert in the field of occupational medicine, and Stacie Nunez as a vocational therapist. Randolph’s opinion and analysis rests on the totality of Plaintiff’s medical condition and Nunez’s report opines on a life care plan. It appeared logical to the Court, considering Plaintiff’s numerous complaints of injuries, that these two experts could not provide relevant reports until after Petco was able to address Wolf’s recommended surgical treatment. Also, Plaintiff has ample time to depose these witnesses and prepare for trial considering these experts’ reports were provided on August 30, 20124, and the trial of this matter is November 18, 2024.

            Plaintiff also complained that Petco has provided no dates for her to depose Randolph and Nunez. However, the Court noted that Plaintiff has not filed a motion to compel the deposition of these witnesses. The Court found no basis to strike Petco’s experts based on Plaintiff’s complaints herein.

            Qualifications

            Plaintiff complained of Randolph’s qualifications in the field of occupational medicine. Specifically, Plaintiff argued that Randolph did not have the expertise to opine that Plaintiff’s fall did not cause her bilateral patellar fractures.

            Plaintiff challenged Randolph’s expertise in Epidemiology and argued that Plaintiff’s trip and fall is not associated with the distribution and determinates of diseases or disorders within groups of people.

            Randolph noted that he provided multiple, peer-reviewed medical references that apply specifically to Plaintiff’s clinical presentation. Randolph explained that he personally reviewed the totality of Plaintiff’s submitted medical records, and notes that a fractured patella is extremely painful that would preclude the ability to walk.

            Randolph’s review of Plaintiff’s medical records reflects a history of multiple joint complaints as well as multilevel degenerative changed in her neck and low back that dated back several years.

            The Court has reviewed Randolph’s curriculum vitae and notes that he has vast experiences in the medical field and finds that he is more than qualified to opine, provide testimony and issue a report as to the causation of the subject incident.

            Plaintiff also moved to strike the opinion, testimony, and report of Stacie Nunez as to Plaintiff’s alleged knee injury. Nunez relied on the opinions of Randolph. Plaintiff argued that should the Court entertain Plaintiff’s request to strike Randolph’s report and opinions, then likewise, Nunez’s report, opinions, and testimony should be stricken. The Court found no basis to strike Nunez’s opinion, testimony, and report.

            Limitations

            Alternatively, Plaintiff moved to limit Randolph’s testimony, report and opinions to exclude any issues regarding safety engineering, fall prevention, pedestrian safety, workplace safety, premises safety, human factors, ergonomics, post-accident evaluations, and/or any opinion as to whether the condition at issue that caused Plaintiff’s fall presented a hazardous condition.

            The Court notes that Randolph has experience in areas of acute injury, incident, safety guidelines as well as other related areas of medicine. However, it appeared that Randolph’s report did not include a majority of these areas. As such, the Court will deny and defer ruling until after traversal at the trial of this matter.

            Held

            The Court denied Plaintiff’s motion to exclude untimely identified and/or unqualified expert witnesses, David C. Randolph and Stacie Nunez, or alternatively, to limit their testimony.

            Key Takeaway:

            Plaintiff argued, without explanation, that Randolph is not qualified to opine as to safety engineering, fall prevention, pedestrian safety, workplace safety, premises safety, human factors, ergonomics, or post-accident evaluations, and as such moved to exclude Randolph’s opinions that are allegedly based on subjective interpretations and assumptions. The Court has reviewed Randolph’s curriculum vitae and noted that he has vast experiences in the medical field and found that he is more than qualified to opine, provide testimony and issue a report as to the causation of the subject incident.

            Case Details:

            Case Caption: Brune V. Petco Animal Supplies Inc
            Docket Number: 2:22cv6082
            Court: United States District Court, Louisiana Western
            Order Date: October 10, 2024
          4. Accounting Expert Witness Reliably Calculates Damages Measure by Reasonable Royalties

            Accounting Expert Witness Reliably Calculates Damages Measure by Reasonable Royalties

            This is a trademark infringement case involving the trademarked phrase “Freedom Pop”. Plaintiff Proccor Pharmaceuticals, Inc. (“Proccor”) contended that Defendant GAT Sports infringed upon its alleged trademark for a “Freedom Pop” flavored Pre-Rx pre-workout supplement. GAT Sports essentially argued that the phrase was used in a non-trademark, descriptive, way to describe the flavor of its product.

            Defendants filed a motion to exclude the testimony of Neil Beaton, whose report states that the Plaintiff retained him to “calculate Defendants’ profits and, separately, Proccor’s damages measure by reasonable royalties.”

            Accounting Expert Witness

            Neil J. Beaton is a Certified Public Accountant who has performed a reasonable royalty analysis 60 to 70 times during his forty year career and who has testified five times as a trademark damages expert in cases specifically involving nutritional supplements. He has assisted 30 times in negotiating royalties in nonlitigation related licensing engagements.

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

            Discussion by the Court

            The Defendants summarized several grounds for their motion:

            • there was no prior trademark licensing agreement between the parties
            • Plaintiff has never had a trademark licensing agreement with any party
            • Beaton’s analysis was based on litigation or prelitigation agreements that are vastly different from trademark licensing agreements
            • Beaton only addressed one of the applicable fifteen factors for determining what the royalty would have been had there been a hypothetical negotiation
            • Beaton never actually reviewed any of the alleged agreements that he relied on for data points in his analysis — all information in his analysis was supplied verbally by Plaintiff’s CEO
            • Beaton’s proposed per unit royalty rate ignores that it doubles the price of the product
            • Beaton’s damages are over 35 times greater than any amounts Proccor ever earned from litigation and prelitigation settlements — combined
            • Beaton did no comparability analysis between his hypothetical trademark license agreement and the litigation and prelitigation settlements he relied on, and/or

            Absence of a licensing history might affect the persuasiveness of an opinion but not the admissibility of the opinion

            The Court explained that many of the Defendants’ objections amount to iterations of the same assertion, which is that in the absence of a licensing history the damages caused by an infringement is not ascertainable with sufficient certainty to warrant admission into evidence of an expert opinion. The absence of a licensing history might complicate the task of formulating an opinion on damages by eliminating certain otherwise available methods of valuation, including the most popular method, the simplest method, or even the most reliable method.

            But the absence of a licensing history no more prevents a reasoned and professional opinion on damages than the absence of immediately comparable sales prevents a qualified real estate appraiser from formulating an opinion on real estate value; the appraiser resorts to other useful and available means of appraisal, including more remotely comparable sales. The absence of a licensing history might affect the persuasiveness of an opinion but not the admissibility of the opinion.

            The Court held that a review of Beaton’s report and his qualifications establish that he meets the threshold of possessing pertinent specialized knowledge based on training and extensive experience in a pertinent discipline and will assist a jury in determining a fact in dispute. The Defendants fail to demonstrate that Beaton’s method is based on insufficient facts or data (he appears to use the best, or perhaps the only, available in both instances); that his principles or his methods are demonstrably unreliable; or that his application of the announced facts, principles, and methods is demonstrably flawed.

            Held

            The Court denied the Defendants’ motion in limine to exclude the testimony of Plaintiff’s expert Neil Beaton.

            Key Takeaways:

            The standard for reviewing the admissibility of Rule 702 expert testimony is familiar, well understood, and explicit in the rule and the leading decisions. In each case, the rigor of the standard adapts to the subject matter of the opinion. An opinion about damages based on the loss of the probable price of something exchanged in the marketplace between a willing buyer under no compulsion to buy and a willing seller under no compulsion to sell is among the simplest and most common topics of expert testimony. Not every expert opinion demands the same level of scientific rigor, peer review, and the like.

            Please refer to the blog previously published about this case:

            Intellectual Property Expert Witness’ Testimony About Trademark Custom and Usage Admitted

            Case Details:

            Case Caption: Proccor Pharmaceuticals, Inc. V. World Health Products, Llc Et Al 
            Docket Number: 8:22cv2227
            Court: United States District Court, Florida Middle
            Date: September 30, 2024