Expert Witness Profiler

Tag: Data

  • Accounting Expert Allowed to Opine on Net Service Level Payments

    Accounting Expert Allowed to Opine on Net Service Level Payments

    Plaintiffs The Avon Company and LG H&H Company, Ltd. (“Avon,” or Plaintiffs) brought this suit against Fareva Morton Grove, Inc. and Fareva S.A. (collectively “Fareva,” or Defendants) for a breach of their long-term Manufacturing and Supply Agreement (the “MSA”).

    Fareva filed a motion to exclude the testimony of Avon’s two experts, Anthony J. Campanelli and Brent K. Bersin on the grounds that their testimony is based on unreliable data.

    Accounting Expert Witnesses

    Anthony J. Campanelli is a Certified Public Accountant with more than 25 years of experience at Deloitte, one of the world’s largest and most respected accounting and consulting firms.

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

    Brent Kevin Bersin is a Senior Managing Director at FTI Consulting with 30 years of experience as an expert witness and consultant on valuation, financial and forensic accounting, and economic damages.

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

    Discussion by the Court

    Anthony Campanelli

    Campanelli will testify about the calculation of the Net Service Level Payments (“NSLPs”). The NSLPs are calculated based on Schedule D of the MSA, which sets out a formula that, put simply, considers when Fareva fulfilled Avon’s orders and when Avon placed those orders. The formula in Schedule D required a somewhat complex set of calculations, given the delivery and order timing inputs and different multipliers per product. In drafting his expert report and reaching his opinion, Campanelli relied on data provided by Avon regarding forecasts, orders, and delivery data from the relevant time period. Fareva argued that Campanelli’s opinion is not based on reliable data, that his calculations are inconsistent with the Schedule D formulas, and that the opinion improperly introduced contractual interpretations.

    Analysis

    First, the data relied upon by Campanelli are sufficiently reliable. The discrepancies that Fareva pointed to do not rise to the level of being “speculative or conjectural or based on assumptions that are so unrealistic.” Further, it was permissible for Campanelli to rely on the data provided by Avon. Even if Fareva’s “claims as to factual inaccuracies” in the underlying data and assumptions used by Campanelli were assumed true, Campanelli “at most had a few faulty inputs to an otherwise topical opinion on [the NSLPs]—this is thus not a case in which ‘there is simply too great an analytical gap between the data and the opinion proffered.’”

    Second, Fareva argued that Campanelli’s calculations are inconsistent with the MSA because they differ from calculations performed by PwC, Avon’s former expert. The discrepancy is explained by a reasoned choice in how Campanelli calculated the NSLPs, a choice which conformed with Fareva’s position on calculations and resulted in a lower damages claim. This is not a basis for rejecting Campanelli’s opinion.

    Third, Campanelli did not rely on improper assumptions or legal interpretations of the MSA in his calculations. While Fareva is correct that an expert may not make legal determinations interpreting a contract, Campanelli’s assumptions regarding the completeness of the data did not rise to the level of an impermissible contract interpretation.

    As a result, the Court denied Fareva’s motion to exclude the expert testimony of Campanelli.

    Brent Bersin

    Bersin will testify about Avon’s lost profits attributable to the lost sales of products that Fareva failed to produce or timely deliver. Bersin’s opinion is based on comparisons between Avon’s performance before and after the breach and on a benchmark comparison of the performance of the broader industry. Bersin relied on a subset of Avon’s North American sales data that captured the products produced by Fareva. Fareva argued that Bersin relied on unreliable and inaccurate data in his calculations, that he failed to disaggregate compounding factors, and his basis of benchmark comparison was unreliable.

    Analysis

    First, Fareva argued that the sales data relied upon by Bersin included products that Fareva did not produce, that there were other indicia of unreliability, and that Bersin failed to independently verify the data. As with Campanelli, any inconsistencies, which Avon also disputes factually, did not rise to the level of being “speculative or conjectural or based on assumptions that are so unrealistic.” And Bersin permissibly relied on the data provided by Avon in the ordinary course of business.

    Second, Fareva argued that Bersin improperly attributed all of Avon’s losses to Fareva, without disaggregating alternative sources of harm. This is insufficient to bar Bersin’s testimony. Bersin’s report acknowledged alternatives, noting that Avon’s oversales were declining and distinguishing between sales data in different product categories.

    Third, Fareva argued that Bersin relied on an insufficiently comparable benchmark for its benchmark analysis. Bersin relied upon the Statista data for the “Beauty & Personal Care market” in making his comparison. Fareva contended that using this market, without further analysis of the comparison between the companies within it, was improper, and that the market selected did not compare to Avon because the companies within did not use the same sales model as Avon. The Court disagreed. Bersin acknowledged that he considered the brands within the personal care market to be comparable when deciding to use them. It is reasonable to conceive of Avon as a beauty and personal care brand selling similar products to those in the comparison group. Bersin was not required, as Fareva suggests, to draw a comparison to groups based solely on distribution model that offer entirely different products from Avon.

    Therefore, the Court denied Fareva’s motion to exclude the testimony of Bersin.

    Held

    The Court denied Fareva’s motion to exclude the testimony of Anthony Campanelli and Brent Bersin.

    Key Takeaway

    Disputes as to the strength of an expert’s credentials, faults in his use of a particular methodology, or lack of textual authority for his opinion, go to the weight, not the admissibility of his testimony.

    Case Details:

    Case Caption: The Avon Company V. Fareva Morton Grove, Inc.
    Docket Number: 1:22cv4724
    Court Name: United States District Court, New York Southern
    Order Date: July 07, 2026
  • Statistics Expert Allowed to Opine on Over-Detention

    Statistics Expert Allowed to Opine on Over-Detention

    Plaintiffs Alanna Dunn, Reginald Haymon, Adam Day, Eric Zeider, Cameron Leonard, and Jason Wilson filed this class action alleging that the deliberate indifference of Cuyahoga County and the Cuyahoga County Sheriff’s Department caused them to be over-detained in the Cuyahoga County Jail after the legal basis for their detention ceased to exist.

    Plaintiffs retained Lacey Keller, a data scientist, as an expert witness to review and standardize files produced by the County relating to releases occurring between February 23, 2021 and December 31, 2023 while the County retained Dr. Sean Malone, a consultant who primarily works in statistics, finance, and economics, to rebut Keller’s analyses.

    The County sought to preclude Keller’s report while Plaintiffs sought to preclude Malone’s report.

    Data Science Expert Witness

    Lacey R. Keller is a seasoned data scientist with over 15 years of experience applying data to litigation, law enforcement, and investigations.

    She has been deposed nearly 30 times and has testified in over a half-dozen trials. She also joined the Washburn University faculty in 2025.

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

    Statistics Expert Witness

    Sean T. Malone is a consultant who primarily works in statistics, finance, and economics. He teaches finance and statistics at Trinity University.

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

    Discussion by the Court

    Lacey Keller

    Plaintiffs’ counsel asked Keller to conduct a variety of analyses, including calculating the time it took the County to release individuals after a triggering action, among other analyses on the timing of certain events relating to releases.

    For detainees with release-triggering event and no holds on their release, Keller found most were released in under 6 hours, and 95% were released in under 10 hours.

    In most cases, Keller found a booking hold added an additional 90 minutes to the release time. Once a booking hold was removed, the release usually occurred within the hour.

    Analysis

    The County argued that Keller’s report is unreliable and cannot be used to either (a) show the average time it took to release a detainee; or (b) ascertain whether a person is a member of the proposed class because the detainee’s time to release was greater than 12 hours.

    For the relevant time period, Keller identified 58,091 unique custody sessions. From there, Keller applied a series of exclusions to the data.

    The County argued that Keller’s methodology and opinions are unreliable because they solely rely on limited data not suited for determining release times.

    The County also faulted Keller’s report for not determining whether the data provided by Plaintiffs’ counsel could be used to determine actual time to release.

    First, information counsel provided to an expert does not render the opinions on which the expert relies insufficient. Second, there is a reasonable factual basis for Keller’s opinions. The report explained the sources from which the data came. It explained the exclusions applied to the custody sessions to obtain a sub-dataset that contains only custody sessions where there is an available release triggering event and subsequent release (among other information).

    Keller then explained how she conducted each calculation to arrive at her stated averages and conclusions. While the County vigorously challenges whether the underlying data can be used to calculate release times, those criticisms challenge the ultimate conclusions and not the reliability of Keller’s methodology or analysis.

    Whether the calculations are correct, accurate, or credible, is a separate question. As a result, the Court found that Keller’s methodology was reliable.

    Sean Malone

    Malone’s main conclusions are: Keller’s methodology for calculating time to release is unreliable because it is based on insufficient data and incomplete methods; Keller’s opinion is based on insufficient facts because it does not consider the individualized facts affecting time to release; Keller wrongfully groups together detainees leading to inaccurate time calculations; and Keller inappropriately excluded detainees which creates inaccurate time calculations.

    Analysis

    Plaintiffs argued that Malone is not qualified to opine on how to calculate over-detention of detainees because he is not an expert in release policies.

    Plaintiffs added that Malone’s expert opinions amount to “nothing more than legal conclusions about what facts are relevant and necessary” to an over-detention analysis.

    Lastly, Plaintiffs contended that Malone’s report is not the product of any reliable principles or methods.

    Malone’s experience in statistics plainly relates to his criticisms of Keller’s methodology for collecting data. It is appropriate for an expert in statistical analysis to criticize statistics prepared by another expert witness. And while Plaintiffs argued that Keller’s analysis is merely an “objective” calculation of the “time to release,” Malone’s report properly offered criticism of Keller’s underlying data, including her selection and purported manipulation of data. Malone’s criticism of the “limited” dataset Keller used to develop averages for “time to release” is appropriate rebuttal testimony.

    Because Malone is qualified to criticize the statistical analysis performed by Keller, and because his report properly challenges the data and methods used by Keller, the Court refused to exclude his report.

    Held

    • The Court denied the County’s motion in limine to preclude Lacey Keller’s expert report.
    • The Court denied the Plaintiffs’ motion to strike the expert report of Dr. Sean Malone.

    Key Takeaway

    Malone’s criticism of the dataset Keller used and the methods she used to calculate her “time to release” analysis is proper expert rebuttal.

    Case Details:

    Case Caption: Dunn V. Cuyahoga County
    Docket Number: 1:23cv364
    Court Name: United States District Court, Ohio Northern
    Order Date: March 31, 2026
  • Telephone Expert’s Testimony on the Reliability of Ytel Records Admitted

    Telephone Expert’s Testimony on the Reliability of Ytel Records Admitted

    Michael Anthony (“Plaintiff”) filed this putative class action against The Federal Savings Bank (“FSB”), National Bancorp Holdings, Inc. (“NBH”), and FDE Marketing Group, LLC (“FDE”) (collectively, “Defendants”), asserting violations of the Telephone Consumer Protection Act (“TCPA”).

    The Plaintiff filed a motion to bar defense expert Jan Kostyun while Defendants filed a cross-motion to bar Plaintiff’s expert Aaron D. Woolfson.

    Telecommunications Expert Witness

    Jan Kostyun is an independent technology consultant with over 35 years of experience covering the areas of telecommunications, enterprise architecture, and information technologies.

    He developed expertise in areas such as landline and wireless order entry, including the collection of subscriber contact information and initial implementation of the National Do Not Call registry and has extensive experience in database methodologies, data analysis, and data mining in addition to call center operations and various dialing systems, including those used for inbound and outbound calling campaigns. He has personally performed database queries and data analysis against hundreds of data stores [such as] National Do Not Call lists, Wireless Block identifiers, Number Portability transaction lists and telephone call records produced by both wireless carriers and businesses involved in dialing campaigns.

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

    Telephone Expert Witness

    Aaron David Woolfson has over 25 years of experience in developing and analyzing databases and telephone systems and establishing the interfaces between telephone systems and the networks that convey calls.

    He has been qualified as an expert in other TCPA cases requiring him to analyze call records and compare them against records of leads.

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

    Discussion by the Court

    Aaron Woolfson’s Expert Report

    Woolfson reached three conclusions after reviewing call detail records (“CDRs”) obtained from Ytel, FDE’s carrier: (1) that “there is a reliable method to identify which calls in the call records were made to telephone numbers (a) to which two or more times were called in a twelve month period by [FDE], and (b) that were registered with the [Registry] for more than thirty days before each of the calls”; (2) that “using the CDRs and Defendants’ call transfer logs, there is a reliable method to identify the calls in the CDRs that were to phone numbers that also appear in the call transfer log (“Live Transfers”); and (3) that he is “able to identify contact information, including names and mailing addresses, related to the individuals to whom the calls were placed, based upon the records that are maintained by phone carriers in their ordinary course of business.”

    Defendants’ critique of Woolfson’s opinion essentially falls into two buckets—(1) disagreements about how he interpreted certain datapoints to reach his specific conclusions; and (2) concerns about the difficulties of his proposed process for identifying class members.

    First, with respect to the underlying data relied upon by Woolfson, the parties agreed that the Ytel CDRs do not include call disposition information that affirmatively indicates if every telephone call placed by FDE actually connected to an active number on the Registry. Because of that, Woolfson determined that an appropriate measure of this critical detail was call duration.

    Specifically, Woolfson sufficiently explained the process he used to query the data and then analyze the output. Basically, the Court found that Defendants attacked the reliability of Woolfson’s conclusions and whether they
    are supported by the data, not the validity of the methodology he employed in forming his opinions.

    Jan Kostyun’s Rebuttal Expert Report

    Defendants offered the opinion of their rebuttal expert, Kostyun, in seeking to bar Woolfson’s testimony.

    Plaintiff contended that Kostyun’s methodology is not reproducible, as evidenced by his deposition testimony that he ran “hundreds and hundreds of queries against the data” which he cannot itemize or reproduce.

    Defendants explained that Kostyun’s analysis “was undertaken in a forensic manner” that involved both “simplistic” and “more complex” queries of the data, and the “entire database and structure” were produced to Plaintiff.

    However, Plaintiff never contended that Kostyun used an unacceptable methodology for the relevant industry. The Daubert inquiry focuses on assessing if Kostyun’s methodology lacks analytically sound bases, not if his rebuttal opinions are correct.

    Held

    The Court denied both Plaintiff’s motion to bar defense expert Jan Kostyun and Defendants’ cross-motion to bar Plaintiff’s expert Aaron Woolfson.

    Key Takeaway:

    Both sides argued at length in their extensive briefs that the opposing expert has erroneously interpreted the relevant data, and as a result, the opinions reached are wrong. But such “arguments about how the selection of data inputs affect the merits of the conclusions produced by an accepted methodology” are substantive considerations rather than proper Daubert challenges.

    Case Details:

    Case Caption: Anthony V. The Federal Savings Bank Et Al
    Docket Number: 1:21cv2509
    Court Name: United States District Court, Illinois Northern
    Order Date: September 23, 2025
  • Environmental Science Expert Witness’ Analysis of Historical Emissions Deemed Reliable

    Environmental Science Expert Witness’ Analysis of Historical Emissions Deemed Reliable

    Over sixty Plaintiffs alleged that Defendant Lockheed Martin Corporation’s weapons manufacturing facility in Orlando released toxic chemicals that contaminated the air, soil, and groundwater, leading to various injuries among the Plaintiffs. The instant case formed a part of a group of related toxic tort cases.

    Following a complex history during the dispositive motion stage, the Court resolved the general causation issues. It then shifted focus to specific causation for the limited number of remaining Plaintiffs.

    The Plaintiffs filed motions to exclude several of Defendant Lockheed Martin Corporation’s experts: Michael Ballenger, Kristine Davies, Dr. Rene’ Salazar, Stephen Emsbo-Mattingly, and Dr. Shahrokh Rouhani.

    Air Quality Expert Witnesses

    Michael Ballenger began his career with Trinity in Maryland, where he gained significant experience navigating the stringent environmental requirements of the Mid-Atlantic and Northeast. He has developed a specialty in air permitting and compliance by working with both industry and government to implement business objectives while conforming to complex environmental regulations such as MACT and Nonattainment New Source Review.

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

    P. Kristine Davies is a Principal Consultant in Trinity’s Salt Lake City Office. She specializes in regulatory applicability analysis, preparation of emission inventories, Nonattainment New Source Review (NNSR)/Prevention of Significant Deterioration (PSD) permit applications, Title V operating permit applications, and Maximum Achievable Control Technology (MACT) compliance. Since joining Trinity, she has assisted in permitting and compliance projects for facilities in every state and U.S. territory.

    Want to know more about the challenges P. Kristine Davies has faced? Get the full details with our Challenge Study report. 

    Industrial Hygiene Expert Witness

    Rene’ Salazar holds an undergraduate degree in Microbiology, and Master’s and Doctor of Philosophy degrees in Public Health, both with specialization in the discipline of Industrial Hygiene and has 30+ years of experience in the field of industrial hygiene, both academically and professionally.

    Discover more cases with Rene’ Salazar as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Environmental Science Expert Witnesses

    Stephen Emsbo-Mattingly possesses more than 30 years of applied chemistry experience. He specializes in the source identification of chlorinated organics, solvents, surfactants, petrochemicals, carbonization byproducts, paper mill wastes, heavy metals, metallurgical wastes, petroleum, fuels, tar, combustion byproducts, soot, ash, slag, dusts, emissions, coke, coal, radiological materials, hydraulic oils, lubricants, asphalts, pesticides, petrochemicals, dielectric fluids, Askarels, and other industrial products in various environmental media.

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

    Shahrokh Rouhani is an environmental scientist and professional engineer, a tenured university professor, and a consultant in environmental statistics, modeling, and data analysis. He holds  a Ph.D. in Environmental Sciences (1983) and an S.M. in Environmental Engineering (1980), both from Harvard University, as well as a B.S. in Civil Engineering and B.A. in Economics from the University of California, Berkeley (1978).

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

    Discussion by the Court

    Michael Ballenger

    First, Ballenger, an air quality engineer, is one of Lockheed’s rebuttal experts to Ranajit Sahu. Plaintiffs filed a motion to exclude his testimony, arguing essentially that Ballenger merely challenges the reliability of Sahu’s testimony rather than using reliable methodology of his own. But Ballenger’s opinions are admissible for the same reasons Sahu’s are: both sides disagree about the correctness of Sahu’s inputs on the air model and the accuracy of the emissions data provided by Lockheed, a classic clash of two qualified expert views the jury will have to weigh and decide. 

    Kristine Davies

    Davies is another air quality engineer rebutting Sahu’s and other testimony. Plaintiffs filed a motion to exclude her testimony largely for the same reasons as Ballenger—and for the same reasons, her rebuttal testimony is largely admissible.

    That said, the Court held that Davies’ report raises some red flags that can only be addressed fully in context at trial. As an expert, Davies may not testify that facts she was instructed to assume are true—she may only testify that she relied on certain facts as true in forming her conclusions.

    To the extent that certain sections of her report purport to introduce fact testimony, she will not be allowed to give improper lay testimony about facts for which she lacks personal knowledge, nor will she be allowed to indiscriminately merge together fact and expert testimony.

    If Davies did garner personal knowledge of information from Lockheed employees, that information (and the source of the information, including from whom and when it was received) either must have been fully disclosed in her report or must have been provided to Plaintiffs through discovery for her to be permitted to testify to those facts.

    This trial will not devolve into a game of gotcha: the facts are the facts and they must be known to both sides, and the experts can then interpret them as they may. To the extent Plaintiffs are concerned that Davies’ opinions lack support or stray beyond the scope of her expertise, the Court held that they can cross her on those grounds or present contrary evidence. 

    But to the extent Davies begins giving improper undisclosed fact testimony, Plaintiffs should contemporaneously object and the Court will be on guard to limit it.

    Rene Salazar

    Plaintiffs later filed a motion to exclude his testimony because he criticized Plaintiffs’ experts for not performing real-time exposure monitoring—which he purportedly later acknowledged to be impossible.

    The Court held that Salazar may properly point out what he perceives to be flaws in Sahu’s methodology; beyond that, holes in his own conclusions are material for Plaintiffs’ cross.

    Stephen Emsbo-Mattingly

    Plaintiffs filed a motion to exclude his testimony on several grounds. First, they complain about several issues with sampling data he took from a pilot study, arguing that he did not sample deep enough for subsurface soil and sampled from present day but extrapolated to historical conditions. But Emsbo-Mattingly sufficiently explained how he was using the current data to analyze historical emissions and why he sampled the way he did.

    The Court held that Plaintiffs’ other arguments against Emsbo-Mattingly are similarly unpersuasive—they simply disagree with his presumptions and the premise of his study, but a dispute about the correctness of his conclusions does not make his methodology unreliable.

    Dr. Shahrokh Rouhani

    Plaintiffs filed a motion to exclude Rouhani’s testimony purportedly for unreliable methodology—focusing on their competing theory of the case pertaining to historical emissions—but again, the Court held that their attacks amount to nothing more than disagreement with his conclusions and the bases therefore rather than Daubert challenges.

    Held

    Plaintiffs’ Daubert motions to exclude Michael Ballenger, Kristine Davies, Dr. Rene Salazar, Stephen Emsbo-Mattingly, and Dr. Shahrokh Rouhani are denied.

    Key Takeaway:

    Expert testimony may be admitted only if: (1) the expert is qualified; (2) the methodology is reliable; and (3) the testimony is helpful. The proponent of the expert must establish the opinion is admissible, but need not prove it is correct.

    The different experts in this case have different methods of trying to get at historical exposure data, and the perceived flaws in each approach are fodder for cross, not exclusion. 

    Please refer to the blog previously published about this case:

    Environmental Engineering Expert Witness’ Testimony on Toxic Chemical Exposure Admitted

    Case Details:

    Case Caption: Henderson Et Al V. Lockheed Martin Corporation Et Al
    Docket Number: 6:21cv1363
    Court: United States District Court, Florida Middle
    Order Date: December 19, 2024

  • Orthopedic Surgery Expert Witness Barred From Determining the Reasonable Cost of Medical Expenses

    Orthopedic Surgery Expert Witness Barred From Determining the Reasonable Cost of Medical Expenses

    Plaintiff, Mostafa Natour was injured in a car accident with a United States Postal Services delivery truck. Natour received medical treatment that consisted of imaging studies, chiropractic care, epidural injections, and pain management care. He sought to recover, among other things, his past medical expenses. Natour retained Alex Cruz, M.D. of Abacus Analytics as an expert on causation as well as the reasonableness and necessity of Natour’s medical expenses.

    The Government argued that Cruz’s testimony about the reasonableness of Natour’s medical expenses should be excluded because: (1) Cruz did not employ valid reasoning or methodology and thus offered an unreliable opinion; and (2) Cruz is unqualified.

    Orthopedic Surgery Expert Witness

    Dr. Alex Cruz is a distinguished orthopedic surgeon specializing in spine surgery, with extensive training and recognition in his field. He earned his MD at the University of South Florida, followed by an orthopedic surgical residency and a spine fellowship at Baylor College of Medicine and University of Wisconsin, respectively. Favored for his conservative, patientfocused approach, Cruz excels in performing minimally invasive procedures for a range of spine conditions. His work has earned him significant recognition, and he holds memberships in the North American Spine Society and the American Academy of Orthopedic Surgeons.

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

    Discussion by the Court

    Cruz testified that he did not utilize his own personal knowledge and experience when determining the reasonable cost of Natour’s medical care. Cruz instead relied solely upon the value generated by the Abacus Analytics website.

    To begin with, Cruz’s methodology for determining the reasonable cost of Natour’s medical expenses was very simple: he typed in the CPT code and zip code, and the database generated a range of values. He then used that output in his report. He does not know how the figure was determined. Neither does he know anything about the underlying data. Cruz disregarded his own experience, even when it conflicted with the information that the database was giving him. He cannot explain how the Abacus Analytics website determines the “UCR” value of medical services. At his deposition, he did not “recall how it’s done” or know how the website aggregated the data from the various “industry standard databases.” The Court held that Cruz did not know much about the data within the industry standard databases or the differences between them.

    He stated that his opinions relied on the Abacus Analytics website because he would “rather have [the UCR values] from an objective source” and did not “want to give . . . whatever [he thought was] correct . . . based on [his] own experiences.” Cruz stated that he never tried to make his own determination as to what the usual, customary and reasonable value was. The Court held that Cruz did not compare Natour’s charges to the amounts Cruz charges in his own medical practice or the amounts paid by the various private insurers with whom he works.

    In conclusion, Cruz’s expert opinions are not based on reliable data and are not the product of reliable principles and methods.

    Held

    The Court granted Defendant’s motion to exclude Plaintiff’s retained expert Dr. Alex Cruz.

    Key Takeaway:

    In the context of medical billing, courts have held that an expert’s testimony about the reasonableness of medical expenses may be admitted when the expert utilized reliable databases and explained the methodology for determining the value of the medical care provided. Cruz, however, cannot explain how the Abacus Analytics website determines the “UCR” value of medical services. Cruz did not employ valid reasoning or methodology and thus offered an unreliable opinion.

    Case Details:

    Case Caption: Natour V. United States Postal Service Et Al
    Docket Number: 4:23cv234
    Court: United States District Court, Texas Southern
    Order Date: August 05, 2024
  • Environmental Engineering Expert Witness’ Testimony About the Source of H2S is Not Fully Admissible

    Environmental Engineering Expert Witness’ Testimony About the Source of H2S is Not Fully Admissible

    This case concerns the operation of the Jefferson Parish Landfill in Waggaman, Louisiana (the “JPLF”), and the resulting odors emitted from the JPLF between July 1, 2017, and December 31, 2019 (the “relevant time period”). Plaintiffs, who are Jefferson Parish residents, filed several individual lawsuits that were consolidated into a mass action, Addison v. Louisiana Regional Landfill Co., which contains over 500 individual Plaintiffs.

    The Defendants asserted several “alternative source arguments,” including that: (1) Plaintiffs’ alleged damages were sustained in whole or in part as a result of intervening or superseding causes, including noxious odors originating from sources other than the JPLF; and (2) Plaintiffs’ claims are barred or diminished to the extent their injuries were caused by their own comparative fault or the comparative fault of third parties or sources of odors for which the Defendants are not responsible.

    Motion to preclude

    The Defendants engaged Matthew Stutz, P.E.—represented to be an expert in “landfill design, engineering, management, and operations”—to offer opinions about modeled emissions and emission rates of landfill gas and hydrogen sulfide (“H2S”) from the JPLF and two neighboring landfills, the River Birch Landfill (the “RBLF”) and the Highway 90 construction and demolition (“C&D”) Landfill (the “Hwy 90 Landfill” or “Hwy 90”).

    Stutz is also offered as a rebuttal expert to rebut the opinions of Plaintiffs’ experts, specifically regarding: (1) the generation and emissions of landfill gas and hydrogen sulfide; (2) the design, operation, and maintenance of the JPLF, including its cover, leachate, landfill gas, and odor control systems; and (3) the acceptance of nonhazardous industrial waste at the JPLF. Stutz expressed several opinions in his expert report (the “Stutz Report”) related to modeled gas generation and emissions estimates for the JPLF, the RBLF, and the Hwy 90 Landfill.

    Plaintiffs filed their Motion in Limine seeking to preclude Stutz from offering testimony related to certain opinions expressed in the Stutz Report under the law-of-the-case doctrine and Federal Rule of Evidence Rule 702.

    Environmental Engineering Expert Witness

    Matthew K. Stutz is a Principal with Weaver Consultants Group, LLC. He has extensive work experience in landfill gas collection and control system design, leachate systems, and air quality permitting and compliance, and he has prepared numerous landfill gas collection and control system designs, landfill gas evaluations, emission inventories, air quality permits, emission calculations, and odor control plans.

    Stutz received a Bachelor of Science in Civil/Environmental Engineering in 1997, from The University of Texas at Arlington. He currently serves on a panel of the U.S. Environmental Protection Agency (“EPA”) which provides comments on landfill air quality regulations.

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

    Discussion by the Court

    After preparing landfill gas generation models and emissions estimates for the JPLF, the RBLF, and the Hwy 90 Landfill, using mathematical analysis and relevant source material, Stutz expressed several opinions in his Report.

    Stutz’s testimony related to the Hwy 90 Landfill will be excluded under Rule 702

    Plaintiffs sought to exclude the portion of Opinion No. 2B in which Stutz opines “the Hwy 90 Landfill was the largest and most significant source of H2S emissions of the three landfills” during the relevant time period. The Stutz Report represents “[a] main component[] used in gas generation modeling is the concentration of the specific gas being modeled,” which in this case is H2S.

    After comparing the modeled H2S emission rates for the Hwy 90 Landfill, the RBLF, and the JPLF, Stutz concluded “the majority of H2S emissions during [the relevant time period] came from Hwy 90.”

    The Court found that the scant and uncharacteristic H2S concentration data from February 2008, on which Stutz based the Hwy 90 Model for the relevant time period, rendered Opinion No. 2B unreliable.

    In this case, Stutz relied on two data points collected on a single day nearly one decade before the relevant time period to derive the H2S concentration that informs his Hwy 90 Model. Hwy 90 records demonstrate the landfill experienced elevated H2S concentrations in 2008, which likely resulted from the burial of organic vegetative and gypsum sheetrock debris when the LDEQ designated the landfill an Emergency Debris Site post-Hurricane Katrina.

    The Court also found that the probative value of Stutz’s testimony on the Hwy 90 Landfill is substantially outweighed by the risk of misleading the jury. Thus, the Court will also exclude Stutz’s testimony related to the Hwy 90 Landfill under Rule 403.

    Stutz may offer testimony on the JPLF and the RBLF

    Stutz’s testimony on the JPLF and RBLF will not be excluded
    under Rule 702

    Plaintiffs also sought to exclude the portion of Opinion No. 2B in which Stutz expressed findings related to the JPLF and the RBLF under Rule 702. Plaintiffs argued Stutz improperly neglected to calculate the total H2S that may be generated from material at the landfills, which rendered his modeled H2S emissions from those facilities “nothing more than a wild guess.” Specifically, Plaintiffs claim Stutz’s modeled H2S emissions from the JPLF are not the product of reliable principles or methods because his model does not account for “the forty-six million [] pounds of spent lime buried in [Phase IVA].”

    The Court has reviewed the bases of the portions of Opinion No. 2B related to the JPLF and the RBLF. Unlike the H2S concentration used in his Hwy 90 Model, a review of Opinion Nos. 1B and 2B reveals the H2S concentrations Stutz used in the H2S Generation Models for the JPLF and the RBLF (the “JPLF Model” and “RBLF Model,” respectively) are more “grounded in the methods and procedures of science” than in Stutz’s unsupported speculative or subjective belief.

    With respect to the JPLF Model, Stutz represented he “uses the same average H2S concentrations as the Plaintiffs’ experts,” and Plaintiffs do not challenge this assertion. With respect to the RBLF Model, although Stutz’s H2S concentration is based on limited data, the H2S concentration is based on a study from June 2018, during the relevant time period.

    Stutz’s testimony on the JPLF will not be excluded under the law-of-the-case doctrine

    Plaintiffs sought to exclude the remaining contested opinions on the basis that the opinions relate to issues adjudicated in the general causation phase and should be excluded under the law-of-the-case doctrine.

    The Court has reviewed the Stutz Report and finds Plaintiffs’ argument is without merit. Table 4 of the Stutz Report provides a comparison of 2019 H2S concentrations at the JPLF, which identifies an average H2S concentration at the JPLF Phase IVA of: (1) 3,633 ppm (i.e., 3,633,000 ppb) collected inside the landfill; (2) 0.43 ppm (i.e., 430 ppb) at the landfill surface; and (3) 1.126 ppm (i.e., 1,126 ppb) collected from ambient readings at approximately three feet from the landfill surface. To the extent the Plaintiffs challenge Stutz’s opinions under the law-of-the-case doctrine, Stutz input the H2S concentration of 3,633 ppm into his JPLF Model for Phase IVA, which is the same figure relied upon by Plaintiffs’ H2S emissions model.

    Held

    The Court granted in part and denied in part the Plaintiffs’ motion to exclude expert testimony of Matthew Stutz. Stutz may not offer testimony related to the Hwy 90 Landfill. He may offer testimony related to the JPLF and the RBLF. Stutz may offer his rebuttal of Plaintiffs’ experts’ opinions on the JPLF and RBLF, as necessary, but may not offer rebuttal opinion related to the Hwy 90 Landfill.

    Key Takeaways:

    • Stutz offered no explanation as to the validity or general acceptance in the scientific community of his methodology for deriving an H2S concentration based on such scant and uncharacteristic data.
    • To the extent Plaintiffs challenge Stutz’s omission of site-specific data, including his failure to calculate the total H2S generated at the landfills, the Court finds these concerns go to the weight of Stutz’s opinions rather than their reliability and should be left for the factfinder’s consideration.

    Case Details:

    Case Caption: Addison, Et Al. V. Louisiana Regional Landfill Company, Et Al
    Docket Number: 2:19cv11133
    Court: United States District Court, Louisiana Eastern
    Order Date: July 31, 2024
  • Accounting Expert Witness’ Report Indicated Missing Data Points

    Accounting Expert Witness’ Report Indicated Missing Data Points

    Between 1983 and 1986, MSI, a music company solely owned by Nealy, engaged a number of recording artists and created a catalog of popular sound recordings and musical compositions. MSI was administratively dissolved in 1986, and Nealy was arrested and later sentenced to a twenty (20) year prison term in late 1988. During Nealy’s first incarceration from 1988 to 2008, unbeknownst to and without authorization from Nealy, former MSI Vice President, producer, and recording artist, Tony Butler (“Butler”) began unlawfully transferring rights to use and exploit the Subject Musical Works.

    Defendant Artist Publishing Group LLC’s (“APG”) entered into a publishing agreement with the author of the compositions at issue in this case, Tony butler, through his wholly owned company, 321 Music, LLC, pursuant to which APG agreed, inter alia, to license certain musical compositions authored by Butler to third parties, for which APG was paid a percentage of the royalties earned from those efforts (the “APG/321 Music Agreement”).

    As part of a separate administration agreement between APG and Defendant Warner Chappell Music, Inc.’s (“WC”), WC assumed certain of APG’s duties in the APG/321 Music Agreement, including licensing the musical compositions to third parties in exchange for licensing fees and royalties. It was alleged that no monies earned from the licensing of the compositions at issue in this case were ever received by APG, other than the royalties it was entitled to receive as publisher pursuant to its publishing agreement with 321 Music, LLC. Those monies have been accounted to Plaintiffs in discovery in this case, totaling $125,738.81.

    Both WC and APG filed Daubert motions to exclude the testimony of John Menneci.

    Accounting Expert Witness

    John Menneci joined Gelfand, Rennert & Feldman (GRF) in 2001 and works out of its White Plains, New York office. He currently co-heads the New York arm of GRF’s New York Royalty Examination Group.

    John specializes in conducting royalty examinations on behalf of prominent recording artists, songwriters and merchandise licensors and has over 25 years of experience in this field. He has travelled across the globe to conduct examinations on behalf of the firm’s clients and has audited an array of different licensees in both the physical and digital space with great success. John also specializes in conducting due diligence and valuations in connection with copyright acquisitions and estate tax matters.

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

    Discussion by the Court

    The Menneci Report formed the basis for two opinions: (1) Defendants received $410,920.10 in gross publishing income from copyright infringements and (2) Defendants, or parties connected to Defendants, received $54,960,000 in master recording income from copyright infringement of Plaintiffs’ works.

    Menneci’s conclusion that Defendants, or parties connected to Defendants, received $54,960,000 in master recording income from copyright infringement of Plaintiffs’ works must be excluded

    Starting first with the eye-popping damages figure of almost $55 million, the Court held that the Report did not specify how Menneci reached this conclusion. Indeed, when asked several different times at the Hearing to provide either the methodology or data utilized in reaching this astronomical figure, Plaintiffs’ counsel was unable to provide a response. Even when the Court broke the inquiry down further by asking Plaintiffs’ counsel to explain how Menneci calculated alleged foreign income through some sort of extrapolation, Plaintiffs’ counsel was simply unable to proffer or explain the methodology employed by his damages expert.

    Also, Menneci relied on whole album sales, despite the fact that only a handful of isolated tracks remain at issue in this case. In conclusion, Menneci’s calculation includes revenue generated from individual tracks not at issue here, as well as album versions that do not include a single track at issue in this case.

    Menneci’s conclusion that Defendants received $410,920.10 in gross publishing income from copyright infringements must also be excluded

    The Court noted that Menneci improperly included funds received by other entities in his calculations—apparently on a theory of contributory infringement by non-party Interscope Records.

    In addition to being premised on an incorrect theory of recovery, Menneci’s conclusion that Defendants received $410,920.10 in gross publishing income from copyright infringements is not based on sufficient facts and data or reliable principles or methods.

    Further, since these monies are not accounted for in the financial documentation produced by Warner Chappell, Menneci conceded that he “estimated” the songwriter’s share of performance income based on his “assumption” that “music publishing income is generally split 50/50 between the [song]writer and publisher.” Similarly, Menneci improperly assumed that Warner Chappell administered 100% of the musical composition for “Weekends”—when in reality, Warner only received 33% of the publishing monies. The Court held that such assumptions fail to meet the standard imposed by Rule 702 for expert testimony.

    However, the Court will bifurcate this trial as to liability and damages. During the initial liability phase, Plaintiffs may attempt to establish that Defendants
    should be held jointly and severally liable for the profits of other entities given the existence of a “practical partner” relationship. If the jury returns an initial verdict finding that Plaintiffs have established either a practical partnership or predicate act, the Court will hold a brief status conference with the parties as to how Plaintiffs intend to prove their joint and several damages and foreign profits damages, given that the Menneci Report is excluded in its entirety under Rule 702.

    Held

    The Court granted Warner’s Daubert motion to exclude the testimony of John Menneci but denied as moot APG’s Daubert motion.

    Key Takeaway:

    The Court decided that even a cursory review of the Menneci Report—which spans a mere five pages—indicated significant gaps in methodology and numerous missing data points. Menneci’s deposition did little to clarify his methods; on the contrary, the lack of reliable methodology was further exposed and made even more readily apparent.

    Case Details:

    Case Caption: Nealy Et Al V. Atlantic Recording Corp. Et Al
    Docket Number: 1:18cv25474
    Court: United States District Court, Florida Southern
    Order Date: July 17, 2024
  • Market Research Expert Witness’ Testimony Deemed Admissible Because of His Experience Conducting Surveys

    Market Research Expert Witness’ Testimony Deemed Admissible Because of His Experience Conducting Surveys

    Plaintiff, Wheel Pros, LLC and Defendants, Rhino Tire USA, LLC are engaged in the business of selling wheels and tires for vehicles and each owns trademarks in its respective brand. Wheel Pros owns various trademarks related to its “Black Rhino” brand and Rhino Tire own trademarks for their “Rhino” brand.

    Plaintiff brought this action against Defendants for trademark infringement alleging the the public is likely to be confused by the similarities between the marks. In support of its case, Plaintiff proffered the expert report of Dr. Robert A. Peterson. Peterson conducted a forward likelihood of confusion survey designed to determine the likelihood of confusion between Plaintiff’s “Black Rhino” trademarks and Defendant’s “Rhino” trademarks within a target universe of survey respondents.

    In rebuttal to Peterson’s report, Defendants proffered the expert report of Dr. Henry D. Ostberg. Ostberg offered opinions as to what he termed “significant problems and fatal defects” with Peterson’s survey.

    Plaintiff filed a motion to exclude Ostberg’s rebuttal expert report and preclude him from testifying at trial pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow. Pharm., Inc., 509 U.S. 579 (1993).

    Market Research Expert Witness

    Henry D. Ostberg has over 40 years of experience in conducting marketing research and has conducted or overseen over 2,000 consumer surveys for various clients over that time. He earned an M.B.A. degree and a Ph.D. degree in marketing from Ohio State University and earned an L.L.B. law degree from New York Law School. Moreover, Ostberg has served as a marketing research expert in connection with trademark and intellectual property litigation in over 200 cases, has been a frequent speaker “on the subject of marketing, the use of surveys and related topics before a variety of professional organizations,” and was on the faculty of both New York University and Ohio State University.

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

    Discussion by the Court

    Dr. Ostberg’s Qualifications to Testify

    First, Plaintiff argued that Ostberg was not qualified because he testified and stated in his report that he was not familiar with Peterson’s methodology.

    At his deposition, Ostberg admitted his lack of familiarity with Peterson’s “modified sequential evaluation” approach. However, Ostberg made these statements based on his experience in the field of conducting surveys in similar circumstances rather than due to any purported lack of experience or qualification.

    Upon consideration of Ostberg’s qualifications, the Court held that he is sufficiently qualified to criticize Peterson’s methodology in his rebuttal report and at trial.

    Reliability of Opinions

    1. Improper Research Design

    To begin with, Plaintiff argued that Ostberg’s opinions were unreliable because his conclusions were not based on his status as an expert or any research into that area, he was not familiar with the method employed by Peterson, and he mischaracterized the way in which Peterson’s survey was conducted.

    The Court found that Ostberg relied on his experience in conducting surveys under similar circumstances, his review of Defendants’ website in marketing its products, conversations with Defendants’ attorney, and his experience as a consumer to conclude that the methodology employed by Peterson was inappropriate.

    In other words, Ostberg’s methodology in criticizing Peterson’s research design was sufficiently reliable to permit his testimony at trial.

    2. Wrong Respondents Interviewed

    Ostberg next opined that Peterson’s survey was flawed because it failed to base its data on respondents who were likely to be future purchasers of Defendants’ products.

    The Court found Ostberg’s methodology in raising such “technical deficiencies” with Peterson’s survey pursuant to the prevailing literature and practice to be sufficiently reliable to survive Plaintiff’s Daubert motion.

    3. Research Design Changed Midway

    Ostberg criticized Peterson’s use of a pilot study that resulted in a change to the survey. In particular, Ostberg stated that Peterson’s report failed to include a “credible explanation” for modifying his survey after the pilot study. The Court found Ostberg’s methodology in reaching this opinion sufficiently reliable. In other words, Plaintiff’s arguments challenging this opinion largely go towards whether Ostberg reached the right conclusion in applying his method and are therefore inappropriate to justify excluding Ostberg at this stage.

    4. Inappropriate Statistical Calculations

    Ostberg also opined regarding the statistical calculations in Peterson’s survey. Specifically, Ostberg noted that Peterson’s survey “did not have a probability sample,” yet the statistical calculations used are “applicable only to surveys based on true probability samples of respondents, according to many statistical texts.”

    The Court noted Ostberg’s experience conducting consumer surveys in trademark litigation and, once again, found Ostberg’s method sufficiently reliable to permit his testimony.

    5. Internal Data Casts Doubt on the Validity of the Findings

    Now, Ostberg opined that the data collected in Peterson’s control group survey casts doubt on the validity of the survey itself because a 51.7% likelihood of confusion between Plaintiff’s trademark and the non-infringing control mark was abnormally high. Ostberg’s conclusion in this opinion did not cite to specific authority, but rather impliedly relied on his own education and experience with conducting similar surveys for over four decades. As with Ostberg’s other opinions, the Court found this opinion sufficiently reliable to preclude exclusion of the opinion at this stage.

    Helpfulness to Trier of Fact

    Finally, Plaintiff argued that Ostberg’s opinions will not be helpful to the jury.

    The Court held that since Ostberg is being proffered to criticize Peterson’s forward likelihood of confusion survey, a technical matter in which Ostberg has sufficient experience and that is beyond the understanding of the average lay person, Ostberg’s opinions will be of assistance to the jury at trial.

    Held

    To conclude, the Court denied Plaintiff’s Daubert motion to strike testimony and opinions of Henry D. Ostberg, Ph.D.

    Key Takeaways:

    • Ostberg relied on his experience in conducting surveys under similar circumstances, his review of Defendants’ website for marketing their products, conversations with Defendants’ attorney, and his experience as a consumer to reach his conclusions.
    • Moreover, Ostberg’s analysis is grounded in his experience conducting consumer surveys in trademark litigation, as well as scholarly literature regarding the type of statistical analysis necessary in the survey conducted by Peterson.
    • Because Peterson’s forward likelihood of confusion survey is a technical matter that is beyond the understanding of the average lay person, Ostberg’s opinions were considered helpful to the trier of fact.

    Case Details:

    Case Caption: Wheel Pros, Llc V. Rhino Tire Usa, Llc Et Al
    Docket Number: 6:22cv2171
    Court: United States District Court, Florida Middle
    Order Date: July 18, 2024