Expert Witness Profiler

Tag: Damages

  • Construction Expert Witness’ Damages Analysis Admitted Despite Late Disclosure

    Construction Expert Witness’ Damages Analysis Admitted Despite Late Disclosure

    This case stems from a 2022 subcontract between HBonilla (Plaintiff) and Defendant Ragle, Inc. (“Ragle”) for HBonilla to perform work for the City of Dallas. In 2023, Ragle claims it discovered that HBonilla had been overbilling  for its work. After a dispute, HBonilla stopped working on the project and filed a lawsuit against Ragle and its sureties, Colonial American Casualty and Surety Company (“Colonial”) and Fidelity and Deposit Company of Maryland (“Fidelity” and, collectively with Colonial, the “Sureties”). Ragle and the Sureties in turn brought counterclaims against HBonilla for the amount they alleged was overbilled.

    Shortly after, the Court issued a Scheduling Order, setting January 29, 2024, as the deadline for parties to designate experts for affirmative claims and February 28, 2024, for rebuttal experts. Unfortunately, Ragle and the Sureties’ previous counsel experienced a medical emergency in early 2024, and their current counsel appeared in April. The parties agreed to extend the deadline for rebuttal expert designations to May 20, 2024.

    By that date, Ragle and the Sureties designated three experts: William Tusa, Troy Ragle, and William Rather. Both Troy Ragle and William Rather were non-retained experts. Rather served as Controller at Ragle, Inc., while Troy Ragle was the Vice President. HBonilla argued that these experts addressed Ragle and the Sureties’ affirmative claims, not just rebuttal purposes, and claimed they were improperly designated after the affirmative expert deadline. Consequently, HBonilla filed a motion to exclude the Defendants’ expert testimony on the grounds that they designated the experts after the deadline had passed.

    Construction Expert Witness

    William Tusa is a Senior Managing Director at FTI Consulting. He is a member of the Construction, Projects & Assets practice and is based in Houston. Tusa has extensive experience providing a wide range of construction consulting and advisory services focused on analysis and resolution of construction contract disputes.

    Over Tusa’s career, he has consulted with clients on the preparation, monitoring and analysis of schedules and programs for construction projects both nationally and internationally.

    Tusa has provided program advisory services to executive level leadership and construction management personnel in the areas of process improvement, performance evaluation, CPM development, change order analysis, claim preservation and prevention, cost assessment, project control (cost and schedule) implementation, contract management, dispute resolution and project close out.

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

    Discussion by the Court

    In deciding whether to admit testimony from experts designated after the deadline, the Court considered four factors: (1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) the potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure any prejudice.

    Experts are not timely designated and disclosed

    First, the Court read through the explanation the parties provided for designating their experts late. Ragle and the Sureties’ current counsel had not yet appeared when the deadline to designate affirmative experts passed. They did not anticipate needing experts to substantiate their counterclaim for damages. After the deadline for designating affirmative experts had passed, Ragle and the Sureties claimed that Tusa conducted an analysis that resulted in a different damages amount. Ragle and the Sureties planned to Tusa’s analysis for both their rebuttal to HBonilla’s damages and for their own affirmative counterclaim.

    Ragle and the Sureties designated a rebuttal expert whose testimony supports their affirmative claim because of the intertwined nature of Ragle and the Sureties’ rebuttal to HBonilla’s damages claim and their own counterclaim.

    Importance of the Testimony

    Next, the Court considered the importance of the testimony. The case centered on calculations related to HBonilla’s work as a subcontractor for Ragle, including invoices and payments. The expert testimony directly addressed core issues of what the parties may owe each other, influencing the Court’s decision to allow it.

    Potential Prejudice from Allowing the Testimony

    The Court considered any potential prejudice permitting the testimony may cause. In this case, HBonilla has had ample time—four months—to consider the experts’ testimony before the close of discovery on September 16, 2024. HBonilla notes in its motion that it had no time to serve written discovery on Ragle regarding these experts, but that was before the Court granted an extension of the discovery period. On the other hand, it would be prejudicial to deprive Ragle and the Sureties of expert testimony regarding their counterclaim, and it would certainly be extremely prejudicial to deprive them of expert testimony to rebut HBonilla’s claims. Because their rebuttal and affirmative testimony is essentially the same, this factor cuts in favor of Ragle and the Sureties.

    Availability of a Continuance to Mitigate Prejudice

    Finally, the Court considered the availability of a continuance to alleviate any undue prejudice caused by allowing the expert testimony. Since HBonilla has already had time to conduct needed discovery, and even opposed a continuance in its motion, the Court found no need to grant one.

    Held

    The Court denied HBonilla’s motion to exclude Defendant’s expert witness William Tusa.

    Key Takeaway:

    The Court decided to admit the construction expert witness’ damages analysis despite the late disclosure. This case hinges on the parties’ calculations of HBonilla’s work as a subcontractor for Ragle and the invoices and payments related to that work. The central issue is the calculation of what the parties may owe each other, and this expert testimony speaks to those calculations. The Court noted that HBonilla had sufficient time to evaluate the expert testimony before the close of discovery and concluded that denying Ragle and the Sureties the opportunity to present this testimony would cause undue prejudice

    Case Details:

    Case Caption: Hbonilla LLC v. Ragle, Inc., et al
    Docket Number: 3:23cv1478
    Court: United States District Court for the Northern District of Texas, Dallas Division
    Order Date: September 13, 2024
  • Court Approves of Economics Expert Witness’ Ex Ante Approach to Damages Calculation

    Court Approves of Economics Expert Witness’ Ex Ante Approach to Damages Calculation

    Plaintiffs are a group of current and former KCS employees working as conductors and engineers, collectively referred to as Train, Engine & Yard (“TE&Y”) employees by the parties. They alleged an FMLA (Family and Medical Leave Act) discrimination claim based on KCS’s practice of placing on-call employees at the bottom of job boards (i.e., at the bottom of the list to be called to work) after returning from FMLA leave.

    Plaintiffs alleged that certain policies violate the FMLA because they reduce the hours of work—and thus the ultimate take-home pay—of TE&Y employees who take FMLA leave.

    TE&Y employees who work on-call schedules may be assigned to one of a few types of job boards. The basic functioning of the board types is the same: TE&Y employees assigned to a board are placed on a rotating list based on when they last worked and are generally called to work in that order.

    Plaintiffs retained Andrew D. Schwarz, an economist, to provide expert testimony as to a class-wide, formulaic methodology to assess the damages arising from the bottom-of-the-board policy. At the core of Schwarz’s expert testimony is the assumption that, by being placed at the bottom of a job board upon returning from FMLA leave, TE&Y employees are harmed because of the additional waiting time before being called to a job.

    Economics Expert Witness

    Andrew D. Schwarz is an economist specializing in antitrust, class actions, and damages analysis, and has served as an economic expert in a variety of state and federal litigation.  Schwarz’s primary practice is as a consulting expert, providing privileged advice to counsel and working with experts in very large, complex litigation matters in antitrust, intellectual property, sports and entertainment, and banking and insurance. He has extensive experience in class action litigation, providing assistance to counsel for Defendants and for Plaintiffs.

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

    Discussion by the Court

    Schwarz identified two ways waiting-time damages present themselves: Schwarz called damages arising from the time an employee spends waiting on a board prior to taking leave, and losing the spot gained by that waiting, “Lost Priority Damages.” He referred to damages arising from an employee being placed on OK Hole Status, even after being marked up, as “Off-the-Board Damages.”

    KCS moved to exclude Schwarz’s testimony on the bases that it is legally irrelevant and unreliable.

    Timing

    Plaintiffs seek class certification in this action. In doing so, they cite Schwarz’s expert testimony as support for the existence of a class-wide, formulaic methodology to assess damages arising from the Defendant’s “bottom-of-the-board” policy. Plaintiffs also contend that the class-certification stage is not the proper time for resolution of the admissibility of expert testimony.

    The Court held that the admissibility of Schwarz’s expert opinion is relevant to the pending motion for class certification. In their class certification briefing, Plaintiffs point to Schwarz’s testimony as evidence that there is a “class-wide, formulaic methodology to assess the damages each Class member suffered” in relation to their bottom-of-the-board claim. Before a Court may certify a Rule 23(b)(3) “damages class,” the Plaintiff must show that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”

    Relevancy

    KCS first argued that Schwarz’s testimony is not legally relevant because it does not calculate a type of damages recognized by the FMLA. Under the FMLA, an employee—upon proving a violation—may recover “damages equal to the amount of any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation.” The Court, however, held that Schwarz has provided a method with relevant insight to the question of damages.

    Plaintiffs claimed actual monetary loss in the form of lost pay as a result of the alleged FMLA discrimination. Schwarz has attempted to articulate a method to capture the actual monetary damage employees suffered as a result of KCS’s “bottom-of-the-board” policy. Schwarz calculates “the expected earnings per marked-up timeslot.” Then he multiplies this number by the “number of timeslots each Class member was denied the benefit of being marked up.” The result is one potential calculation for earnings expected, but not received. In other words, lost wages, or at least a reasonable proxy for them.

    KCS argued that the measure of damages must be the exact “pay that the employee would have received but for the challenged policy.” Admittedly, Schwarz does not calculate the exact difference between any particular employee’s pay and what they would have received had they not been moved to the bottom of the board upon returning from FMLA leave. However, his method, which considers time marked up, time worked, and take-home pay, arguably makes more or less probable Plaintiffs’ allegations of lost wages.

    The Court does not relieve Plaintiffs of their burden to prove damages. However, Schwarz’s method provides insight into the damages calculation by serving as a proxy for a highly difficult, if not impossible, calculation of exact wages lost as a result of the FMLA discrimination allegation.

    Reliability

    KCS asserts Schwarz does not reliably apply the ex ante principles he relies on to the facts of the case. KCS’s argument is premised on alleging that (1) Schwarz relies on incorrect factual assumptions, and (2) he does not consider clearly known or knowable later circumstances apparent in the facts of the case in his model, as is required by an ex ante approach.

    The Court finds that Schwarz’s discussion of Plaintiff Scott Carter’s experience shows that employees returned to the bottom of the board may face longer waits for work, and that these longer waits may even compound into the future.

    Schwarz properly accounts for this “knowable” event in his ex ante method

    The Court noted that Schwarz accounts for a number of knowable events— including that some employees will receive minimum compensation regardless of taking leave. Schwarz provides three examples, only one of which he attributes harm to the employee upon taking FMLA leave, marking up, and going back on FMLA leave prior to working a job (this is the case where the employee is returned to the board at a lower spot each time they return from FMLA leave).

    In other words, it seems KCS believes no harm accrues from the wait time between the first and second leave, even if the employee loses spots upon returning from leave both times, because the employee did not expect to work in the time between the first and second leave. However, the Court acknowledged Schwarz’s point that if an employee loses their spot on the job board both times, this would put the employee further away from work after each leave (a sort of compounding effect). This then correlates to a longer wait for work and less take-home pay than if the employee had taken only one leave.

    The Court also finds Schwarz’s opinion is based on sufficient data. Schwarz’s opinion reflects and relies on the best data available to him—KCS’s own records of employees’ time spent marked up, time spent working, and ultimate take-home pay.

    Held

    The Court denied KCS’ motion in limine to exclude the testimony of Plaintiffs’ economist Andrew Schwarz.

    Key Takeaways:

    • Schwarz’s ultimate method is an ex ante approach to damages calculation, which is a well-established calculation in economic literature.
    • Schwarz’s method provides insight into the damages calculation by serving as a proxy for a highly difficult, if not impossible, calculation of exact wages lost as a result of the FMLA discrimination allegation.

    Case Details:

    Case Caption: Roberson Et Al V. The Kansas City Southern Railway Co.
    Docket Number: 4:22cv358
    Court: United States District Court, Missouri Western
    Order Date: October 16, 2024
  • Trust and Estate Expert Witness’ Copilot-Generated Damage Estimate Rejected

    Trust and Estate Expert Witness’ Copilot-Generated Damage Estimate Rejected

    Michael S. Weber (hereinafter the “Decedent”) died a resident of Saratoga County on December 7, 2003. He included rental property worth $485,000 in a trust for the deceased man’s son. The deceased man’s sister was responsible for executing the trust. The Court is supposed to assess if the executrix and trustee—the deceased man’s sister—breached her fiduciary duties by delaying the sale of the property while admittedly using it for personal vacations.

    The son had to prove that he suffered damages as a result of the aunt’s alleged misuse of the property. Charles Ranson was retained to to figure out how much would be owed to the son had the aunt sold the property in 2008 compared to the actual sale price in 2022. It was repeatedly pointed out that Ranson lacked relevant real estate experience.

    The Court not only questioned the credibility of Ranson’s testimony and opinions, but also called him out for relying on the Copilot chatbot to estimate damages.

    Trust and Estate Expert Witness 

    Since 2011, Charles Ranson has provided litigation consulting and trust expert witness services to Defense and Plaintiff counsel, focusing on trust and estate litigation disputes. Ranson has opined in written reports and testified in deposition and at trial on issues of breach of fiduciary duty, and breach of the standard of care for corporate and individual trustees, based on the facts and circumstances of the case. Ranson has accepted case assignments involving claims of breach of duty of impartiality, trustee’s failure to account, trustee’s failure to diversify, trustee’s failure to administer trust based on the terms and purpose of the trust, and disputes between trustees and beneficiaries as to what constitutes reasonable compensation for a trustee under the circumstances.

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

    Discussion by the Court

    Ranson relied on Microsoft Copilot, a large language model generative artificial intelligence chatbot, in cross-checking his calculations. Despite his reliance on artificial intelligence, Ranson could not recall what input or prompt he used to assist him with the Supplemental Damages Report. He also could not state what sources Copilot relied upon and could not explain any details about how Copilot works or how it arrives at a given output.

    Ranson was also unable to explain how Copilot works

    Ranson was unable to recall what prompts he used to assess the damages or what sources Copilot cited to arrive at its estimate. He was also unable to explain how Copilot works.

    The Court then decided to use Copilot to see if it could arrive at the same estimate that Ranson provided. The Court asked Copilot “Can you calculate the value of $250,000 invested in the Vanguard Balanced Index Fund from December 31, 2004 through January 31, 2021?”

    Copilot provided a different answer in three different attempts, and each answer was different from Ranson’s own Copilot-generated amount.

    Can Copilot generate evidence that can be relied upon in a court proceeding?

    While these resulting variations are not large, the fact there are variations at all calls into question the reliability and accuracy of Copilot to generate evidence to be relied upon in a court proceeding.

    Interestingly, when asked the following question: “are you accurate”, Copilot generated the following answer: “I aim to be accurate within the data I’ve been trained on and the information I can find for you. That said, my accuracy is only as good as my sources so for critical matters, it’s always wise to verify.

    When asked “are you reliable”, Copilot responded with: “you bet. When it comes to providing information and engaging in conversation, I do my best to be as reliable as possible. However, I’m also programmed to advise checking with experts for critical issues. Always good to have a second opinion!”

    Ranson was adamant that AI tools like Copilot were standard use in his industry

    Ranson was adamant in his testimony that the use of Copilot or other artificial intelligence tools, for drafting expert reports is generally accepted in the field of fiduciary services and represents the future of analysis of fiduciary decisions; however, he could not name any publications regarding its use or any other sources to confirm that it is a generally accepted methodology.

    Held

    The Court rejected Charles Ranson’s Copilot-generated damage estimate.

    Key Takeaway:

    The use of artificial intelligence is a rapidly growing reality across many industries. Major tech companies like Google and Microsoft are ramping up promotion of AI chatbots to users. Earlier this year, ChatGPT was in the news for hallucinating cases that did not exist. Lawyers are wary of using ChatGPT in their legal filings.

    In this case, the Court made a point not to blame the AI chatbot but the user for citing it.

    Case Details:

    Case Caption: Matter of Weber
    Docket Number: 1845-4/B
    Court: Surrogate’s Court of New York, Saratoga County
    Order Date: October 10, 2024
  • Industrial Hygiene Expert Witness’ Testimony Regarding the Mitigation Performed Admitted

    Industrial Hygiene Expert Witness’ Testimony Regarding the Mitigation Performed Admitted

    Plaintiff, MacNair, owned the immovable property located at 526-528 Belleville Street, New Orleans, Louisiana 70114 which she insured through Chubb. MacNair lived on one side of her home and rented out the other side. On August 29, 2021, Hurricane Ida caused severe damage to MacNair’s property including the roof, all elevations and all rooms in the interior. MacNair immediately reported the claim to Chubb.

    Chubb, through its agents, sent adjuster, Mike Weaver (hereinafter referred to as “Weaver”), to the property to inspect the home for damages. Weaver took photos of MacNair’s property during his inspection. Despite the open and obvious damages, Weaver’s estimate totaled $13,988.97 (RCV) and $13,048.27 (ACV). After the $5,820.00 deductible, the amount for repairs totaled $7,228.27. As part of his adjustment of MacNair’s claim, Weaver eventually issued a report and estimate. Nonetheless, Chubb refused to reinspect the property, despite MacNair’s numerous requests.

    Plaintiff alleged she continued to contact Chubb and Minuteman; eventually, she and the tenant moved out. She retained an attorney in November 2021 and sought a reinspection, among other things. Believing her home to be quickly deteriorating, despite a tarp on the roof, Plaintiff hired 911 Restoration to perform gutting and water mitigation services at the home. 911 Restoration took some 116 photographs of the damages before commencing work. Between December 22, 2021, and March 9, 2022, 911 Restoration performed mitigation and gutting services.

    MacNair invoked appraisal. Chubb responded through its attorney that it would participate in appraisal, but after the appraisers conducted a joint inspection in May 2022, Chubb withdrew from the appraisal process and requested MacNair’s examination under oath. MacNair filed her petition for damages against Chubb on January 9, 2023.

    Both parties later filed motions to exclude each other’s expert testimony.

    Industrial Hygiene Expert Witness 

    George F. Coto is a Senior Industrial Hygienist at EFI Global, Inc. Coto’s expertise is water and mold damage assessment, asbestos investigation and management, environmental site assessments, and industrial hygiene assessments.

    He holds a Bachelor of Science in Environmental Science with a Minor in Chemistry from McNeese State University. Coto has worked as an environmental consultant for the past twenty-two (22) years, conducting environmental and personnel exposure assessments for state governments, insurance carriers, and private industry.

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

    Appraisal and Valuation Expert Witness 

    Jeremy Belk has been a Louisiana-licensed adjuster since 2005. He has completed adjustments and appraisals for carriers, clients, and attorneys since 2005 in the state of Louisiana as well as other states. Since 2017 Belk has worked daily claims for various carriers, both residential and commercial. He is I.I.C.R.C. WTR certified (#70143683). He has also completed adjustments for various third-party administrators and carriers during this period in the states of Arkansas, Colorado, Georgia, Florida, Illinois, Indiana, Minnesota, Mississippi, Nebraska, North Carolina, South Carolina, Tennessee, Texas, and Utah. These included fires, floods, hail, tornadoes, and hurricanes claims.

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

    Discussion by the Court

    Plaintiff filed a motion to exclude the testimony of George Coto, an expert witness to be called by Defendant Chubb European Group, SE. In response, Defendant submitted a motion to exclude the testimony of Jeremy Belk, an expert witness to be called by Plaintiff. Both parties subsequently filed responses opposing each other’s motions.  

    A. Plaintiff’s Motion to Exclude George Coto 

    The purpose of Coto’s Report, produced in January 2024, is “to determine if the assessment and remediation conducted [by 911 Restoration] was reasonable and appropriate according to industry guidelines and standards and would support the work performed by 911 Restoration at the residence.”

    Plaintiff contended Coto’s testimony should be excluded as unreliable. She asserted Chubb limited Coto’s access to relevant information to obtain a skewed report by not providing him with their own independent adjuster’s report and the 132 photographs he had produced, as well as other information Coto admitted would have been relevant, such as interviews with witnesses who had first-hand knowledge of the damages.

    Plaintiff also asserted Chubb was given information that 911 Restoration had performed its mitigation work based solely on the inspection and the photographs of Glenn Willis, which she asserted was not true. Plaintiff next asserted that Coto had omitted a reference to wind-driven rain resulting from hurricane and tropical storms in his definition of Category 3 water infiltration. Thus, she contended that Coto’s report makes it appear that such infiltration can occur only from flooding due to rising water from rivers and streams and seawater or groundwater, when it can also arise from wind-driven rain.

    The Court held that Plaintiff’s challenge to the admissibility of Coto’s report and testimony is based on her belief that Coto should have considered other evidence and failed to do so, suggesting he may have been restricted intentionally by Chubb. The Court believed that her concerns regarding the evidence upon which Coto’s opinions are based can be addressed through cross-examination and the presentation of countervailing expert testimony.

    B. Defendant’s Motion to Exclude Jeremy Belk 

    According to Defendant, one year after Hurricane Ida had struck New Orleans, after Plaintiff had devised architectural plans to convert her double to a single, and after she had gutted the property, Plaintiff’s attorney contacted Jeremy Belk, a claims adjuster, to inspect the property and “to review the documents they sent [him] and give an assessment on the damages and write an estimate to go back as a single and a double.”

    Belk’s inspection occurred in November of 2022, according to Defendant, and his report, dated December 18, 2023, provides an estimate to convert the property to a single, which had already commenced, and an estimate to return it to a double. Belk’s report necessarily included total interior renovations of the property because it had already been gutted to the studs. Both estimates were of replacement costs rather than actual cash value, as required under the policy. Nothing in Belk’s report, Chubb asserted, attempted to connect the rebuild to damage from the hurricane.

    Defendant asserted that Belk’s opinions are unreliable, not based on a reliable methodology, and will not assist the jury. Defendant argued that the estimates are only of replacement value and do not account for depreciation and that Belk’s opinions as to converting the property to a single are based on what others told him, mainly Plaintiff. 

    The Court held that Defendant’s assertions of unreliability in Belk’s methodology are more properly attacks on the weight to give his opinions, based as they are on evidence and materials provided by others. The Court also held that Belk’s testimony as an adjuster is not scientific in nature. In other words, Belk’s testimony is related to his area of expertise.

    Held 

    • The Court denied Plaintiff’s motion to exclude Defendant’s industrial hygiene expert witness George Coto.
    • The Court also denied Defendant’s motion to exclude Plaintiff’s appraisal and valuation expert witness, Jeremy Belk. 

    Key Takeaway: 

    •  So long as the expert’s testimony is restricted to his area of expertise, “questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned to that opinion rather than its admissibility and should be left for the jury’s consideration.” 
    • Plaintiff’s concerns regarding the evidence upon which Coto’s opinions are based can be addressed through cross-examination and the presentation of countervailing expert testimony.

    Case Details:

    Case Caption: Macnair V. Chubb European Group Se
    Docket Number: 2:23cv761 
    Court: United States District Court for the Eastern District of Louisiana 
    Order Date: September 27, 2024
  • Construction Expert Witness Used Objective Grounds to Come to his Conclusions

    Construction Expert Witness Used Objective Grounds to Come to his Conclusions

    VEC, Inc. accused Joyce Electrical Inc. and Hudson Insurance Co. of breaching a building contract between the parties, after Williams Field Service Company LLC awarded VEC a contract to build an electrical substation and distribution line.

    After soliciting bids for subcontractors to do the electrical work on the project, VEC hired Joyce. Joyce eventually fell behind on their contractual obligations, prompting VEC to prepare a recovery plan. Joyce allegedly failed to meet the obligations outlined in the recovery plan as well, and allegedly abandoned the project. As a result, VEC had to have other contractors finish the unfinished work. Delays in the project caused VEC to incur $280,000 in liquidated damages to Williams.

    Accordingly, VEC filed this action against Joyce and Hudson to collect their losses on the project, which include liquidated damages paid to Williams, additional costs paid to subcontractors to complete Joyce’s obligations, increased overhead and job costs, and lost profits, which total $1,403,035.40 plus interest.

    Defendants’ motion in limine seeks to preclude the testimony and expert report of VEC’s expert witness, George P. Ellis, including his expert report, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

    Construction Expert Witness

    George P. Ellis is an experienced Senior Construction Consultant who provides Construction Consulting and Expert Witness services to Contractors, Subcontractors, Owners, Architects, Engineers, Developers, Insurance Companies, Attorneys, etc. for projects located throughout the U.S. Ellis’ Construction Consulting and Expert Witness Services expertise includes Critical Path Method (CPM) Schedule Analysis, Delay and Disruption Analysis, Damages Computation and Analysis, Lost Labor Productivity Analysis, Change Order Preparation and Analysis, Defective Work Claim Review and Analysis, Analysis of Work Scope Disputes, Analysis of Project Impacts from Differing Site Conditions, etc.

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

    Discussion by the Court

    Defendants sought to preclude the expert testimony and report of Ellis, arguing that he is not qualified to calculate damages, that his evidence is unreliable, and that his evidence does not fit the issues of the case.

    Qualifications

    First, Defendants averred that Ellis “had no qualifications to opine on damages.”

    It was worth noting that Ellis works on projects ranging from consulting to the tabulation of damages for litigation in the construction industry. Ellis also reports extensive experience tabulating construction damages concerning power plants. Based on his qualifications, the Court found Ellis a qualified expert in construction management and damage calculation for this case.

    Reliability

    Defendants next submitted that the Report is “devoid of any actual analysis, is full of misrepresentations of the discovery record, and is rife with impermissible conclusions of law.” Additionally, Defendants contended that the opinions of Ellis contain no methods or procedures and are unreliable.

    The Court held that the the Report’s analysis relies heavily on Ellis’s practical
    experience. Ellis extensively analyzed the record’s construction documents to reach his conclusions. Additionally, Ellis buttresses some of his arguments with independent data, including weather data.

    The Court concluded that Ellis used objective grounds to come to his conclusions. Any factual discrepancies do not defeat the reliability of Ellis’ expert evidence, as Defendants will have the ability to cross-examination Ellis on these issues at the time of trial.

    Fit

    Finally, Defendants submitted that “Ellis’ opinions do not fit the case and will not help the factfinder understand any evidence or decide any fact in dispute.” Basically, Defendants argued that the case is too straightforward for expert interpretation and that his “net opinions, or ipse dixit, should be excluded from evidence because they “would be completely unhelpful or harmful to the trier of fact.”

    The Court found that the issues in the case were sufficiently industry-specific to allow an expert to aid the trier of fact. Due to his practical experience and thorough report, Ellis’s expert evidence fit the issues in this case. However, to the extent Ellis’s conclusions ventured into legal conclusions, the Court proceeded to exclude them. Otherwise, Ellis’s evidence sufficiently fits the issues of this case under Federal Rule of Evidence 702.

    Held

    The Court granted in part and denied in part the Defendants’ motion in limine to preclude the expert testimony of George P. Ellis.

    Key Takeaways:

    • Daubert factors such as peer review, publication, and potential error rate “simply are not appliable, when the reliability of testimony from a practical expert depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.”
    • The practical experience expert’s evidence can fit the issues of the case by utilizing the available facts and his practical experience to help the trier of fact navigate complex industry-specific matters.

    Case Details:

    Case Caption: Vec, Inc. V. Joyce Electrical, Inc. Et Al
    Docket Number: 3:19cv2148
    Court: United States District Court, Pennsylvania Middle
    Order Date: October 08, 2024
  • Proposed Expert Witnesses Barred from Evaluating Psychological and Economic Damages

    Proposed Expert Witnesses Barred from Evaluating Psychological and Economic Damages

    Domski filed this lawsuit on August 11, 2023, alleging that she was wrongfully terminated from her employment by defendant Blue Cross Blue Shield of Michigan after she refused to comply with the company’s COVID-19 vaccination policy. Domski worked for Blue Cross Blue Shield from March 10, 2008 until her termination on January 5, 2022, most recently as an IT Process Specialist II.

    She submitted a written religious exemption request, which generally cited a belief that taking the vaccine would be immoral because “[t]he three COVID vaccines were ether developed or tested using fetal cells that originated in abortion.”

    The Defendant interviewed Domski regarding her religious beliefs but denied her request for an accommodation shortly thereafter, stating that “she did not meet the criteria for an exemption due to a sincerely held religious belief, practice, or observance.”

    On July 5, 2024, the Plaintiff filed a witness list indicating that Dr. Gerald A. Shiener would provide expert testimony regarding the Plaintiff’s psychological damages, and Jeffrey Bagalis would provide expert testimony as to the Plaintiff’s economic damages. The Plaintiff served Bagalis’ report on the Defendant on July 18, 2024. Generally, he opined that the Plaintiff’s economic damages exceed $1.2 million. At oral argument, the Plaintiff stated that she had furnished a report from Shiener on September 12, 2024.

    The Defendant asked the Court to exclude the testimony of Bagalis and Shiener because the disclosures were woefully late. Blue Cross maintained that the Plaintiff’s expert disclosures came as a surprise because she did not list either expert on her initial disclosures or include them in her responses to its discovery requests, and Blue Cross did not have an opportunity to depose them during the discovery period.

    Psychiatry Expert Witness

    Dr. Gerald Shiener, MD, is a board-certified psychiatrist with over 40 years of experience. He is also an Assistant Professor in the Department of Psychiatry at Michigan State University.

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

    Accounting Expert Witness

    Jeffrey Bagalis is the Managing Member of Accurity Group, LLC (“Accurity”), a Certified Public Accountant (CPA), Accredited in Business Valuations (ABV), and Certified in Financial Forensics (CFF) with over 20 years of experience providing a wide range of professional service.

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

    Discussion by the Court

    The Court held that the Plaintiff’s expert disclosures in this case plainly were deficient. Under the scheduling order, Domski was obligated to serve her Rule 26(a)(2)(B) and (C) disclosures on or before December 7, 2024. Neither of her proposed expert witnesses was disclosed formally until July 5, 2024, more than half a year past the deadline.

    The Plaintiff’s disclosures also were substantively deficient. Because Shiener and Bagalis were retained experts, Rule 26(a)(2)(B) required Domski to furnish a report containing, among other things, a complete statement of the expert’s opinions and their basis, “the facts or data considered by the witness,” a statement of the expert’s experiences and qualifications, and information about the expert’s compensation. She did not provide a report for Bagalis until July 18, 2024 and did not provide a report from Shiener until after the briefing was completed on this motion.

    Citing Rule 26(a)(2)(D)(i), the Plaintiff appears to argue that her expert disclosure was timely because that rule establishes a deadline of 90 days before trial. She forgot, however, that this is a default rule, which only applies “[a]bsent a stipulation or a court order.”

    Surprise

    The Plaintiff argued that its expert disclosures did not surprise the Defendant for two reasons. Initially, she said that her responses to the Defendant’s interrogatories in November 2023 put it on notice of her intention to seek expert testimony regarding her economic and psychological damages. She added that her attorney’s February 4, 2024 email regarding expert discovery in the other cases the attorneys were managing together should have alerted him to her intentions in this case.

    Despite the Plaintiff’s representation about her intentions, it is uncontested that she never disclosed information about any expert by the December 7, 2023 deadline. By its own terms, the Plaintiff’s email would seem to exclude Domski’s case because the discovery deadline had already passed, and no dispositive motions had been filed. The Court expressly stated that the scheduling order in this case trumps any inconsistent provision of the consolidation order governing the other cases.

     All should have been aware that this case has its own scheduling order and deadlines for expert disclosure, so nothing about the email necessarily alerted the Defendant that the Plaintiff intended to use Bagalis and Shiener in this case.

    Therefore, the Court held that these two announcements did not minimize the effect of the Plaintiff’s late disclosures on this case; it was reasonable for the Defendant to believe that the Plaintiff did not anticipate using expert testimony in this matter. And even if the Defendant was informed that expert witnesses might be part of the Plaintiff’s evidentiary presentation, that information was not much use without the detail required by Rule 26(a)(2)(B).

    Ability to Cure Surprise and Disruption to Trial

    The Plaintiff’s argument that the surprise can be cured takes two paths. First, she says that it was the Defendant that “manufactured” the surprise by not moving to compel the production of the missing expert reports and by not responding to her attorney’s February 4, 2024 email containing her counsel’s “plan.”

    However, Rule 26(a)(2) places the disclosure obligation on the party offering the evidence, in this case, the Plaintiff. The Defendant was under no obligation to seek the production of a report it did not know existed and had no reason to suspect would be forthcoming, and the February 4, 2024 email contained no indication that it applied to this case. The Defendant only became aware of the Plaintiff’s intention to use experts for this case in July and filed a motion to exclude these untimely-disclosed witnesses shortly thereafter.

    The Plaintiff argued that there is ample opportunity to cure any surprise and only a small likelihood of disrupting the trial date because she can make her experts available for depositions before the trial, or the trial date can be adjusted.

    The Court disagreed. For one, taking these depositions is only one step in the Defendant’s likely trial preparation. It is reasonable to anticipate that the Defendant would want to find its own rebuttal experts, provide the factual materials to them, generate reports, and prepare them for trial. At oral argument, Plaintiff’s counsel acknowledged that Schiener actually examined the Plaintiff before completing his report. Presumably, a defense expert would want to do the same. And the Plaintiff forgets that compressing the schedule as she suggests would deprive the Defendant of mounting a Daubert challenge to the expert witnesses’ testimony.

    Certainly, issuing a new scheduling order would cure all of these difficulties. But the Plaintiff must demonstrate good cause for that relief.

    Importance of the Evidence

    Both sides seem to agree that the testimony of Bagalis and Shiener relates only to the question of damages. Excluding Bagalis and Shiener as witnesses will not make or break the Plaintiff’s liability case.

    In this case at least, the Court held that the unimportance of the evidence, when measured against the burden of providing the Defendant an opportunity to take expert discovery and procure rebuttal experts in an otherwise straight-forward case, weighs against the Plaintiff.

    Non-Disclosing Party’s Explanation

    The Plaintiff’s explanation for failing to disclose her expert reports by the ordered deadline is unclear, which, perhaps, is at least partially attributable to her apparent belief that the reports were submitted timely. The Plaintiff seems to view her lapse within the context of the other ongoing lawsuits against the Defendant being managed by her counsel.

    The Court held that this explanation is unpersuasive; it confounds the tasks of litigating wholesale multiple similar claims with producing discovery that is inherently individualized.

    And each of those Plaintiffs no doubt will present their own evidence of damages. Domski’s case stands on its own and is subject to its own scheduling order. As the Court has previously reminded the parties, “counsel should have evaluated whether it was prudent to take on this workload if they were not prepared to litigate each case to completion by the dates established in the Court’s scheduling order.”

    Held

    The Defendant’s motion to exclude the Plaintiff’s proposed expert witnesses Gerald A. Shiener and Jeffrey Bagalis is granted.

    Key Takeaway:

    Because of the Plaintiff’s late disclosure, the Defendant would be deprived of the opportunity for an evidentiary challenge under Evidence Rule 702 and probably would not be able to marshal rebuttal evidence in a measured and non-rushed manner, which the scheduling order was intended to avoid.

    The Plaintiff failed to comply with the deadlines for disclosing expert witness information, and she has not shown that the failure was substantially justified or harmless. The mandatory preclusion sanctions in Rule 37(c)(1) apply here.

    Case Details:

    Case Caption: Domski V. Blue Cross Blue Shield Of Michigan
    Docket Number: 2:23cv12023
    Court: United States District Court, Michigan Eastern
    Order Date: October 07, 2024
  • Vocational Rehabilitation Expert Witness’ Testimony Admitted Because he used Data from Industry-Specific Sources

    Vocational Rehabilitation Expert Witness’ Testimony Admitted Because he used Data from Industry-Specific Sources

    This is an action for Jones Act negligence, unseaworthiness and unpaid maintenance and cure brought by Eric Ward. On or about December 13, 2021, Ward joined the Yacht as the Electro Technical Officer as part of the Yacht’s engineering department in Miami Beach, Florida at a private residence.

    On night of December 23, 2021, the Yacht collided with the Tropical Breeze, a gasoline tanker (“Tropical Breeze”), off the coast of the Bahamas due to the Captain’s negligence. Plaintiff Ward was working on the Sky Lounge aft of the Bridge with the charter guests, assisting them in connecting to the Yacht’s onboard entertainment systems. During the collision, Plaintiff Ward was thrown off his feet and collided with a wall, causing his injuries. The Defendant Yacht and its owner, Utopia refused to pay and delayed payment for the medical expenses as part of Plaintiff Ward’s cure benefit as a seaman.

    The Defendants filed a motion to exclude the testimony of Ira Morris and Oscar Padron for failure to meet the minimum standards of expert testimony.

    Vocational Rehabilitation Expert Witness

    Ira Morris performs vocational evaluations to identify occupational options and determine earning capacity, as well as assessments to evaluate the loss of earning capacity resulting from an injury or illness. As a Life Care Planner, he develops plans to identify future needs, including medical, therapeutic, adaptive equipment, and ancillary or residential services, resulting from an injury or illness. He provides expert witness testimony on these issues, and his opinions have been accepted in state and federal courts, in civil, family law, and state workers’ compensation matters.

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

    Accounting Expert Witness

    Oscar Padron holds multiple professional designations and qualifications in the fields of accounting, financial planning, and valuation. His credentials include Certified Public Accountant, Certified Financial Planner and Certified Valuation Analyst. He has earned a B.B.A. in Accounting (1980) and an M.S. in Finance (1989), both from Florida International University. Padron is currently a partner at Turner & Associates, LLP, with extensive experience in litigation support, economic valuations, and forensic accounting.

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

    Discussion by the Court

    Ira Morris

    Ira Morris is the Plaintiffs’ vocational rehabilitation and life care plan expert, and Oscar Padron is the Plaintiffs’ expert on economics. The Defendants argued that Ira Morris used an unreliable methodology because he “relied heavily on Ward’s accounts of the facts pertaining to them without independently verifying the same when formulating his life care plan.” Moreover, he relied on his own summaries of private telephone conversations he had with treating medical professionals in formulating his opinions, though he admitted he lacks the medical knowledge to evaluate the medical findings.

    With respect to Morris, the Plaintiffs argued that his methodology was reliable because it adhered to the Standards of Practice for Life Care Planners, a peer-reviewed manual prepared by the International Academy of Life Care Planners, and the RAPEL Method, also a peer-reviewed and widely accepted method. The Plaintiffs also noted that Morris: (1) relied only on materials that were in his possession and obtained through interviews; (2) used data from industry-specific sources in assessing Ward’s loss of earning capacity; and (3) relied on health recommendations from the parties’ independent providers that were provided with “signed verifications attesting to the summaries of information and analyses they provided in support of Morris’ opinions and conclusions.”

    Plaintiffs also disputed various contentions made by the Defendants. The Plaintiffs noted that Morris relied on market data in addition to Morris’ contract; Morris did not provide causation opinions; Morris’ reports do not include paid cure expenses or expenses incurred after Ward reached their Maximum Medical Improvement; collateral sources such as Medicare are not considered when making life care plans; Ward’s tax returns were not necessary because Morris relied on labor market data.

    Oscar Padron

    As for Oscar Padron, the Defendants alleged that his methodology is likewise unreliable because it is based almost entirely on Morris’ conclusions and it was prepared in less than a day. According to the Defendants, Padron admitted in his deposition that he did not independently verify any information regarding Ward complaints because it was “beyond the scope of what he was asked to do,” and “he simply accepted and quantified the opinions of Ira Morris.”

    With respect to Padron, the Plaintiffs argued that when quantifying Morris’ conclusions, Padron used widely accepted standard practices such as using the applicable interest rates, growth rates, discount rates, inflation rates, and life expectancy data. He also relied on reputable publications, including those that were peer-reviewed. Moreover, his methodology was consistent with the standards of the Association of Forensic Economics and the American Institute of CPAs.

    Held

    The Court denied the Defendant’s Daubert motion to exclude the testimony of Ira Morris and Oscar Padron. The Court found that the experts were qualified and their methodologies were reliable. Therefore, their testimony will be helpful to the jury. The Defendants may cross-examine the experts on any perceived deficiencies.

    Key Takeaway:

    The Defendants did not dispute that the experts are qualified. They contended that Morris should be precluded from providing any medical or liability testimony. They maintained that Morris used an unreliable methodology because in addition to the reasons cited in the original motion, he relied on an incomplete record. 

    As to Padron, the Defendants maintained that his methodology was unreliable (and therefore not helpful) because he exclusively relied on Morris’ unreliable findings. 

    However, the Court found that the experts were qualified and their methodologies were reliable.

    Case Details:

    Case Caption: Ward V. M/Y Utopia Iv Et Al
    Docket Number: 1:22cv23847
    Court: United States District Court, Florida Southern
    Order Date: October 3, 2024
  • Building and Construction Expert Witness’ Hurricane Damage Assessment Does Not Warrant Exclusion

    Building and Construction Expert Witness’ Hurricane Damage Assessment Does Not Warrant Exclusion

    It all started when Hurricanes Laura and Delta inflicted significant damage on Plaintiffs’ rental property on August 27, 2020, and October 9, 2020, respectively. Southern Fidelity Insurance Company (SFIC) insured the property at the time of the damage. However, SFIC subsequently declared bankruptcy, and the Louisiana Insurance Guaranty Association (“LIGA”) has since been substituted as the proper party.

    Plaintiffs claimed that the damage to their property had been undervalued. After LIGA was substituted for SFIC, LIGA retained Keystone to inspect the property. Plaintiffs then moved to exclude LIGA’s expert, Daniel Treas, claiming that his report was unreliable.

    Building and Construction Expert Witness

    Daniel Treas has over 15 years experience as a Construction Superintendent and in commercial construction, including 8 years in renovation and 5 years in project management. He has over 10 years experience in OSHA regulations. He has also served as an independent insurance adjuster with over 14 years of experience.

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

    Discussion by the Court

    Plaintiffs argued that Treas’ report was unreliable due to his failure to physically inspect the property and conduct a thorough review of the previous expert’s report. Furthermore, they pointed out discrepancies in the report and claimed that it was nearly identical to an earlier report prepared by the previous expert. According to the Plaintiffs, Keystone initially sent a building consultant, along with its engineer, to inspect the property on August 25, 2023. The building consultant authored a report dated September 15, 2023, but left Keystone shortly thereafter.

    Subsequently, Keystone hired Treas to prepare a report to support its estimate of damages caused by Hurricanes Laura and Delta.  

    The Plaintiffs complained that: (1) the Treas report is identical to the previous expert report, (2) Treas is not a licensed adjuster, (3) Treas did not personally inspect the property, and (4) Treas was not involved in this matter until July 2024. Moreover, they identified discrepancies between the two reports, such as a missing fan on the rear elevation porch, the type of exterior cladding on the house, and the wrong address noted in the report. Additionally, they contended that Treas improperly opined on causation.

    Treas is not a licensed adjuster

    In response, LIGA defended Treas’ qualifications, citing his extensive experience in various construction roles, including the estimator and catastrophe claims adjuster. LIGA explained that Treas relied on Keystone’s engineer regarding causation in order to prepare an estimate to rebuild the property.

    Treas report is identical to the previous expert report

    Regarding the similarity between the reports, LIGA noted that Treas testified the first 12 pages should be the same because they list the background information about the property. However, several differences exist between the reports, including additional damages not mentioned in the previous expert’s report, as well as overall discrepancies in the estimated damages.

    Ultimately, the Court did not find that exclusion was warranted simply because the two reports were very similar. As to the discrepancies, the Court found that this will go to the credibility of the witness and his report. The Court further noted that the instant matter is a bench trial, and Plaintiffs will be able to cross-examine and rebut LIGA’s report and Treas’ testimony. 

    Held

    The Court denied the Plaintiffs’ motion to exclude the expert testimony of Daniel Treas.

    Key Takeaway:

    According to Federal Rule of Evidence 402, evidence is generally admissible so long as it is relevant and not barred by the Constitution, a federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court. Evidence should only be excluded in limine where it is “clearly inadmissible on all potential grounds.”

    The Court determined that the similarity between expert reports alone does not justify exclusion. It emphasized that any discrepancies identified concerned the credibility of the witness rather than the admissibility of the evidence. In a bench trial setting, Plaintiffs retain the opportunity to effectively cross-examine the expert. They can also challenge the opposing party’s findings. This underscores the importance of witness credibility in evaluating expert testimony.

    Case Details:

    Case Caption: Houston et al vs. Southern Fidelity Insurance Co.
    Docket Number:  2:22-CV-01198
    Court: United States District Court for the Western District of Louisiana, Lake Charles Division
    Order Date: October 1, 2024
  • Fraud Examination Expert Witness’ Testimony About the Effect of Misappropriated Trade Secrets Excluded

    Fraud Examination Expert Witness’ Testimony About the Effect of Misappropriated Trade Secrets Excluded

    This case stems from a trade secret dispute between University of Mississippi Medical Center (“UMMC”) and Defendant Dr. Spencer Sullivan, a former employee of UMMC. 

    The Court has resolved the issue of liability through its Order granting default judgment in favor of Plaintiff. The injury pleaded by UMMC is the loss of certain specific former UMMC hemophilia patients who transferred their medical treatment, including pharmacy services, to Mississippi Center for Advanced Medicine (“MCAM”) as a result of Defendants’ use of UMMC’s trade secrets. As it stands, it is conclusively established that MCAM’s misappropriation of UMMC’s trade secrets proximately caused those patients to leave UMMC for MCAM, and UMMC must now prove the amount of damages that naturally flow from those patients. The parties agree that the scope of damages is the only issue left to be tried.

    Plaintiff specifically moves to exclude “all of Justin Blok‘s opinions and testimony that are based on the rejected causation standard and that ignore the effect of the default judgment and other irrelevant opinions that touch upon liability.” 

    Fraud Examination Expert Witness

    Justin Blok has testified in a variety of litigation matters involving patent, trademark, and copyright infringement, theft of trade secrets, breach of contract, business valuation, bankruptcy, fraud, business interruption, personal injury, wrongful death, and wrongful termination. He has testified on
    behalf of both Plaintiffs and Defendants in the analysis and determination of economic damages, including lost profits, reasonable royalties, price erosion, unjust enrichment, diminution of value and insolvency analyses, valuation, and pre- and post-judgment interest.

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

    Discussion by the Court

     UMMC argued that portions of Blok’s report assumed Defendants were liable but did not correctly reflect the finding of liability established by this Court’s Order granting default judgment.

    Defendants contended Blok’s relevant testimony included “whether misappropriated trade secrets were legally available after a certain date, whether trade secrets were involved in certain patient interactions, the effect (if any) trade secrets had on Defendant MCAM’s pharmacy operations, and the like.” Defendants also stated that “Blok’s damages calculations are based, in part, on when MCAM legally obtained access to the trade secret information through uView or patient release forms.” Accordingly, Defendants argued that the Court should not preclude Blok from testifying as to the point at which Plaintiff’s damages no longer naturally flow from Defendant’s liability.

    UMMC’s reply emphasized that it did not seek to exclude Blok’s entire testimony but only the portions unrelated to damages. Plaintiff specifically referenced areas including whether the misappropriated trade secrets were legally available after a certain date, whether trade secrets were involved in certain patient interactions, and the effect trade secrets had on Defendant MCAM’s pharmacy operations.

    UMMC argued that each of these categories relate to causation for liability and not damages calculations. Plaintiff instead submitted that the current relevant areas include testimony relating to “alleged overstatement of MCAM’s gross profits, no analysis of MCAM’s actual reported operating profits, no analysis of MCAM’s clinic revenues or costs, or no analysis of certain pharmacy costs.”

    The Court held that while Defendants can still present evidence relevant to the appropriate damages calculation period, Defendants have not shown how the challenged areas of Blok’s testimony will help the jury determine the available damages in this matter. 

    Held

    The Court granted Plaintiff’s motion to exclude the challenged areas of Justin Blok’s testimony.

    Key Takeaway:

    Blok provided testimony relating to “whether misappropriated trade secrets were legally available after a certain date, whether trade secrets were involved in certain patient interactions, the effect (if any) trade secrets had on Defendant MCAM’s pharmacy operations, and the like.” However, the current relevant areas include testimony relating to “alleged overstatement of MCAM’s gross profits, no analysis of MCAM’s actual reported operating profits, no analysis of MCAM’s clinic revenues or costs, or no analysis of certain pharmacy costs.

    Case Details:

    Case Caption: The University Of Mississippi Medical Center V. Sullivan Et Al
    Docket Number: 3:19cv459
    Court: United States District Court for the Southern District of Mississippi, Northern Division
    Order Date: September 9, 2024
  • Economics Expert Witness’ Testimony About Hedonic Damages Limited

    Economics Expert Witness’ Testimony About Hedonic Damages Limited

    Plaintiff, Raul Rodriguez brought this suit to recover for personal injuries sustained by Plaintiff as a result of an accident which occurred on February 22, 2021 in Jal County, New Mexico on a well owned and operated by Defendant, Kaiser-Francis Oil Company. Rodriguez was an independent contractor attempting to open a ball valve on a skid mounted manifold which was built and maintained by Defendant, Flow Testing, Inc. on Defendant’s, Kaiser-Francis Oil Company, well when he fell causing personal injuries.

    Pursuant to Federal Rules of Evidence 401, 402, 403, and 702, Daubert v. MerrellDow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), Defendants ask the Court to exclude any testimony by M. Brian McDonald, Ph.D., pertaining to the computation or quantification of hedonic damages, or loss of enjoyment of life damages, including any benchmark figure corresponding to the value of life, and any testimony related to Value of a Statistical Life (“VSL”) studies.

    Economics Expert Witness

    Brian McDonald is an economist who served as the director of the Bureau of Business and Economic Research (BBER) at the University of New Mexico (UNM) from 1982 to 2000. Brian Earned his B.A. in economics from Georgetown University and went on to earn his Ph.D. in economics from The University of Pennsylvania

    During his tenure as director, McDonald oversaw research on the economic conditions of New Mexico, including analyzing the state’s energy sector, labor market, and income distribution. He also led efforts to expand the BBER’s outreach to the broader community by establishing partnerships with government agencies, businesses, and other organizations to provide economic analysis and forecasting.

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

    Discussion by the Court

    Plaintiff agreed that McDonald may not testify to a specific number or range for Plaintiff’s hedonic damages but argues that Defendants’ proposed limits on McDonald’s testimony are overbroad.

    Judge M. Christina Armijo excluded any attempt by McDonald to quantify the Plaintiff’s hedonic damages because “the majority rule in federal courts … is that expert testimony which places a dollar figure before the jury in an attempt to quantify the value of a human life is inadmissible and does not meet the relevance and reliability factors set forth in Daubert and its progeny.”

    The Court found Judge Armijo’s analysis persuasive and adopted it herein. In conclusion, McDonald’s testimony relating to hedonic damages will be limited to explaining the meaning of hedonic damages and areas of human experience that the jury may consider in quantifying such damages. The Court will not permit McDonald to provide any quantification of Plaintiff’s loss of enjoyment of life or to testify about the statistical value of life or studies related thereto because such testimony would be irrelevant, unreliable, and unfairly prejudicial. Nor will the Court permit McDonald to testify about or explain the caselaw regarding hedonic damages that he discusses at length in his report.

    Held

    The Court granted the Defendant’s motion to exclude any testimony by M. Brian McDonald insofar as McDonald may not testify about caselaw on hedonic damages but he may testify about other aspects of hedonic damages, including its definition and a general explanation of the components of an individual’s life that the trier of fact may consider in deciding whether to award hedonic damages and, if so, in what amount.

    Key Takeaway:

    It is well settled in the Tenth Circuit that an expert may not testify about his quantification of the value of Plaintiff’s hedonic damages. However, an economist expert may testify about the meaning of hedonic damages, how they differ from other damages, and areas of human experience to be considered in determining hedonic damages.

    Case Details:

    Case Caption: Rodriguez V. Kaiser-Francis Oil Company Et Al
    Docket Number: 1:22cv32
    Court: United States District Court, New Mexico
    Order Date: September 19, 2024