Expert Witness Profiler

Tag: Daubert Motion

  • Consumer Confusion Survey Conducted by Survey Research Expert Witness held to be based on a Reliable Methodology

    Consumer Confusion Survey Conducted by Survey Research Expert Witness held to be based on a Reliable Methodology

    Plaintiffs, Lincare Holdings Inc.’s and Lincare Licensing Inc.’s (collectively “Lincare”) are national health care companies that provide patients “with top quality treatments and durable medical equipment.” Plaintiffs’ “portfolio includes healthcare goods and services offered in connection with the trademarks LINCARE, mdINR, CONVACARE, AMERICAN HOMEPATIENT, PREFERRED HOMECARE, and the trade name SPECIALIZED MEDICAL SERVICES.” Defendant Doxo, Inc. (“Doxo”) runs an all-inone bill pay service that allows users to pay bills to over 120,000 billers using Doxo’s website. Doxo, although unaffiliated with Plaintiffs, included Plaintiffs as billers that can be paid through Doxo’s website. Doxo’s biller pages for Plaintiffs included the use of Plaintiffs’ trademarks and trade name. Plaintiffs initiated this action against Doxo on October 13, 2022, asserting claims for trademark and service mark infringement in violation of Section 32 of the Lanham Act (Count 1); false representation and false designation of origin in violation of Section 43(a) of the Lanham Act (Count 2); unfair competition in violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) (Count 3); trademark infringement, trade name infringement, and unfair competition under Florida common law (Count 4); and tortious interference with business relationships (Count 5).

    Doxo accused Lincare of attempting to use several forms of inadmissible
    evidence as a result of which Doxo sought to exclude (1) Lincare’s various call logs prepared by its customer support agents, which constituted unreliable, inadmissible, and often multilayered hearsay, (2) all evidence of, or testimony relating to, cease and desist letters sent to Doxo by third-party billers, as well as any third-party complaints or disputes that involve marks not at issue here and were not fully adjudicated as well as (3) Sarah Butler’s testimony regarding Lincare’s trademarks other than LINCARE.

    Survey Research Expert Witness

    Sarah Butler is a highly esteemed expert in survey research and sampling, boasting over 20 years of experience in designing and executing intricate consulting projects for clients involved in litigation, arbitration, regulatory proceedings, and business strategy. Her expertise extends to advising prominent brands such as Apple, Walmart, Toyota, and Gatorade. Notably, her research and testimony have been widely recognized and accepted in both state and federal courts, including bench and jury trials, as well as by regulatory bodies like the ITC and the Copyright Board, along with arbitration venues.

    Discussion by the Court

    First, Doxo argued that the Court should exclude Lincare’s various call logs prepared by its customer support agents since the call logs were neither recordings nor verbatim transcriptions of actual words spoken by Lincare’s customers. Instead, they reflected the employees’ characterizations of the conversation, biased by the employees’ express instructions from their superiors to uncover evidence of confusion in support of this case.

    The Court observed that the call logs/notes consisted of two layers of statements: (1) the notes written by Plaintiffs’ customer representatives, for which the customer representatives are the declarants; and (2) the statements of Plaintiffs’ customers made to and recorded by the customer representatives, for which the customers are the declarants. Under Federal Rule of Evidence 805, “hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.”  Thus, both layers of double hearsay must satisfy a hearsay exception to be admissible. Alternatively, there would be no hearsay within hearsay problem if the customers’ statements recorded within the notes did not constitute hearsay.

    The Court agreed with Plaintiffs that the customers’ statements to Plaintiffs’ customer representatives were not hearsay or were subject to the state of mind exception to hearsay.

    Next, Doxo argued that the evidence of cease and desist letters sent to Doxo by third-party billers, as well as any third-party complaints or disputes that involved marks not at issue here and were not fully adjudicated were irrelevant because “documents specific to one trademark are largely irrelevant to a claim for infringement of an entirely separate mark.” Additionally, Doxo maintained that mere complaints by third parties about alleged infringement were not relevant to the willfulness of Doxo’s infringement.

    The Court held that the letters were relevant to Doxo’s intent, bad faith, and willfulness in using Plaintiffs’ trademarks since the cease-and-desist letters and other third-party disputes put Doxo on notice that other businesses believed that Doxo’s use of their trademarks on its website infringed their trademarks. But — as Plaintiffs tell it — Doxo continued to prominently use various businesses’ trademarks, including Plaintiffs’ trademarks, on its website in the same way despite this notice.

    Finally, Doxo contended that Plaintiffs’ survey expert, Sarah Butler, should not have been able to offer opinions regarding Plaintiffs’ trademarks besides the LINCARE mark. It emphasized that Butler’s survey only involved the LINCARE mark and, thus, her opinion stated in her report that there was “no reason to believe [that her] conclusions as to confusion would differ for” Plaintiffs’ other marks should not have been admissible. The Court held that Doxo neglected addressing the Federal Rules of Evidence in support of this section of its
    Motion. Instead, Doxo cited law regarding expert reports and at least one case deciding a Daubert motion rather than a motion in limine.

    It was worth noting that Doxo had previously filed a Daubert motion targeting Butler’s testimony. When Butler had described the consumer confusion survey she conducted for the LINCARE mark, Doxo had argued that her opinions lacked reliable methodology. Doxo alleged that Butler’s survey consisted of numerous flaws concerning the survey population, the marketplace conditions, the control group, and the allegedly vague questions asked. The Court denied Doxo’s Daubert motion after acknowledging that Butler’s methodology in conducting her survey was reliable enough for it to be presented to the jury.

    The Court determined that to the extent Doxo could be interpreted as raising a challenge to the admissibility of Butler’s opinion under the Federal Rules of Evidence, that challenge likewise failed. Butler’s opinion regarding these trademarks was held to be relevant to the trademark infringement claims and exclusion under Rule 403 was unwarranted. Doxo was free to cross-examine Butler and raise arguments at trial about the weight to be accorded to her opinions.

    Held

    The Court denied the Defendant’s motions in limine to exclude Lincare’s unreliable call log, evidence regarding third-party disputes, and Sarah Butler’s testimony regarding Lincare’s trademarks other than LINCARE.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    Regardless of the challenges to Sarah Butler’s methodology in a Daubert motion, the Court ultimately deemed her survey reliable enough for presentation to the jury, emphasizing the importance of demonstrating methodological soundness in expert opinions. Additionally, arguments regarding the scope of expert opinions were addressed, with the Court dismissing Doxo’s contention that Butler should only offer opinions on the LINCARE mark as unsupported by relevant legal standards. The Court emphasized the importance of applying the Federal Rules of Evidence and relevant legal standards in evaluating the admissibility and scope of expert testimony to ensure consistency and fairness across cases. Vigorous cross-examination — rather than exclusion — was advocated as the proper means of challenging Butler’s opinions

    Case Details:

    Case Caption: Lincare Holdings Inc. Et Al V. Doxo, Inc.
    Docket Number: 8:22cv2349
    Court: United States District Court, Florida Middle
    Citation: 2024 U.S. Dist. LEXIS 34899
    Order Date: February 29, 2024

  • Infectious Disease Expert Witness Testimony on “Regulatory Approval of HIV Rapid Test to Screen Blood Donors” Excluded 

    Infectious Disease Expert Witness Testimony on “Regulatory Approval of HIV Rapid Test to Screen Blood Donors” Excluded 

    Mariette Waters was on a cruise ship when she had a medical emergency necessitating a blood transfusion. Since the cruise ship operator did not store blood on the vessel for transfusions, it began to solicit passengers to donate blood via the public announcement system. The cruise operator then screened the potential donors, their donated blood, and administered the transfusion. Waters later sued the cruise ship operator, alleging that during this process, it administered a transfusion with HIV infected blood.

    Waters alleged three counts of negligence:

    • medical negligence (Count I);
    • vicarious liability for medical negligence based on actual agency (Count II); and
    • vicarious liability for medical negligence based upon apparent agency (Count III)

    The Defendant retained Jeffrey Klausner, an infectious disease expert witness to testify in this case. One of the issues that Klausner sought to opine was the use of a particular testing kit by the Defendant — the MedMira Multiplo HBc/HIV/HCV test – and its approval status by regulatory authorities in different jurisdictions.

    Note: MedMira is not a party to this litigation.

    Waters moved to exclude testimony and opinions from Defendant’s HIV expert, Jeffrey Klausner, specifically, statements asserting approval of the MedMira Multiplo HBc/HIV/HCV test by any regulatory body in any country in the world. Additionally, Plaintiff sought to preclude Klausner from referring to a separate study he had conducted in Peru, involving a different HIV rapid test, in order to assess the sensitivity or reliability of the test used by the Defendant in this case.

    Infectious Disease Expert Witness

    Dr. Jeffrey D. Klausner, M.D., M.P.H., the subject matter expert in HIV at the U.S. Centers for Disease Control and World Health Organization, holds certification in Infectious Disease and Internal Medicine. He graduated with Honors from Cornell University Medical College and has a Master of Public Health in International Health and Infectious Disease Epidemiology from the Harvard School of Public Health. He has two professorships at the Keck School of Medicine, University of Southern California, and prior at the David Geffen School of Medicine and Public Health at the University of California Los Angeles. Klausner has authored over 650 peer-reviewed research papers on infectious diseases, with a particular focus on HIV/AIDS.

    Discussion by the Court

    Plaintiff claimed that during testimony, Klausner stated his belief that the specific model of HIV rapid test used by the Defendant, the MedMira Multiple HBc/HIV/HCV test (“Subject Test”), possessed regulatory approval in Canada and the European Union through the respective regulatory bodies. With regard to the European Union approval, Klausner initially thought he saw the relevant marking on the Subject Test box, but when presented with the box during deposition, the marking was absent. Klausner then conceded that he believed in European Union approval of the Subject Test, but had no knowledge or opinion on the matter. Regarding regulatory approval in Canada, Klausner testified that he thought he saw documents indicating approval by Health Canada, the regulatory body for Canada for the Subject Test. However, when questioned about providing any basis, data, document, or evidence for this approval, Klausner replied in the negative.

    Plaintiff contended that, according to Daubert, an expert is obligated to have a “sufficient basis” for their testimonial evidence. Plaintiff argued that the expert had no basis, leading to the request for the preclusion of his testimony on this particular topic during the trial.

    The Defendant countered by stating that Klausner had no intention of expressing an opinion about regulatory approval for the Subject Test. However, the Defendant requested the Court to allow Klausner to testify that the Subject Test shares a common underlying technology with another product from the same manufacturer, MedMira. Notably, the mentioned product does possess some degree of FDA approval.

    The Court, after reviewing the record, including the deposition, concluded that there is sufficient support for precluding Klausner’s testimony regarding any regulatory approval that the Subject Test has or does not have from any country worldwide. Consequently, Plaintiff’s first motion was granted.

    Plaintiff contended that Klausner’s opinions, derived from the Peru Study, lacked reliability and utility under Daubert, as there was no justification for imputing the study’s findings to the Subject Test. The Plaintiff argued that the tests were substantially different, with the Peru Study involving the MedMira Multiplo TP/HIV rapid test (“Multiplo”) that screens for HIV and syphilis. In contrast, the Subject Test, used aboard Defendant’s vessel and in its medical center, tests for HIV, Hepatitis B, and Hepatitis C. Despite Klausner acknowledging that Multiplo was not used by the Defendant, he expressed an expectation of similarity due to both tests being manufactured by the same company. Plaintiff asserted that such an insufficient basis for an expert opinion could mislead the jury, characterizing the testimony as lacking data, unreliable principles, and unreliable application of principles to the case’s facts.

    To support the argument, the Plaintiff referenced the case Pessman v. Trek Bicycle Corp., 3:18-cv-50243 (N.D. Ill. Dec. 6, 2021). In Pessman, an expert’s testimony was excluded under Daubert for attempting to impute the defects of one bicycle model to a different model produced by the same manufacturer. The Court in Pessman emphasized that the expert had not sufficiently explained the scientific methodology behind his conclusion and stressed the necessity for expert opinions to be backed by “appropriate validation.”

    In response, the Defendant with a review of Klausner’s qualifications, emphasizing that the Plaintiff had overlooked this aspect of the analysis. Klausner, a distinguished expert, graduated with Honors from Cornell Medical School and earned a Master of Public Health in International Health and Infectious Disease Epidemiology from the Harvard School of Public Health. Holding two professorships at the Keck School of Medicine, University of Southern California, Klausner served as the subject matter expert in HIV at both the U.S. Centers for Disease Control and the World Health Organization. His extensive expertise is further highlighted by his authorship of over 650 peer-reviewed research papers on infectious diseases, specifically focusing on HIV/AIDS. The Defendant contended that these qualifications affirm Klausner’s expertise and qualify him to opine on the subject matter.

    In Klausner’s expert report, he expressed the opinion that the Multiplo test utilized in the Peru Study showcased “excellent performance in detecting HIV antibodies.” The Defendant argued that the Multiplo Test, manufactured by MedMira, a Canadian biotechnology company, is similar to the Subject Test as both are rapid tests designed to detect HIV antibodies. Emphasizing that MedMira holds the patent on Rapid Vertical Flow Technology (“RVF”), the Defendant highlighted that MedMira produces various healthcare products for the rapid testing of infectious diseases, such as HIV, hepatitis, and syphilis. RVF serves as the “core engine” for MedMira’s rapid testing solutions, encompassing the Subject Test, the Multiplo Test used in the Peru Study, and the MedMira Reveal G2 Rapid HIV-1 Antibody Test (“Reveal Test”). Notably, the Reveal Test obtained FDA approval on June 23, 2004. The Defendant contended that the shared RVF technology establishes a sufficient connection, indicating that regulatory approvals or field studies related to Multiplo or Reveal are pertinent and adequate to demonstrate the performance of other MedMira HIV rapid antibody tests, including the Subject Test.

    The Defendant argued that Klausner’s various opinions supported the conclusion that different MedMira tests, including the Subject Test, share similarities. Klausner testified that MedMira products utilize the same HIV antibody detection technology, specifically the RVF technology, which had received FDA approval. Furthermore, Klausner stated that within the MedMira portfolio of tests, there would be an increased similarity between antigens used and the mechanisms of antibody detection. He also noted that there would be greater similarity between MedMira’s manufactured HIV antibody tests than there would be between different manufacturers’ products. These statements were presented by the Defendant as evidence supporting the contention that the various MedMira rapid tests, including the Subject Test, exhibit similarities.

    The Defendant further argued that Plaintiff’s HIV expert lacked a basis to challenge the assertion that the RVF technology, approved by the FDA for testing HIV antibodies in the Reveal Test, is identical to the technology employed in the Subject Test. Consequently, the Defendant maintained that there was enough evidence of similarities among various MedMira HIV antibody rapid tests, justifying the utilization of Klausner’s Peru Study to demonstrate the performance of MedMira HIV rapid antibody testing technology.

    The Defendant contended that Plaintiff’s reliance on the Pessman case was misplaced. In Pessman, the expert relied on information due to a product recall and speculation that issues spread to other models within that manufacturer’s portfolio of products. The Defendant argued that Plaintiff’s contentions pertained more to the weight the jury should assign to the expert opinion rather than its admissibility. Defendant also contended that the Supreme Court has acknowledged the district court’s “broad latitude” in permitting expert testimony grounded in “professional studies or personal experience.”

    Furthermore, the Defendant argued that Klausner’s testimony should be deemed admissible because the opposing party has the opportunity to scrutinize the factual basis for the opinion during cross-examination. The Defendant cited the principle that expert opinions should only be excluded when they are so fundamentally unsupported that they provide no assistance to the jury. Consequently, the Defendant concluded that Klausner’s expert opinion was admissible, and any challenges to his opinions could be addressed during cross-examination by the Plaintiff.

    In response, the Plaintiff contended that the Defendant’s attempt to establish a basis for admitting expert testimony, grounded in the shared use of RVF technology to assert a substantial similarity between the Multiplo Test used in the Peru Study and the Subject Test used by Defendant, was unfounded and flawed. Plaintiff argued that this claim lacked support from Klausner, as he neither mentioned RVF technology in his deposition nor opined that the tests’ similarity was based on its shared use. Plaintiff asserted that relying solely on this asserted commonality was irrelevant, incapable of establishing reliability, and deemed improper when imputing the results of one test to another.

    The Court determined that Klausner’s testimony lacked both reliability and helpfulness to the trier of fact. Consequently, he was precluded from asserting that findings from the Peru Study, specifically related to the Multiplo test, had any relevance to the reliability of the Subject Test employed by the Defendant.

    The Court clarified that the reliability of the Peru Study itself was not under scrutiny; instead, the issue revolved around the application of that study’s findings to the specific facts of this case.

    The Court observed that the process of imputing findings from the Peru Study to the Subject Test necessitates an assessment of the RVF Technology. Although RVF technology may serve as a connecting feature among three MedMira tests, including the Subject Test, the Defendant did not argue that RVF is the actual technology responsible for detecting HIV antibodies. Rather, the Rapid Vertical Flow (RVF) technology facilitates the swift delivery of blood specimens to the elements within rapid HIV tests, enhancing the speed of antibody detection. Notably, the Court highlighted that Klausner did not testify that the shared RVF technology constituted a sufficient basis for imputing the safety or reliability of one test to another within the MedMira portfolio. In addition, Klausner did not discuss the RVF technology in his deposition or in his prepared expert statement, rendering the argument not properly categorized as an expert opinion under Federal Rule of Evidence 701, 702, or 703.

    Furthermore, the Court deemed Klausner’s expert testimony, wherein he expressed an expectation that MedMira’s HIV antibody detection qualities would resemble each other more than tests from different manufacturers, as insufficient to meet the reliability prong. The Court held that it was not scientifically reliable to impute the findings from a well-funded study conducted by outstanding scientists in an excellent clinical research infrastructure, as mentioned by Klausner in his deposition, to a different HIV test merely based on an expectation of similarity.

    In line with a district Court’s gatekeeping role under Daubert, it is essential to prevent speculative and unreliable expert testimony from reaching the jury. Klausner, in this case, has provided only speculative assertions regarding the similarities between the Subject Test and Multiplo test. Consequently, the expert testimony fails to meet the reliability and helpfulness prongs under Daubert.

    As a result, Klausner was precluded from testifying that the study he conducted in Peru concerning a different type of HIV rapid test had any relevance to the reliability or sensitivity of the Subject Test.

    Held

    The Court granted the Plaintiff’s Daubert Motion to Exclude certain opinions of Defendant’s Expert, Jeffrey D. Klausner.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    In this medical negligence case, the Defendant Celebrity allegedly infected the Plaintiff Mariette Waters with HIV during a blood transfusion at the shipboard medical center. The Defendant’s medical staff administered blood from a donor with an “advanced, longstanding, chronic” HIV infection, leading to the Plaintiff’s HIV diagnosis three months later. The Defendant’s failure to detect HIV in the donor’s blood was attributed to the failure to adhere to mandatory protocols for donor screening and blood testing.

    The Court addressed Plaintiff’s efforts to exclude specific testimony from the Defendant’s HIV expert, Jeffrey Klausner. Plaintiff succeeded in precluding Klausner from testifying about regulatory approval for the HIV rapid test used in the case. The Court found insufficient basis for Klausner’s belief in approval and granted Plaintiff’s motion.

    Plaintiff also challenged Klausner’s opinions based on a study conducted in Peru, arguing that the tests in question were materially different. The Court agreed, precluding Klausner from testifying about the study’s relevance to the reliability of the HIV test used by the Defendant. The Court emphasized the lack of a scientific basis to impute findings from one test to another based solely on the expectation of similarity.

    Defendant argued that Klausner’s testimony should be admissible, emphasizing Klausner’s qualifications and asserting the similarity of the MedMira tests. The Court disagreed, finding Klausner’s opinions lacked reliability and helpfulness to the trier of fact. The Court held that Klausner’s expectation of similarity between tests, without a scientific basis, was insufficient. Consequently, Klausner was precluded from asserting the Peru study’s findings as relevant to the reliability of the Defendant’s HIV test. The Court emphasized its gatekeeping role under Daubert to ensure the exclusion of speculative and unreliable expert testimony from reaching the jury.

    Case Details

    Case Caption Waters v. Celebrity Cruises, Inc.
    Docket Number 1:22cv22913
    Court United States District Court, Florida Southern
    Citation 2024 U.S. Dist. LEXIS 15064
    Order Date January 29, 2024
  • Mechanical Engineering Expert Witness Opinions on Slipperiness of Shower Floor Admitted

    Mechanical Engineering Expert Witness Opinions on Slipperiness of Shower Floor Admitted

    The case involved the Plaintiff, Anthony Cladd who fell and suffered injuries while using a shower stall at a truck stop owned by the Defendant, TA Operating, LLC. The Plaintiff asserted that the fall and injuries were a result of the shower stall being unsafe, and claimed that the Defendant breached a duty of care owed to him. The Plaintiff pursued legal action against the Defendant, alleging premises liability.

    The Plaintiff claimed that the reason for his fall was the presence of standing water in the shower during use, stating that “The shower has a lot of standing water and was draining very slowly.” The Plaintiff alleged negligence on the part of the Defendant, asserting that they failed to maintain the shower drain, leading to a significant backup and slip hazard. Additionally, the Plaintiff accused the Defendant of failing to provide an anti-slip surface in the shower, neglecting to inspect the shower for unreasonably dangerous conditions, and not warning the Plaintiff about such conditions. The Plaintiff further claimed that the Defendant failed to correct the hazardous conditions, lacked adequate staff to inspect the shower, insufficiently trained their staff for identifying dangerous conditions, and did not adhere to its own corporate policies or have sufficient policies in place.

    On June 6, 2022, the Court issued its Case Management and Scheduling Order, which set a deadline for the Plaintiff to disclose any retained experts and their reports by February 6, 2023. However, on February 17, 2023, the Plaintiff, having failed to comply with the deadline, filed a Motion for Extension of Time to disclose their experts. Subsequently, on February 24, 2023, the Court granted the Plaintiff’s motion, extending the expert disclosure deadlines by 45 days, with the new deadline set for April 10, 2023. On the specified date, April 10, 2023, the Plaintiff disclosed two retained expert witnesses, namely David Collette and Georges El-Bahri. The Plaintiff’s expert disclosures indicated that a copy of El-Bahri’s written report was being prepared and would be provided upon receipt. However, even three months after the initially expected date for producing El-Bahri’s report, the Plaintiff had not supplied any expert report for El-Bahri. The Defendant’s counsel made efforts to obtain the report by sending correspondences to the Plaintiff’s counsel. Despite these requests, no expert report was provided and the discovery was ultimately closed.

    The Defendant filed a Daubert Motion to Preclude the testimony and opinions of Plaintiff’s Expert, David Collette, a Motion to Strike Plaintiff’s Expert Witness Georges El-Bahri as he failed to furnish an expert report within the stipulated timeframe, and a Motion for summary judgment.

    Collette admitted during deposition that he was not qualified to provide expert opinions on the coefficient of friction of the shower floor with standing water, and he did not conduct any testing under such conditions. The Defendant argued that Collette’s opinions were speculative, with questionable relevance to the trial issues. The methodology employed by Collette was deemed unscientific and unreliable, and the Defendant contended that his testimony would not assist the jury but instead lead to confusion.

    Mechanical Engineering Expert Witness

    David Collette holds a Bachelor of Science in Mechanical Engineering from the University of Manitoba, Canada and further pursued his education by earning a Masters of Business Administration from the University of Chicago. With an academic background in both engineering and business, Collette possesses over 18 years of extensive experience. Throughout his career, he has demonstrated expertise in developing, commercializing, analyzing, and troubleshooting walkway solutions, encompassing various aspects such as chemistry, tools, mats (walk-off, bath), cleaning processes, coatings, treatments, and flooring material selection. Currently serving as the President of Substratum Group, Collette leads the development of proprietary products and services aimed at supporting Walkway Management programs. His role involves providing customers with comprehensive solutions related to the selection, testing, care, and maintenance of walkways (e.g., floors, sidewalks, ramps, stairways) and bathing surfaces (e.g., tubs, showers).

    Orthopedic Surgery Expert Witness

    Dr. Georges F. El-Bahri, a Doctor of Osteopathic Medicine, earned his degree from Nova Southeastern University College of Osteopathic Medicine. He holds a Bachelor of Science in Biomedical Science from the University of South Florida. El-Bahri pursued postgraduate education and training, completing an Orthopedic Sports Medicine Fellowship at Andrews Research and Education Foundation, and an Orthopedic Surgery Residency at Largo Medical Center. His expertise extends to sports medicine injuries, particularly those of the knee and shoulder, with a focus on arthroscopic procedures, total joint replacements, and general orthopedic care. El-Bahri holds various positions, including Certified Life Care Planner at Life Care Plan MD, Extremity Surgeon at Interventional Pain Specialists, Extremity Surgeon at Spine Centers of America, Orthopedic Surgeon at Ortho One Jacksonville, and Orthopedic Specialist at Concentra-Occupational Health. He also maintains his private practice at Bahri Orthopedics and Sports Medicine Clinic.

    Discussion by the Court

    The Defendant requested the Court to exclude David Collette’s entire testimony, contending that he lacked qualification, utilized invalid methodology, and his testimony would not assist the trier of fact. The Court observed that an expert’s qualification is determined by factors such as knowledge, skill, experience, training, or education, according to Federal Rule of Evidence 702. An expert is not automatically deemed unqualified if their experience doesn’t perfectly align with the matter at hand. The qualification assessment should consider the expert’s credentials in relation to the subject matter of the proposed testimony. If an expert is minimally qualified, objections to their expertise should be treated as matters of credibility and weight, rather than admissibility.

    Collette holds a Bachelor of Science degree in Mechanical Engineering and served as a voting member on the technical committee for American National Standards Institute (ANSI)/National Floor Safety Institute(NFSI) B101.4 Test Method for Measuring the Wet Barefoot Condition of Surfaces, focusing on developing a barefoot standard for various surfaces such as bathtubs, shower enclosures, pool decks, and walkways in 2019. With over 14 years of experience in developing, launching, and auditing walkway and bathing surface safety programs. Collette does not possess a PhD in engineering. However, a preponderance of evidence indicated his qualification to testify on the coefficient of friction of the shower stall floor, its slipperiness, and relevant industry standards.

    In the case of Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011), it was established that a qualified expert utilizing reliable testing methodology has the authority to testify about the safety of a Defendant’s flooring choice, determined by the surface’s coefficient of friction. Typically, coefficient of friction evidence is presented by an expert witness who also addresses industry standards and assesses whether the surface complies with them. Furthermore, according to Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1285 (11th Cir. 2015), a delay in testing the area where an accident occurred does not undermine the reliability of coefficient testing if the site has not materially changed since the incident. The case emphasized that weaknesses in the factual basis of an expert’s opinion are subject to challenges in terms of credibility and weight through cross-examination and the presentation of contrary evidence.

    Collette conducted coefficient of friction tests using an American Slip Meter 925 tribometer and the ANSI A326.3 standard test method for measuring dynamic coefficient of friction (DCOF) of hard surface flooring materials. He asserted that the test method employed was the standard test used by manufacturers, interior designers, and architects for testing bathing surface floors. Collette performed the coefficient of friction test on the shower stall floor under somewhat different conditions than were present during the accident: it was over two years later, and there was no significant standing water present for his test. Additionally, he tested three samples of the shower stall floor instead of the entire surface. The Defendant could raise these considerations, but they pertain to the weight and credibility of the evidence, not its admissibility. Collette utilized an established methodology, the ANSI A326.3 standard test method, to assess the coefficient of friction of the surface. A preponderance of the evidence suggested that his testimony was grounded in a reliable methodology.

    In Sorrels, it was established that expert testimony concerning the coefficient of friction (COF) of a flooring surface could be beneficial to a jury in a slip and fall case. The Court emphasized that challenging such evidence should be done through vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of truth, as outlined in the Daubert case.

    Collette’s testimony closely parallels the testimony presented in Sorrels, proving beneficial to the jury in the slip and fall context. The preponderance of the evidence suggested that Collette’s testimony would aid the trier of fact by applying his expertise and remained relevant to the case. The Daubert standard was deemed satisfied for all three prongs, and as a result, Collette’s testimony was not barred.

    To establish a premises liability claim, the Plaintiff must demonstrate the elements of a negligence claim and prove that the Defendant had possession or control of the premises and notice of the hazardous condition. This includes showing: (1) the Defendant owed a duty, (2) there was a breach of that duty, (3) a causal link between the breach and the Plaintiff’s injury, (4) the Plaintiff suffered damages due to that injury, (5) the Defendant had possession or control of the premises, and (6) the Defendant had actual or constructive notice of the dangerous conditions leading to the injury.

    The Defendant argued, as a matter of law, that a wet shower stall floor is not inherently dangerous and cannot impose liability on the owner. Premises owners are typically not liable for obvious risks unless an uncommon design or construction creates a hidden danger. In such cases, where a prudent invitee would not anticipate the danger, the premises owner may be found liable, as established in Echevarria v. Lennar Homes, LLC, 306 So. 3d 327, 330 (Fla. 3d Dist. Ct. App. 2020). Additionally, a breach of industry standards serves as evidence of negligence, as outlined in Hilliard v. Speedway Superamerica LLC, 766 So. 2d 1153, 1155 (Fla. 4th Dist. Ct. App. 2000).

    Considering the evidence favorably for the non-moving party, a material fact dispute exists regarding whether the shower stall floor posed a hidden danger. Collette, the Plaintiff’s expert witness, asserted in his written report that the wet dynamic coefficient of friction for the shower stall floor fell below industry standards for public showers and floors meant to be walked upon when wet. This condition, akin to the level-changing steps in Echevarria and Hilliard, could be perceived as more slippery than reasonably expected, potentially adding a hidden danger. A jury could reasonably find that such conditions create liability for premises owners, as invitees may not anticipate these dangers.

    The Defendant argued that Collette’s opinions were irrelevant and unsupported. However, in considering the evidence favorably for the non-moving party, Collette’s report and opinions were deemed relevant as they made it more likely that the shower stall floor had hidden danger, being more slippery than reasonably expected. Consequently, the Court determined that summary judgment was not appropriate for this matter.

    According to Federal Rule of Civil Procedure 26(a)(2)(B), expert witness disclosures must be accompanied by a signed report if the expert is “retained or specially employed” for testimony. These disclosures must adhere to Court-ordered deadlines, as outlined in Federal Rule of Civil Procedure 26(a)(2)(D). Failure to make such disclosures could result in the expert being barred from presenting evidence at trial, unless the failure is deemed “substantially justified or harmless,” pursuant to Federal Rule of Civil Procedure 37(c)(1).

    In this case, the Case Management and Scheduling Order stipulated a deadline for the Plaintiff’s disclosure of expert reports as February 6, 2023 . The Defendant emphasized that the Plaintiff did not disclose a report from Georges El-Bahri by that date. The Plaintiff failed to provide good cause for the untimely disclosure and did not respond to the Defendant’s Motion to Strike. The Court decided that Defendant’s Motion to Strike may be treated as unopposed. Consequently, it was deemed appropriate to strike El-Bahri as an expert witness for the Plaintiff.

    Held

    The Court also denied the Defendant’s Daubert Motion seeking to preclude the testimony and opinions of Plaintiff’s Expert, David Collette. Furthermore, the Court granted the Defendant’s Motion to Strike Plaintiff’s Expert Witness, Georges El-Bahri. The Court also denied the Defendant’s Motion for Summary Judgment.

    The Court issued a ruling on January 08, 2024 to terminate all pending motions and administratively close the case pending further order of the Court. The parties were directed to file a joint stipulated form of final order or judgment or move the Court upon good cause to reopen the case on or before March 04, 2024.

    Key Takeaways

    The Plaintiff, who suffered injuries in a truck stop shower stall, relied on the expert opinions of David Collette to establish the hazardous conditions of the shower floor. The Defendant contested the admissibility of Collette’s testimony, asserting that he lacked qualifications and used unreliable methodology. The Court, however, found that Collette, with his engineering background and extensive experience, met the qualifications for offering expert opinions on the coefficient of friction of the shower floor. The Court emphasized that objections to an expert’s expertise should be matters of credibility and weight, rather than admissibility. Collette’s use of established testing methodology and his relevance to industry standards strengthened the admissibility of his testimony. The Court also highlighted the significance of expert testimony in premises liability cases, acknowledging its potential to assist the jury in understanding complex issues such as the slipperiness of flooring surfaces. The Plaintiff’s expert Georges El-Bahri faced challenges to the timeliness of expert disclosures because the Plaintiff failed to provide good cause for the untimely disclosure and did not respond to the Defendant’s Motion to Strike, therefore barring the expert. Here, the Court underscored the importance of adhering to procedural rules for expert witness disclosures and the potential consequences, such as being barred from presenting evidence at trial.

    Case Details

    Case Caption Cladd v. Ta Operating, LLC
    Docket Number 3:22cv517
    Court United States District Court, Florida Middle
    Citation 2023 U.S. Dist. LEXIS 233821
    Order Date December 7, 2023
  • Court rejects the testimony of the Construction Expert Witness for not conducting site examination of any kind after a slip and fall accident

    Court rejects the testimony of the Construction Expert Witness for not conducting site examination of any kind after a slip and fall accident

    Plaintiff Wilfredo Maribona filed a negligence suit against Defendant Wal-Mart Stores East, LP. Maribona summarized his claim, asserting that he slipped due to the painted stop bar in the parking lot being slippery when wet from rain. Despite no accident report being filled out, the incident was recorded by store surveillance.

    The Plaintiff enlisted Christopher Zimmerman (“Zimmerman”) as an expert witness, who asserted that the paint on the stop bar lacked sufficient slip resistance, and Wal-Mart had violated multiple building and other codes. In response, the Defendant hired Derrek-Ian Verlaan (“Verlaan”) as its rebuttal expert, contending that the stop bar was not slippery. Both parties sought to prevent the other’s expert from testifying.

    The Court addressed three motions: (1) Plaintiff’s Daubert Motion to Preclude Expert Testimony of Derrek-Ian Verlaan; (2) Defendant’s Daubert Motion and Supporting Memorandum of Law to Strike the Opinion and Testimony of Plaintiff’s Expert Christopher Zimmerman; and (3) Defendant’s Motion for Final Summary Judgment.

    Building Inspection Expert Witness

    Christopher M. Zimmerman is a Florida State Licensed Building Inspector and a Florida State Licensed Plans Examiner with over 16 years of experience examining the permitting and construction process, including construction safety practices. He has obtained his Bachelor of Science degree in Criminology from Florida State University and has further enhanced his investigation skills during an internship with Florida Department of Insurance, Fraud Division. Zimmerman is currently a partner of Zimmerman Associates of Florida, where he provides research, inspection and expert witness services to owners, the legal profession and their clients, on matters concerning construction activity, property damage and personal injury.

    Construction Expert Witness

    Derrek-Ian G. Verlaan is a Certified Safety Professional and a Senior Staff Consultant with Engineering Systems Inc. in Fort Myers, Florida, where he has been performing scientific investigation, research, and consulting for over 20 years. His consulting practice areas include construction, safety, environmental, and fire. He investigates residential and commercial property losses related to structural, fire, water damage, mold, and corrosive drywall. He has obtained his Bachelor of Science from the University of West Florida.

    Discussions by the Court

    The Plaintiff asserted that Christopher Zimmerman possessed over 16 years of experience as a Florida State Licensed Building Inspector and Plans Examiner, specializing in permitting and construction processes, including construction safety and is qualified by the Court to provide testimony in these areas.

    In an on-site inspection performed on July 7, 2021, approximately six months after the event, Zimmerman assessed the site under overcast weather conditions following rain. Without conducting destructive testing, he employed the methods typical of a building inspector, including visual inspection, tactile examination, and surface scratching. Zimmerman explained his methodology by visually examining and feeling the conditions on-site, touching the surface with his hands, and scratching it to identify any abrasive additive. He observed variations in the surface along the painted line, noting smooth areas and pitting likely caused during the spray application, as seen in photographs. Multiple pictures were taken to document various conditions in the area, including instances of cracking.

    Zimmerman expressed the opinion that the pertinent paint striping lacked an abrasive additive, failing to provide slip-resistant construction. His first opinion identified the route as a primary access and egress route, marked for pedestrians, citing relevant codes and criteria. His second opinion asserted that Wal-Mart failed to furnish a consistently slip-resistant walking surface for the Plaintiff’s use under expected conditions and use. In a written opinion dated April 27, 2023, Zimmerman stated that a natural asphalt surface usually offers good slip resistance. However, when coated with paint without proper texturing or an abrasive additive, the slip-resistant characteristics diminish. The stop bar marking, having multiple layers of paint, concealed the natural abrasive features of the asphalt. Zimmerman found no evidence of an abrasive additive during his examination, describing the surface as smooth and nonporous. Such hard, smooth surfaces without sufficient abrasive additives are recognized as posing a slip hazard, especially when wet or contaminated.

    The Defendant asserted that Derrek-Ian Verlaan, held certifications as a Certified Safety Professional and served as a Senior Staff Consultant with Engineering Systems Inc. in Fort Myers, Florida, bringing over 20 years of experience in scientific investigation, research, and consulting. Verlaan also engaged in property loss consulting related to insurance, fire investigation, and environmental consulting. Despite his extensive experience, he had not testified in Court before, and his testimony had never been disqualified. 

    When Verlaan was engaged, the pavement markings at the Wal-Mart store had already been repainted, preventing him from inspecting the accident scene. Instead, he relied on a video of the incident, still photographs taken by Zimmerman, and six months’ worth of company slip and fall information for the location. His analysis revealed that out of 336 people traversing the pavement markings, including the stop bar, the Plaintiff was the only one to slip. Verlaan examined the video for partial slips or slip recoveries among the 118 people who physically stepped on the stop bar, conducting a statistical analysis to determine their steps. This analysis was connected to published research correlating certain levels of coefficient of friction with reduced slipping risks. However, Verlaan did not conduct a slip coefficient test because the surface had changed.

    Verlaan conducted a gait analysis of the video footage, noting that the Plaintiff did a partial split while holding a shopping cart. Based on discovery materials, Verlaan opined that reflective cracks in the paint could disperse surface water on the pavement markings, reducing the potential for slips due to hydroplaning. Additionally, he found that the stop bar was not slippery, as no other slip and falls were reported or observed in the preceding six months. Verlaan concluded that the walking surface was slip-resistant, and the Plaintiff’s slip was deemed an atypical random event, supported by video analysis and estimated incident rates.

    The Court emphasized the criteria for admissible expert testimony: qualifications, reliable methodology, and helpfulness to the trier of fact. In this case, both parties contended that the opposing expert failed to meet these requirements. However, the Court determined that both Zimmerman and Verlaan were qualified based on their education, training, and experience. Arguments challenging their qualifications were dismissed.

    The Court determined that Plaintiff successfully demonstrated the reliability of Zimmerman’s methodology and the helpfulness of his testimony regarding the first opinion. Any perceived shortcomings were deemed matters that go to the weight of the testimony and the admissibility of drawn conclusions or second opinion, which could be addressed during the trial. Conversely, the Court found that Defendant failed to establish the reliability of Verlaan’s methodology or the helpfulness of his testimony. Verlaan conducted no site examination of any kind, relying instead on counting people who did not slip during an arbitrary two-hour period to draw speculative conclusions. The relevance of the numbers of individuals who didn’t slip at or near the pertinent time was acknowledged, but it was not based on his expert testimony.

    The Defendant filed a motion for summary judgement. Responses in opposition were also filed but ultimately the motion for summary judgement was denied. The Court citing, Sutton v. Wal-Mart Stores E., LP, 64 F.4th 1166, 1169 (11th Cir. 2023), held that, under Florida law, a Plaintiff must establish four elements to sustain a negligence claim: (1) the Defendant owed a ‘duty, or obligation, recognized by the law, requiring the Defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risks’; (2) the Defendant failed to conform to that duty; (3) there is ‘a reasonably close causal connection between the nonconforming conduct and the resulting injury’ to the claimant; and (4) some actual harm. The record indicated genuine disputes on material facts, and it did not support the conclusion that the Defendant was entitled to judgment as a matter of law. Consequently, the Court denied the motion for summary judgment.

    Held

    The Court ruled on three motions: 1) Plaintiff’s Daubert Motion to Preclude Expert Testimony of Derrek-Ian Verlaan was granted; 2) Defendant’s Daubert Motion and Supporting Memorandum of Law to Strike the Opinion and Testimony of Plaintiff’s Expert Christopher Zimmerman was denied; and 3) Defendant’s Motion for Final Summary Judgment was also denied.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution. 

    Key Takeaways

    In the negligence suit brought by Wilfredo Maribona against Wal-Mart, expert testimony played a crucial role in shaping the arguments of both parties. Plaintiff’s expert, Christopher Zimmerman, utilized his 16 years of experience as a Florida State Licensed Building Inspector and Plans Examiner to assert that the painted stop bar lacked sufficient slip resistance, supporting his opinions with a thorough on-site inspection and visual assessments. Zimmerman’s methodology and qualifications were deemed reliable by the Court. On the other hand, the Defendant’s rebuttal expert, Derrek-Ian Verlaan, faced challenges in establishing the reliability of his methodology, as he conducted no site examination of any kind and relied on counting people who did not slip during a specific period. The Court found Verlaan’s approach lacking and irrelevant to his expert testimony. The Court’s emphasis on qualifications, reliable methodology, and helpfulness to the trier of fact underscores the critical role of expert testimony in negligence claims. Ultimately, the Court’s decision to deny the Defendant’s motion for summary judgment highlights the importance of genuine disputes on material facts in negligence cases, emphasizing the role of expert opinions in establishing liability and potential negligence.

  • Report of Civil  Engineering Expert Witness Rejected for being based on Inadequate Data and Exterior Inspection to assist in any Meaningful Factual Analysis

    Report of Civil  Engineering Expert Witness Rejected for being based on Inadequate Data and Exterior Inspection to assist in any Meaningful Factual Analysis

    This case centered on a disagreement over property insurance coverage between Bliv, Inc., a plastics production and manufacturing company, and their insurer Charter Oak Fire Insurance Company. Specifically, Bliv filed an insurance claim due to purported damage from a wind and hail storm that occurred on or around July 9, 2021(referred to as “the Event”). During the Event, Bliv, Inc (referred to as the “Plaintiff”) held a Commercial Insurance Policy provided by The Charter Oak Fire Insurance Company (referred to as “Charter Oak”). The policy was effective from April, 2021, to February, 2022 (referred to as “the Policy”). The Policy covered a commercial building situated at 1643 Lotsie Blvd. in St. Louis County, Missouri. The roof of the Property consists of a Thermoplastic Polyolefin (TPO) membrane as the primary water-proofing layer, with fiberboard and additional supporting materials directly below it.

    Around July 21, 2021, the Plaintiff informed Charter Oak about the Event and asserted losses and damage to the property. Charter Oak initiated an investigation into the claim, enlisting a professional engineer from The Vertex Companies (referred to as “Vertex”) to inspect the property and identify the cause of the alleged loss and damage. Following three property inspections on August 31, 2021, September 21, 2021, and March 14, 2022, Charter Oak determined that the covered loss and damage to the commercial building, attributable to the Event, did not surpass the $2,500 deductible specified in the Policy. Furthermore, Charter Oak concluded that the claimed loss and damage to both the exterior and interior of the building were not a result of the Event or any other covered cause of loss.

    During the legal proceedings, the Plaintiff identified professional engineer Brian Johnson (referred to as “Johnson”), as a retained expert witness and provided his “Storm Damage Report.” The Plaintiff relied on Johnson to present expert opinions and testimony regarding the alleged causes of the reported exterior and interior damages. Notably, Johnson conducted a roof inspection of the property on May 30, 2023, almost two years after the Event. He did not inspect the interior of the building during his on-site visit, and he did not engage in conversations with the building owner or any other employee of the Plaintiff. Additionally, Johnson did not review maintenance or repair records related to the property. Importantly, he admitted an inability to state with scientific certainty the cause of the alleged damage. Consequently, the Defendant argues that Johnson’s expert report, opinions, and testimony should be excluded because they lack a sufficient factual basis, he did not consistently apply accepted methodologies, and his opinions are characterized as mere speculation and conjecture.

    Civil  Engineering Expert Witness

    Brian Craig Johnson holds a Bachelor of Science in Civil Engineering and a Master of Science in Civil Engineering, both from the University of Minnesota. Since becoming a registered Professional Engineer in Civil Engineering in Minnesota in 2004, he has leveraged his background across a range of project engineering and consulting positions. His areas of specialty encompass steel, precast, masonry, and wood construction applications. He gained this well-rounded expertise through roles as a Senior Construction Engineer for Lockheed Martin, as a government contractor. He is currently the Project Director of SRF Consulting Group.

    Discussions by the Court

    Federal Rule of Evidence 702 governs the admissibility of expert testimony, requiring the expert to be qualified and the testimony to aid the trier of fact. The proponent must prove its admissibility, and the Court, in its discretion, ensures the testimony is both relevant and reliable. Daubert factors, including testing, error rate, and general acceptance, guide the determination of reliability. The Court serves as a gatekeeper, separating reliable expert opinions from speculation. Disputes about an expert’s factual basis usually pertain to credibility rather than admissibility. Liberalized standards favor the admission of expert testimony, allowing scrutiny through the adversarial process. Exclusion is warranted only if the testimony is fundamentally unsupported and provides no assistance to the jury.

    Johnson’s Storm Damage Report was deemed unreliable as it relied on insufficient data, leading to speculative conclusions. His delayed inspection, conducted almost two years post the Event, lacked an assessment of interior damage and interviews with the owner of the business or any of its employees. Additionally, he failed to review maintenance records or ascertain the property’s condition before, during, or shortly after the Event. This undermined the credibility of his opinions, as he couldn’t reasonably relate his findings to the property’s state during the Event, which made his report inadmissible under Rule 702 and Daubert standards.

    Therefore, Johnson’s opinions regarding the interior of the property lacked any factual basis, let alone sufficient facts or data. His assertions about the cause of the alleged interior damage did not necessitate scientific, technical, or specialized training. The Defendant argued that Johnson’s opinion was mere speculation and conjecture, as he seemingly inferred interior damages solely from reading the Access Restoration Services (“ARS”)estimate and assuming the inclusion of “interior components” indicated Event-related damage. Furthermore, Johnson’s report and opinions, as per his own admission, were not grounded in reliable facts or data, particularly lacking personal observations and supporting evidence for the claimed damage being a result of the Event. Consequently, the Defendant contended that Johnson’s opinions failed to meet Rule 702’s requirement of “sufficient facts or data” and should be excluded from consideration.

    Johnson’s exploration of potential explanations for the claimed damage is criticized for residing in the realm of speculation and conjecture. The lack of personal observations, evidence, or supporting data renders his theories unsupported. Citing Knepfle v. J-Tech Corp., 48 F.4th 1282, 1296 (11th Cir. 2022), the Court emphasized that his purported possibilities or theories lack any iota of support from personal observations, evidence, facts, or data.

    Johnson’s factual conclusions about the alleged damage were heavily reliant on his status as an expert, his examination of photographs from ARS and Vertex, and his claim of deducing the events. Contrary to his belief, the facts and data gathered by ARS, Vertex, and Charter Oak starkly show the inaccuracy of Johnson’s assertion that there were no failed seams or flashings.

    The assertion is made that Johnson’s testimony and Storm Damage Report would not be beneficial to a jury. Citing the standard set in Cole v. Homier Distrib. Co., 599 F.3d 856, 865 (8th Cir. 2010), an expert’s opinion should be excluded if it is fundamentally unsupported and unable to offer assistance to the jury. It is emphasized that an expert must substantiate their opinion, as presenting only an ultimate conclusion without analysis is deemed meaningless.

    Johnson’s report is titled “Storm Damage Report,” implying a predetermined assumption that the building damage resulted from a storm, the very issue under consideration. Moreover, there is a lack of substantive evidence supporting his opinion that the damage was caused by the specific event. Johnson failed to identify any storm-created openings through personal observation, photographs, tests, or observations by any party who personally inspected the building.

    Due to his minimal independent analysis and investigation, Johnson’s ultimate conclusion that the damage was caused by the Event is deemed meaningless and unhelpful to the trier of fact. The opinion lacks fundamental support, rendering it insufficient to provide any assistance to the jury. 

    The Plaintiff contends that weather data suggesting the possible presence of hail on the storm date supports Johnson’s approach in ruling out the possibility of damage from a previous or subsequent storm. However, it is highlighted that Johnson, despite acknowledging the absence of hail punctures or fractures on the roof and finding no evidence of anvil strikes, did not definitively observe such damage. The argument asserts that while Johnson systematically eliminated other potential causes for the damage, his conclusion attributing the damage to the storm remains speculative. This speculation arises from his failure to determine if any damage occurred before or after the storm, prior to his inspection. The Plaintiff argues that Johnson’s opinion regarding hail damage to the roof membrane does not lack a sufficient basis in facts and data to aid the finder of fact. The Plaintiff also contends that the complaints go to the weight of the evidence, not its admissibility.

    Although the Plaintiff is correct in asserting that an expert can rely on information collected by others, the Court aligns with the Defendant’s perspective that total reliance is inadequate to demonstrate Johnson’s opinion would assist the jury in its fact-finding responsibilities. This agreement is reached, considering that Johnson’s report includes only a single photograph. Johnson did not conduct independent testing to support his opinion that the absence of physical damage to the roof membrane does not rule out hail damage. Instead, he based this conclusion on roofing literature, specifically marketing materials from a membrane manufacturer, asserting that fiberboard is more prone to hail impact damage. This reliance on unverified marketing literature is identified as a methodological failure in reaching his conclusions.

    Similarly, Johnson conducted no independent testing regarding the interior of the building. The absence of concrete reasons for Johnson’s conclusion that there must have been interior damage from the storm, solely because it was included in the estimate, is highlighted. Despite Johnson’s high qualifications, the opinion fails to meet the requirements of Daubert and Rule 702. The deficiency in sufficient facts, data, and methodology is emphasized, and it is noted that even vigorous cross-examination regarding Johnson’s credibility cannot overcome these shortcomings. The report, based on an exterior inspection, photographs taken by others, and data deemed too remote in time or substance, is deemed insufficient for meaningful factual analysis.

    Held

    The Court reaches the conclusion that Johnson’s opinion fails to assist the trier of fact in understanding the evidence or determining a relevant fact. The opinion lacks a foundation in sufficient facts or data and does not adhere to the necessary reliable principles and methods mandated by Rule 702. Consequently, the Court grants the Defendant’s Daubert Motion to Exclude Expert Reports, Testimony, and Opinions of Brian Johnson. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution. 

    Key Takeaways

    This case demonstrates the vital gatekeeping function Courts must serve under Daubert to scrutinize the reliability of expert witness testimony. The Court excluded Plaintiff Bliv’s expert, Brian Johnson, because his causation opinion lacked sufficient factual support and objective methodology. Most critically, Johnson grounded his conclusion that a hailstorm caused roof and interior damage almost entirely on third-party photographs, estimates, and marketing materials rather than his own inspection and testing. While qualified experts may reference outside sources, Johnson crossed the line into unreliable speculation by basing his view solely on external findings without verification. Moreover, the Court found his failure to review maintenance records or examine the building’s interior especially problematic given his admission that he observed no exterior hail damage. This inability to rule out alternative explanations undermined the reliability of his testimony under Daubert. Finally, Johnson’s reliance on interior damage estimates was misplaced since he never actually inspected inside the premises. By opining on evidence contradicted by his own limited investigation, his methodology proved unsound. Moving forward, this case demonstrates that expert opinions require thorough factual support and objective testing to clear Daubert’s reliability test. Subjective assumptions or theories fail to assist the trier of fact. Attorneys hoping to leverage expert testimony must ensure opinions rest on demonstrable “good grounds” before trial or risk exclusion.

  • Court admits the testimony of Industrial Hygiene & Mold Expert Witness with regard to source of water intrusions that caused the mold growth

    Court admits the testimony of Industrial Hygiene & Mold Expert Witness with regard to source of water intrusions that caused the mold growth

    Zahid Hotel Group, LLC, the owner of a LaQuinta Inn insured by AmGUARD Insurance Company, claimed extensive damage to the property following Hurricane Ida in August 2021. Although AmGUARD disbursed $1,032,617.92 for building repairs and mitigation, Zahid contended that the sum fell short of covering repair expenses and failed to compensate for business personal property and income loss as outlined in the policy.

    Zahid initiated legal action against AmGUARD, alleging breach of contract, failure to adhere to statutory payment deadlines, and breach of the duty of good faith and fair dealing. The sought-after damages included diminution in property value, actual repair costs, reimbursement for personal property repairs, loss of business income, consequential damages, attorney’s fees, and statutory penalties.

    In response, AmGUARD launched a counterclaim against Zahid, asserting breach of contract, bad faith breach of contract, and a declaration of no coverage for misrepresentation. AmGUARD accused Zahid of overstating damages, attributing pre-existing damages to Hurricane Ida despite knowledge of their non-Ida origins, and failing to mitigate the damages caused by the hurricane.

    Zahid filed a Daubert motion to exclude the testimony of AmGUARD’s mold expert, Dr. Coreen A. Robbins (“Robbins”), a Certified Industrial Hygienist, about severe mold growth and questions about the source of the water intrusions that caused the mold growth on the basis that her testimony will not assist the trier of fact, is not based on sufficient facts or data, and is not the product of reliably applied principles and methods. 

    Industrial Hygiene & Mold Expert Witness

     Dr. Coreen A. Robbins MHS, Ph.D, CIH is a Senior Vice President and Principal Industrial Hygienist at J.S. Held, LLC. She holds a Bachelor of Science (BS) in Zoology from Michigan State University, a Master of Health Science (MHS) in Industrial Hygiene and Safety Sciences, and a Ph.D. from Johns Hopkins University. She has been a Certified Industrial Hygienist (CIH) since 1992. Robbins has worked as an industrial hygienist since 1986 and has served as a consultant and expert in investigations throughout the U.S. Her activities include exposure assessment in residential, commercial, and occupational environments and contexts (consumer, industrial products) and time frames (recent or current exposure, historical). Across these environments, contexts and time frames, she has experience and expertise with a wide variety of agents including animal and dust mite antigens, asbestos, benzene, carbon monoxide (CO), diacetyl, formaldehyde, fiberglass and other mineral fibers, glutaraldehyde, mold and bacteria, odors, and smoke residue/soot/ash. She has provided technical and expert consulting services and expert testimony in these and other areas in relation to exposure science and industrial hygiene. 

    Discussion by the Court

    Zahid contested the necessity of Robbins’ testimony on surface mold growth, asserting that Louisiana jurors possess adequate familiarity with mold growth patterns. They labeled Robbins’ deduction regarding the water intrusion source as an “educated guess,” lacking scientific foundation, particularly due to her purported failure to review historical hotel data. Zahid pointed out discrepancies between Robbins’ analysis of top-down water intrusion and pre-existing inspectors’ observations, challenging the coherence of her methodology.

    Contrarily, AmGUARD defended Robbins’ expertise, emphasizing her qualifications as unquestionable despite differing conclusions from other experts. They highlighted her ability to differentiate between bulk event mold growth and condensation mold growth, enabling her to elucidate the varying mold appearances in different rooms and deduce the infiltration path of water into the building. AmGUARD addressed Zahid’s focus on grievances involving individuals not relevant to the Daubert motion, such as claims adjuster Michael Barrett and engineer, Kurt Mulder.

    The Court determined that Robbins’ testimony was deemed beneficial to the fact-finding process, offering expertise beyond the common knowledge of a Louisiana juror regarding mold growth. Given the severity of mold issues and the inquiries into water intrusion sources, Robbins’ testimony provided scientific context, enhancing the parties’ arguments and findings about mold growth under various conditions. The fact that Robbins’ conclusions differed from other experts didn’t render her testimony as mere assertions (ipse dixit), as she applied scientific methodologies and conducted on-site inspections to substantiate her opinions.

    Zahid’s challenge regarding Robbins’ methodology largely revolved around her perceived oversight of contradictory evidence, like Mulder’s photographs, a matter deemed appropriate for jury consideration rather than exclusion of testimony.

    Held

    Consequently, the Court denied Zahid Hotel Group, LLC’s motion to exclude Corren Robbins’ testimony based on the aforementioned reasons. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    In the legal dispute between Zahid Hotel Group and AmGUARD Insurance Company concerning property damage post-Hurricane Ida, Zahid sought to exclude the testimony of AmGUARD’s mold expert, Coreen Robbins, via a Daubert motion. Zahid argued that Robbins’ testimony lacked merit, citing her deductions as lacking scientific foundation due to alleged oversight of historical hotel data and discrepancies in her analysis. Conversely, AmGUARD defended Robbins’ expertise, highlighting her ability to differentiate mold growth types and provide crucial scientific context regarding severe mold issues post-hurricane. The Court deemed Robbins’ testimony valuable, extending beyond common knowledge and aiding in understanding intricate mold growth patterns. Despite differing conclusions from other experts, the Court found her methodologies sound, denying Zahid’s motion to exclude Robbins’ testimony from the case.

  • Expert testimony regarding marketing practices of electronic cigarette and vape products passes the Daubert test

    Expert testimony regarding marketing practices of electronic cigarette and vape products passes the Daubert test

    This case involved the City of Chicago bringing an enforcement action against two Minnesota corporations, Equte LLC and Juishy LLC, as well as Jeffrey Evenmo. The City alleged that the Defendants violated several sections of the Municipal Code of Chicago related to the sale of tobacco and electronic cigarette products.  

    The City conducted an investigation which revealed that the corporate Defendants made 600 sales of electronic cigarette products and 100 sales of flavored liquid nicotine products to minors under the age of 21 in Chicago, in violation of city ordinances. The City then referred the case to the Corporation Counsel, which filed the enforcement action.  This enforcement action consisted of motions for partial summary judgment filed by both the City and the Defendant as well as the Defendants’ motion to exclude the testimony of City’s expert Sherry Emery about unfair marketing practices the Defendants engaged in by marketing tobacco products and accessories to minors in Chicago.

    Equte and Juishy were both Minnesota corporations with their principal places of business in Minnesota. Equte, which Evenmo created between 2013 and 2014, sold e-cigarettes, vaping products, and other nicotine products on a website with the domain name vapes.com. Equte had its own bank accounts, filed corporate tax returns between 2016 and 2018, and issued profit and loss statements between 2017 and 2019. Evenmo could not recall when he founded Juishy, which marketed and sold flavored liquid nicotine products on vapes.com and Juishy.com. Although Juishy also operated social media pages, it did not generate as many sales as Equte. Juishy never had its own bank account, owned any domain names, or employed anyone. Although Evenmo was the final decisionmaker for the Corporate Defendants, he did not oversee day-to-day operations at their warehouse. On February 17, 2021, before the City served Defendants with process, Evenmo, the Corporate Defendants’ sole owner and CEO, administratively terminated Juishy. Then on May 11, 2021, also before the City served Defendants, Equte sold its domain page vapes.com to an unrelated party.

    Public Health Expert Witness 

    Sherry L. Emery serves as a Senior Fellow in the Public Health Group and Director of the Health Media Collaboratory at NORC at the University of Chicago. She obtained her undergraduate degree in Political Economy from John Hopkins University. Dr. Emery went on to earn an MBA with a concentration in Business Economics from Columbia University. She later completed her PhD in City and Regional Planning at the University of North Carolina at Chapel Hill. With well over 100 articles published in peer-reviewed journals, Dr. Emery has established herself as a nationally recognized expert in tobacco control, media, and public health policy research.

    Discussions by the Court 

    The Defendants moved to dismiss the case, arguing the Court lacked jurisdiction and that the claims were barred by the statute of limitations. The Court denied the motion, finding jurisdiction was proper based on diversity of citizenship and the amount in controversy, and that the statute of limitations did not apply due to the City’s immunity when asserting public rights. 

    After the parties completed fact discovery, both sides moved for partial summary judgment. The Defendants argued the Court should reconsider its rulings on jurisdiction with the benefit of a full factual record. The Court declined to reexamine its initial decisions. Defendants also raised a challenge related to the statute of limitations, claiming that the City’s allegations were time-barred. The Court determined that though the Municipal Code of Chicago allowed for the imposition of a fine, the City’s claims were not time barred. The Court also agreed that though Evenmo was properly subject to its jurisdiction, he could not be held personally liable for any fines assessed against the Corporate Defendants under the theory that he was their alter ego or the Corporate Defendant’s violations of the Municipal Code of Chicago. 

    The City conceded, and the Court agreed, that the undisputed facts showed the Corporate Defendants violated the ordinances prohibiting sales of tobacco and flavored nicotine products to minors. Thus, the Court entered judgment for the City on those claims. The City also moved for summary judgment on its unfair business practices claim, arguing the corporate Defendants’ use of automatic age verification systems allowing sales to under 21 year olds violated the ordinance. The Court, however, found that the Corporate Defendants’ use of automatic age-verification systems cannot constitute an unfair business practice under the Illinois Consumer Fraud and Deceptive Business Practices Act and denied the City’s motion on that theory. 

    The Defendants filed a motion to exclude the testimony of Sherry Emery, an expert retained by the City to opine on the Corporate Defendants’ marketing of electronic cigarettes and vaping products to youth online and on social media. The Defendants argued that Emery’s report and testimony were irrelevant to any material issue in the case.  

    The Court explained that under the Federal Rules of Evidence and Daubert, an expert’s testimony is admissible if the expert is qualified, the methodology is reliable, and the testimony is relevant in that it will help the trier of fact understand the evidence or determine a fact at issue. The party seeking to admit the testimony must show it meets these requirements by a preponderance of the evidence. The Court noted that Daubert‘s specific factors for assessing reliability do not necessarily apply in every case, and that courts have wide latitude in performing the gatekeeping function for expert testimony. 

    The Defendants claimed Emery’s opinions were irrelevant because the City’s unfair business practices claim under the ordinance was limited to the code violations and failure to implement adequate age verification. The Court found this “misread” the City’s claims, as the City never acknowledged such a limitation and explicitly reserved the issue of whether the marketing violated the Municipal Code of Chicago for trial. 

    The Court explained that Emery’s report and opinions would help the jury determine whether the Corporate Defendants improperly marketed their products to minors under 21. The report extensively discussed the history of e-cigarette use, how companies leveraged social media to promote their products to youth, the use of flavors and themes that appeal to adolescents, and provided opinions that the Defendants’ social media marketing was potent with a youth audience. This would assist the jury in determining if the marketing efforts constituted an unfair business practice.  

    The Defendants pointed to Emery’s admission that she did not review sales or age data. The Court found she did not need such data to opine on the nature of the advertisements and social media marketing. The Defendants could challenge the conclusions on cross-examination, which is the appropriate means to attack admissible but shaky evidence. 

    Held 

    In conclusion, because Emery’s report and testimony were relevant assess whether or not Defendants engaged in unfair marketing practices by marketing tobacco products and accessories to minors in Chicago, the Court denied the motion to exclude her as an expert witness under Daubert and the Federal Rules of Evidence 702. The Court declined to reexamine its initial decisions but held that that Evenmo cannot be held personally liable for any fines assessed against the Corporate Defendants. The Court granted in part and denied in part the City’s motion for summary judgment stating that Corporate Defendants’ use of automatic age-verification systems did not violate the City’s ordinances.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    The Court applied the Federal Rules of Evidence 702 and Daubert standard to determine the admissibility of Emery’s expert testimony. Under this standard, the proponent of the expert evidence must show the expert is qualified, the methodology is reliable, and the testimony is relevant to issues in the case. 

    • Emery’s testimony was deemed relevant because her opinions on the Defendants’ social media marketing efforts which targeted the youth would help the jury evaluate whether the marketing practices in question constituted an unfair business practice that violated the city ordinance. 
    • The Defendants argued Emery’s opinions were irrelevant because of perceived limitations on the claim for violations of Municipal Code of Chicago. But the Court found the City did not actually place such limitations on the claim. 
    • The fact that Emery did not review sales or age data did not render her opinions irrelevant, as she opined on different issues regarding the nature of the marketing. Any limitations could be addressed on cross-examination. 

    Because relevance was established, the Court denied the motion to exclude Emery as an expert witness. Her opinions were found admissible under the Rules of Evidence and Daubert standards. 

  • Court confirms the admissibility of the testimony of occupational medicine expert in employment discrimination case  

    Court confirms the admissibility of the testimony of occupational medicine expert in employment discrimination case  

    This case involved a lawsuit filed by David Meza against his former employer, Union Pacific Railroad Co., alleging discrimination in violation of the Americans with Disabilities Act (ADA). Meza worked as a carman for Union Pacific until his employment was suspended after a fitness-for-duty exam.  

    Meza retained Kevin Trangle as an expert witness to support his ADA discrimination claim. Trangle intended to testify that the Federal Motor Carrier Safety Administration (FMCSA) Medical Examiner Handbook relied on by Union Pacific in evaluating Meza’s fitness for duty contained outdated medical information and was removed from the FMCSA website for that reason.  

    Union Pacific filed a Daubert motion to exclude parts of the occupational medicine expert witness’ proposed expert testimony. Specifically, Union Pacific argued Trangle should not be permitted to: 

    • Craft a factual narrative about the FMCSA’s decision to remove the 2014 Medical Examiner Handbook from its website. 
    • Opine or infer why the FMCSA removed the Handbook, including claiming its removal signaled the guidelines were outdated or unreliable.  

    Union Pacific insisted on the scientific validity of the Handbook and contended that Trangle’s testimony to the contrary was unsupported and inadmissible. Union Pacific asserted that testimony from its own experts Brian Morris, M.D., J.D., M.B.A., M.P.H. and Joel T. Cotton established the reliability of the Handbook. 

    Occupational Medicine Expert Witness 

    Dr. Kevin Trangle has over 40 years of experience as a board-certified physician in internal medicine, occupational medicine, and preventive medicine. He obtained his medical degree from the University of Minnesota Medical School in 1978 and also holds an MBA in healthcare management from Case Western Reserve University. He has served as a medical director for numerous corporations and organizations. His experience encompasses all aspects of occupational medicine including diagnosis and treatment of work-related injuries, disability evaluations, return to work assessments, corporate wellness programs, and substance abuse programs. Trangle has provided expert consultation services for attorneys, government agencies, and insurers. He has given dozens of presentations to professional organizations on occupational health topics and has published extensively in medical journals. Trangle has particular expertise regarding workplace chemical exposures, having worked extensively with the chemical industry and conducted research on industrial solvents and chemical sensitivity issues. He has also managed corporate drug testing and substance abuse programs. In summary, Trangle has comprehensive credentials and experience at the highest level in occupational and environmental medicine. 

    Discussions by the Court 

    The Court began by explaining that the admissibility of expert testimony in federal court is governed by Federal Rule of Evidence 702. Under this rule, expert opinion testimony is admissible if the expert’s knowledge will help the jury understand the evidence, the testimony is based on sufficient facts, it is the product of reliable methods, and the methods were reliably applied to the case facts. The Court acts as a gatekeeper, ensuring only relevant and reliable scientific evidence is admitted. However, the Court must not invade the role of the jury in weighing evidence and resolving credibility issues. Rule 702 favors admissibility, and expert testimony should only be excluded if it is so unsupported it cannot assist the factfinder.   

    Union Pacific sought to bar occupational medicine expert witness Trangle from opining that the Handbook was unreliable and was removed from the FMCSA website for containing outdated information. Union Pacific argued Trangle had no basis to testify the information was outdated and his opinions were unsupported. It asserted testimony from its own experts establishes the Handbook remains current and reliable. 

    Meza responded that the 2014 Handbook’s current validity was relevant evidence, Trangle was qualified to opine on the medical science being outdated, and his opinion was reliable. Meza pointed to indications the Handbook was no longer in use and was removed for containing obsolete information. Meza contended competing expert views on the Handbook should be resolved through advocacy and jury findings rather than exclusion. 

    In support of their argument, Meza cited two key pieces of evidence. Firstly, they pointed to a watermark prominently displayed on the front of the Handbook, which unequivocally stated that it was “No longer in use.” This watermark served as a clear indicator that the handbook had been rendered obsolete and was no longer considered a reliable or current source of information.

    Secondly, Meza referenced a notice of proposed regulatory guidance published in the Federal Register. This notice provided crucial context by explaining that the Federal Motor Carrier Safety Administration (FMCSA) withdrew the Handbook in 2015. The reason behind this withdrawal, as stated in the notice, was that certain information contained within the handbook had become outdated or was overly prescriptive in nature.

    The Court found Trangle’s opinions on Union Pacific’s reliance on the Handbook were not so unsupported as to be completely unhelpful to the jury. While not indisputable, his testimony could assist the jury to some degree and should be tested by the adversary process rather than excluded outright.  

    The Court stated Union Pacific’s proposed exclusions were too restrictive. Trangle should be able to explain why he believes Union Pacific should not have relied on the Handbook, even if Union Pacific disagrees. His opinions were not speculative or unsupported enough to be inadmissible. Union Pacific was permitted to challenge Trangle through its own experts and cross-examination rather than exclusion. 

    Union Pacific argued the FMCSA never found the Handbook guidelines unreliable. But the Court found Trangle should be able to tell the jury why he believes Union Pacific should not have relied on the Handbook. The Court preferred to let the adversary process test Trangle’s opinion rather than the Court excluding it upfront.  

    The Court explained it was not proper for the Court to weigh competing expert opinions or determine their correctness. Issues with Trangle’s testimony were better addressed by the adversary process with competing expert testimony and cross-examination. Where an expert opinion had sufficient grounds to assist the jury, it should be tested by competing evidence rather than be excluded outright. 

    Held  

    The Court denied Union Pacific’s motion to limit Trangle’s testimony about the Handbook being outdated and unreliable. The Court ruled that he could generally opine that the Handbook was outdated and unreliable, though more specific objections may be raised at trial. The validity of the Handbook would be resolved through competing expert views rather than the Court prohibiting testimony at the outset. The adversarial process is the appropriate means of attacking shaky but admissible evidence.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways  

    This case demonstrates several important principles regarding expert witness testimony.

    • The Court emphasized its role as a gatekeeper in evaluating reliability under Daubert, but cautioned against invading the province of the jury to weigh competing expert opinions.
    • The standard for admissibility is fairly low – expert testimony should be admitted unless it is so unsupported it cannot help the factfinder at all.
    • Doubts about usefulness should be resolved in favor of admission rather than exclusion. Fourth, weaknesses in expert opinions are better addressed through cross-examination and contrary evidence rather than outright exclusion.
    • Disagreements between experts on key facts illustrate the need to let the adversarial process test competing views.
    • The Court should not determine which expert is correct on disputed factual issues.
    • While specific objections may arise, experts should generally be permitted to offer opinions within their expertise that have potential to assist the jury. 
  • Court limits fire and battery expert testimony in fatal laptop battery explosion case

    Court limits fire and battery expert testimony in fatal laptop battery explosion case

    This case arose from a December 31, 2015 fire at an apartment complex in Everett, Washington that caused significant damage. The fire originated in the bedroom of Mark Davis, who died in the fire. At the time, Davis had an HP laptop in his room that contained a lithium-ion battery. Philadelphia Indemnity Insurance Company (Plaintiff), the insurer of the apartment complex, filed a subrogation lawsuit against HP (Defendant), alleging the fire was caused by an internal failure of the laptop battery pack. Plaintiff asserted claims of negligence and strict product liability under Washington law.

    Plaintiff retained two expert witnesses who opined that the fire was caused by the laptop battery having an internal short circuit, which then ignited surrounding combustible materials. Defendant filed motions to exclude the testimony of both experts under Daubert, as well as a motion for summary judgment.

    Fire Origin And Cause Determination Expert Witness

    Michael D. Eskra has over 30 years of experience in the energy, power source, and battery industries. He is the owner of Eskra Technical Products, Inc., which provides consulting services related to batteries and power systems. Eskra has worked extensively with various battery chemistries including lithium-ion, lithium polymer, nickel metal hydride, and lead acid batteries. He has been involved in battery technology development, manufacturing, testing, and failure analysis. Eskra previously held senior executive and technical management roles at companies such as Electro Energy, Inc., Johnson Controls, and General Motors. He has managed large government and commercial battery technology contracts and research programs. Eskra has over 300 published papers and articles and 5 U.S. patents related to batteries and materials. He obtained his undergraduate degree in Chemical Process Engineering. Eskra has received certification as a Fire and Explosion Investigator, Fire Instructor, Vehicle Fire Investigator, and Project Management Professional. He is a member of professional organizations including the Society of Automotive Engineers, the National Association of Fire Investigators, and the International Association of Arson Investigators.

    Ken Rice is a Senior Fire Investigator at Jensen Hughes retained by Plaintiff to investigate the December 31 fire and determine its cause.

    Discussion by the Court

    Defendant Hewlett-Packard filed two motions to exclude expert testimony under Daubert along with a motion for summary judgment in this case. The first motion sought to exclude certain opinions of Plaintiff’s expert Michael D. Eskra.

    Eskra’s testimony was divided into three main categories: (1) general background explanations of how lithium-ion batteries function; (2) his analysis of physical evidence from the actual fire scene; and (3) testing he conducted on exemplar laptop batteries. The Court found categories (1) and (2) to be sufficiently reliable and denied Defendant’s motion as to testimony in those areas. For example, Eskra could testify generally that lithium-ion batteries can experience thermal runaway events under certain conditions that can lead to fires. He could also testify about his analysis of CT scans taken of the recovered battery cells from the scene and his conclusion that one cell appeared to have an internal short circuit.

    However, the Court granted Defendant’s motion to exclude all of Eskra’s testimony in the third category related to his exemplar testing. Eskra had tested batteries from a different manufacturer than those in the HP laptop at issue. The Court held that this failure to test batteries matching the actual products rendered his methodology and any defect identified at the conclusions drawn from the testing unreliable. The Court explained that in a manufacturing defect case, the exemplar product used for testing must be sufficiently similar to the actual product. Otherwise, the testing cannot produce relevant evidence regarding the specific product at issue. Here, testing a different manufacturer’s batteries could not reliably indicate whether the HP laptop battery had a particular defect.

    The second motion sought to exclude certain opinions of Plaintiff’s fire investigation expert Ken Rice. Rice applied National Fire Protection Association’s Guide for Fire and Explosion Investigations (“NFPA 921”) methodology in examining the fire scene evidence and determining the fire originated on the bed and was caused by the laptop. Defendant argued Rice deviated from NFPA 921 guidelines in multiple ways, rendering his testimony unreliable.

    The Court granted Defendant’s motion only as to Rice’s opinion that an internal failure of the laptop battery specifically caused the fire. The Court found Rice was unqualified to conclusively opine on the intricate workings of lithium-ion batteries and draw conclusions such as the fire being caused by an internal failure of the Laptop’s battery pack. However, the Court otherwise denied Defendant’s motion. It held Rice reliably followed NFPA 921 in reaching his conclusions about the fire’s area of origin and the laptop being a potential cause and alluded to the Defendant’s failure to to show that Mr. Rice’s methodology was so flawed as to be unreliable. Even where Rice may have emphasized some evidence over other conflicting evidence, the Court held this went to the weight and credibility of Rice’s conclusions rather than their admissibility.

    In summary, Defendant prevailed only in part on its Daubert motions. Eskra’s opinions based on testing of exemplar batteries from another manufacturer were excluded, as was Rice’s independent conclusion about the specific mechanism of battery failure. But both experts were still permitted to testify as to matters within their expertise, including the origin of the fire on the bed and the laptop being a potential fire cause based on scene evidence. The Court found that while imperfect, the experts’ methodologies on these core points were sufficiently reliable under Daubert standards to pass the threshold for admissibility.

    On summary judgment, the Court dismissed Plaintiff’s negligence claim after Plaintiff conceded that Washington law did not permit a claim for negligence in a product liability action. But it otherwise denied summary judgment. The Court held that despite deficiencies in Plaintiff’s expert opinions, enough evidence remained through Rice’s testimony to allow a reasonable jury to find the fire was indeed caused by the laptop.

    Held

    The Court has granted in part and denied in part the Daubert Motion filed regarding the testimony of Michael D. Eskra. Similarly, the Court admitted Ken Rice’s testimony in part. Additionally, the Summary Judgment Motion filed by the Defendant has also been granted in part and denied in part by the Court. Importantly, as a result of these rulings, the Court has chosen to dismiss the Plaintiff’s negligence claim from the case. This means that the Plaintiff’s allegation related to negligence will not proceed further in this legal matter. Since the remaining issues are yet to be resolved, this case still awaits an outcome.

    Key Takeaways:

    • The case also shows that experts must employ reliable testing methodology tied to the actual products at issue. Eskra’s testing of exemplar batteries from another manufacturer bore no relevance to whether the HP battery had a defect. His opinions based on that flawed testing were excluded.
    • Additionally, the Court emphasized that minor deviations from recommended investigative guidelines like NFPA 921 relate to weight rather than admissibility. The expert still must reliably apply the overall investigative methodology. Disputes over the interpretation of evidence are left to the jury.

    In sum, this case reinforces that experts must stay within their qualifications, tie their analysis directly to the items involved in the incident, and demonstrate reliable methodology overall. While some opinions may be excluded, experts can still testify to relevant matters within their expertise if they demonstrate methodological reliability. Robust cross-examination remains the primary tool for attacking shaky but admissible expert testimony.

  • Nebraska Court excludes Employment Law Expert’s testimony in Employment Discrimination suit 

    Nebraska Court excludes Employment Law Expert’s testimony in Employment Discrimination suit 

    Employment Law expert's testimony excluded

    Plaintiff Amanda Benson, a female firefighter/EMT, has initiated legal proceedings alleging violations of her civil rights against multiple defendants, including the City of Lincoln, Nebraska, various city officials, and personnel from Lincoln Fire and Rescue (LFR). Benson was hired by LFR as a Firefighter/EMT on July 1, 2013, and was permanently assigned to Station 8 and the Engine 8 crew for C shift on October 15, 2014. Subsequently, she became Acting Captain on Engine 1 at Station 1 and later Acting Captain of Truck 1 at the same station. 

    Benson contends that she experienced sexual discrimination, harassment, and retaliation throughout her tenure with LFR. The alleged mistreatment were largely linked to conduct attributed to Captain Shawn Mahler, who was the leader of the Truck crew at Station 8. She formally lodged complaints with the Nebraska Equal Opportunity Commission (NEOC) on August 15, 2016, and with the federal Equal Employment Opportunity Commission (EEOC) on October 14, 2020. Notably, many of Benson’s claims regarding discrimination, harassment, and retaliation are tied to Captain Mahler’s actions. 

    A significant incident occurred on April 26, 2021, during which LFR responded to a warehouse fire involving both Benson’s crew in Truck 1 and Mahler’s crew in Truck 8. Benson asserts that Mahler abandoned her during this event, posing a potential threat to her and her crew’s safety. On May 5, 2021, Benson reported the incident and lodged a formal complaint with her superiors at LFR, contending that Mahler’s actions during the warehouse fire could have potentially killed or seriously injured her and her team. 

    Following an internal investigation, Fire Chief David Engler, who is not a party to this litigation, concluded that Benson’s allegations against Mahler were false and that her behavior amounted to obstructing LFR’s operations and casting discredit on the department. Consequently, Engler found “good cause” for her dismissal. 

    Benson disputed the findings of the internal investigation and commenced legal action by filing her original Complaint in Lancaster County, Nebraska’s District Court on July 6, 2018. The defendants opted to remove the case to federal court. However, her Fourth Amended Complaint, submitted on November 11, 2021, stands as her current operative pleading. 

    In her Fourth Amended Complaint, Benson asserts eight distinct causes of action. Her primary claims include allegations of a sexually hostile work environment, retaliatory harassment, sexual discrimination, and retaliation, with some claims brought under the Nebraska Fair Employment Practice Act (NFEPA) and others under Title VII of the Federal Civil Rights Act. Furthermore, she alleges violations of the Equal Protection Clause of the United States Constitution against both the City of Lincoln and individual defendants. 

    The Defendants countered by jointly filing an Answer on December 6, 2021, wherein they denied Benson’s claims and put forth various affirmative defenses. A subsequent court ruling addressed a Motion for Partial Summary Judgment by Benson and a Motion for Summary Judgment by the defendants. The court denied Benson’s motion concerning certain affirmative defenses and rejected the defendants’ motion for summary judgment regarding all claims detailed in Benson’s Fourth Amended Complaint. Benson offered the testimony of a forensic psychiatry expert and employment law expert to substantiate its claims of employment discrimination, harassment, and retaliation. As discussed below, the Court excluded the testimony of the employment law expert but admitted the testimony of the forensic psychiatry expert.

    Forensic Psychiatry and Employment Law Expert Witness

    Defendant filed successive Daubert motions to exclude the testimony of Benson’s experts Dr. Christiane Tellefsen, M.D. and Amy Johanna Oppenheimer J.D., B.A. 

    Dr. Christiane Tellefsen is a board-certified general and forensic psychiatrist, retained to provide opinions regarding Amanda’s medical diagnoses, causation, and damages. 

    Amy Oppenheimer is an attorney retained to offer expert opinions on the acceptable human resources practices of employers in response to complaints of workplace discrimination, harassment, and retaliation and whether Defendants’ actions with respect to Benson met the standard of care. 

    Discussion by the Court 

    Dr. Christiane Tellefsen

    Dr. Christiane Tellefsen was retained by Benson to opine on whether or not Benson had an disorder and if she did, Tellefsen was required to assess the possible effects it could have on Benson’s employment at the Lincoln Fire Department in Lincoln, Nebraska. Tellefsen was of the opinion that Benson had major depressive tendencies which exacerbated her PTSD symptoms resulting from her employment at the Lincoln Fire Department and that the nature of her condition was chronic which necessitated ongoing treatment. 

    Dr. Tellefsen reviewed the report of a neuropsychological evaluation conducted by Defendants’ expert Dr. Robert George Arias, Ph.D. and on her second report dated December 10, 2020 opined that Dr. Arias’ report was inconsistent with Benson’s history and treatment and the symptoms of personality disorder listed by him were either incorrect, such as pill abuse, or more fully consistent with her PTSD. Dr. Tellefsen opined that Benson relapsed into her depressive tendencies and anger issues stemming from her abusive childhood as a result of her situational stress at the Fire Department. She also attributed  Benson’s physical problems resulting from her work related injuries and her loss of relationships to situational work-related stress. 

    Defendants have not challenged the qualifications of Expert Tellefsen but have instead questioned the relevance of Tellefsen’s testimony contending it was of little assistance to the trier of fact. Expert Tellefsen has not elaborated which aspect of Benson’s employment exacerbated her mental health problems or how discrimination, retaliation or harassment worsened her mental health condition and not workplace stressors common to all firefighters.  

    But the Court however held that Tellefsen’s opinions were suggestive of Benson’s deteriorating mental health being linked to the discrimination, retaliation and harassment she was subjected to at her workplace instead of workplace stressors common to all firefighters because Tellefsen had acknowledged, especially in her deposition, that despite the existence of both sources of stress, Benson was able to cope successfully with the common stressors.  

    Defendants also contended that Tellefsen’s testimony lacked a reliable methodological basis considering her diagnosis of the sources of Benson’s mental health issues was not based on verifiable test results or scientific testing. For instance, Tellefsen by her own admission had ceased to use the Minnesota Multiphasic Personality Inventory (MMPI). 

    The Court noted that Tellefsen’s forensic methodology of conducting a psychiatric examination was universally recognized in the psychiatric community as a reliable method for differential diagnosis and causation analysis. Besides, the Court was of the opinion that the jury should take into account the sufficiency and validity of the reasons that Tellefsen stated for precluding the use of MMPI instead of rejecting her testimony for not using that one particular diagnostic tool. The Court admitted the testimony of Expert Tellefsen but nevertheless permitted the defense to pursue the issue through means of cross examination. 

     Amy Oppenheimer

    Oppenheimer is an attorney not licensed in Nebraska who was retained by Benson as a human resources expert to review the Defendant’s human resource practices with regard to allegations of discrimination, harassment and retaliation. Oppenheimer was tasked with opining on typical and acceptable human resource practice with regard to responding to and investigating complaints of employment discrimination.  

    Oppenheimer listed multiple flaws and deficiencies in the Defendant’s response to and investigation of Benson’s workplace discrimination, harassment and retaliation claims and concluded that Defendant’s termination of Benson was wrongful. 

    The Court held that Oppenheimer’s opinions were of no assistance to the trier of fact. The Court does not question the reliability of Oppenheimer’s testimony or her qualifications but held that Oppenheimer opined on matters of law which invaded the province of the Court such as her testimony on the acceptable human resource practices Defendant was supposed to follow to conduct its investigation of Benson’s claims seeks to define the “standard of care” followed by the Defendants by something other than this Court’s statement of the applicable law. Moreover, the testimony by Oppenheimer about reasonable investigation techniques that Defendants could have employed does not properly demonstrate the inadequacy of the investigation techniques Defendants did use. 

    Held 

    The Court denied the Defendants’ Daubert motion to exclude the testimony of Plaintiff’s expert Tellefsen but granted the Defendants’ Daubert motion to exclude the Testimony of Plaintiff’s expert Oppenheimer. Since the issues involved in this case are yet to be resolved, the outcome of the case remains to be seen. 

    Key Takeaways: 

    1. Legal Conclusions: The expert is not allowed to invade the jury and the Court’s province by drawing conclusions as to matters of law. Oppenheimer in the instant case sought to define the “standard of care” by something other than the Court’s statement of the applicable law which served as basis to exclude her testimony. 
    1. Reliability of the testimony: Defendant sought to exclude the testimony of expert Tellefsen primarily because she precluded the usage of MMPI, a standardized diagnostic tool which did not warrant exclusion as was held by the Court because the Defendant was required to look into the sufficiency and validity of the reasons Tellefsen cited for excluding MMPI.