Expert Witness Profiler

Tag: Designation

  • Psychology Expert Witness’ Testimony Admitted Because of His Involvement in a Research Project Related to TMS

    Psychology Expert Witness’ Testimony Admitted Because of His Involvement in a Research Project Related to TMS

    Wave Neuroscience alleged that Brain Frequency infringed four patents in this case. The vast majority of claims asserted in this litigation against Brain Frequency are method claims that relate to the performance of a medical procedure by medical practitioners on patients. Defendants claimed that Brain Frequency is immune because it is a “related health care entity” that merely facilitates the performance of those accused medical activities by medical practitioners.

    Section 287(c) of the Patent Act, known as the Physician’s Immunity Statute, mandates an exception to infringement claims asserted under Section 271 (a) and (b) of the Patent Act. In cases where infringement allegations involve medical practitioners or physicians performing medical procedures on patients in violation of an asserted method claim, these parties are immune from all remedies associated with the alleged infringement.

    The Plaintiffs contended that Brain Frequency is neither a medical provider nor a facility where medical providers practice medicine.

    Wave filed a motion to strike Brain’s expert report of Dr. Jared Dempsey under Federal Rule of Evidence 702. The Court granted Wave’s motion “without prejudice to the extent Brain can cure the deficiencies with Dempsey’s qualifications.” Two weeks later—on October 17, 2024—Brain filed a “Notice of Cure.” This included a revised declaration by Dempsey which, among other things, detailed his involvement in the Study. Brain also filed, under seal, the study itself. Brain contended that this information cured the deficiencies.

    Psychology Expert Witness

    Jared P. Dempsey, Ph.D. serves as Chief Scientist at Trac9 Informatics. Dempsey is actively involved in neurological and physiological research in addiction.

    Recent publications include preliminary evidence for a biological marker of addiction recovery, non-conscious emotional response to drug stimuli, and the influence of social anxiety on addiction treatment.

    Dempsey has also served as an expert reviewer for the Journal of Motivation and Emotion, Psychopharmacology, Journal of Psychopathology and Behavioral Assessment, American Journal on Addictions, Addiction, Psychiatry Research, European Psychiatry, Nicotine and Tobacco Research, and the Journal of Studies on Alcohol and Drugs.

    Dempsey was also actively involved in the development of a comprehensive symptom tracking and outcome data collection tool for addiction treatment, Trac9.

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

    Discussion by the Court

    Initially, the Court held that Dempsey did not have the proper qualifications because there was insufficient evidence to demonstrate he had “advanced training or experience” in Transcranial Magnetic Stimulation (“TMS”). The Court found that the reference to a single research project related to TMS from May 2022–April 2024 (the “Study”) on Dempsey’s curriculum vitae, without further information, did not establish that he had a “hands-on or technology-facing” role.

    However, Dempsey attests that he directly participated in the treatment of subjects using TMS and EEG technology, that he outlined the precise treatment protocols used in the study, and that he participated in the actual application of TMS using EEG and certain software to gauge the effects. This appeared to be a “forward-facing role.” Dempsey further states he has worked on the Study since 2022 for over 1,000 hours, along with months of preparatory work.

    Wave’s Objections

    The Court held that Wave’s two objections are unavailing. First, Wave maintained that Dempsey is not qualified to opine as a person of ordinary skill in the art (“POSITA”). Its primary qualm is that Dempsey does not explain “the nature of actual TMS treatments provided.” But the Study itself explains the nature of the treatments. And the Court does not see how the “nature of the treatments,” or what the TMS treatments were targeted to, would affect whether Dempsey is a POSITA. Wave’s own proposed definition of a POSITA is not cabined to a specific type of TMS treatment.

    Second, Wave also claims that it will suffer undue prejudice if Brain is granted relief. The Court does not see how Dempsey’s testimony, if any, would prejudice Wave. Wave has been on notice of Dempsey’s testimony since at least May 2024 when Brain filed its opening claim construction brief. The October 2, 2024 status conference proceeded under the assumption that Dempsey would testify at the Markman hearing. The Court explicitly granted Brain an opportunity to cure the deficiencies in its designation. The Court added that any assumption on Wave’s part that Dempsey’s conclusions or testimony would be permanently excluded was unwarranted.

    Because Brain has cured the deficiencies in Dempsey’s designation as a POSITA, the Court vacated the order granting Wave’s motion to strike. Wave may, of course, seek appropriate discovery, including an abbreviated deposition of Dempsey, to inquire into issues that impact the credibility and weight of his testimony (e.g., his background, experience, and any other appropriate matters). Such discovery will be sufficient to cure any “prejudice” that Wave has suffered in the past three weeks.

    Held

    The Court held that the that the order granting motion to strike Brain Frequency’s expert Jared Dempsey is vacated, and Wave’s motion to strike Dempsey is denied.

    Key Takeaway:

    Initially, the Court held that Dempsey did not have the proper qualifications because there was insufficient evidence to demonstrate he had “advanced training or experience” in Transcranial Magnetic Stimulation (“TMS”). Two weeks later, Dempsey submitted a revised declaration which, among other things, detailed his involvement in the Study. The Court found that Dempsey directly participated in the treatment of subjects using TMS and EEG technology, that he outlined the precise treatment protocols used in the study, and that he participated in the actual application of TMS using EEG and certain software to gauge the effects.

    Case Details:

    Case Caption: Wave Neuroscience, Inc. V. Brain Frequency Llc Et Al
    Docket Number: 5:23cv626
    Court: United States District Court, Texas Western
    Order Date: October 22, 2024
  • Insurance Expert Witness’ Testimony Excluded Despite Being Crucial to Plaintiff’s Claims

    Insurance Expert Witness’ Testimony Excluded Despite Being Crucial to Plaintiff’s Claims

    The CLM Trust is the owner of real property including a home and multiple barns located at 25 Cattle Farm Road in Picayune, Mississippi. At all times relevant, these structures were insured under a homeowner’s policy issued by State Farm Fire and Casualty Company. CLM’s lawsuit arises from alleged damages caused by Tropical Storm Claudette on or about June 19, 2021, and additional damage caused by Hurricane Ida on or about August 29, 2021. State Farm’s estimate of damages to the home totalled $5,505.17, the actual cash value of which falls below the Policy deductible. On March 11, 2024, CLM designated its expert Public Adjuster/Appraiser, Richard Lyon to contest State Farm’s estimate of damages incurred. State Farm filed its motion to strike expert Lyon and supporting memorandum pursuant to Federal Rules of Civil Procedure 26 and 37 and Federal Rules of Evidence 702 and 403.

    CLM was required to designate its expert witnesses no later than March 12, 2024. CLM timely filed its expert designation identifying Lyon and incorporating his June 8, 2023, estimate of repair for the home and additional Property structures. In its purported designation, CLM stated “Lyon’s report will be supplemented upon completion.” On June 6, 2024, more than two months after expiration of CLM’s expert designation deadline, CLM filed its motion to supplement expert eeport and amend case management order incorporating Lyon’s written May 30, 2024, expert report. State Farm argued that, not only is Lyon’s original report inadequate, but the supplemental report is an untimely “initial report” and sought to strike Lyon’s opinions for non-compliance with Rule 26.

    Insurance Expert Witness

    Richard Lyon is a licensed and bonded public insurance adjuster. He the founding member of Gulf Coast Adjusting, and enjoys over 15 years of working in the construction and insurance industries.

    Lyon has been continually licensed by the State of Louisiana # 508253 and State of Mississippi # 10180259 and the State of New Jersey #1513282 as a Public Adjuster. He is proficient with insurance industry leading estimating software Xactimate and Xactcontents. Lyon is an admitted expert in the field of Claims Damage Estimating in Federal Court in the Eastern District of Louisiana.

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

    Discussion by the Court

    Adequacy of Plaintiff’s Expert Disclosure

    CLM’s initial expert designation included Lyon’s curriculum vitae, compensation rate, previous testimony, photographs, roof reports, and estimates. CLM’s initial designation did not include the basis and reasons for Lyon’s estimates; the facts or data relied upon by Lyon in forming his opinions; or a written, signed report as to Lyon’s expected testimony. The Court held that these documents clearly do not meet requirements of a written report and are deficient pursuant to Rule 26. According to Rule 26, the initial report must be complete and not vague. Moreover, the Court held that Lyon’s estimates, without explanation or opinions, constitute “conclusory unsupported allegations.”

    CLM argued that Lyon’s estimates constituted a report because it was to be supplemented at a later date. The Court held that CLM failed to properly designate Lyon as an expert on March 11, 2024. It was not until June 6, 2024, almost three months after CLM’s expert designation deadline, that it provided Lyon’s written May 30, 2024, report.

    Substantially Justified or Harmless Factors

    CLM argued that even if Lyon’s report was initially inadequate, the inadequacy should be excused as his report would still have to be substantially changed after State Farm provided its Supplemental Disclosures. CLM further argued that because a supplemental report would have been necessary regardless of Lyon’s initial report, any potential error is substantially harmless.

    The Court looks to the following factors to determine whether a party’s failure to timely disclose an expert is harmless or substantially justified: “(1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.”

    The explanation for the failure to identify the witness

    The first factor weighed in favor of State Farm. State Farm’s production of critical documents on March 25, 2024, after CLM’s expert designation deadline necessitated the subsequent report. As addressed earlier, Lyon’s “subsequent report” is instead his initial report. CLM failed to state why the initial report was not produced until more than two and a half months after the designation deadline or why Lyon needed this time to review the “critical documents” necessary to author his report. Instead, it appeared to the Court that CLM failed to explain to Lyon his true assignment—to create a report—until well after the designation deadline, uprooting CLM’s argument that Lyon intended to make a report on March 12, 2024.

    The Court granted CLM an extension to March 12, 2024, in which to file its expert designation. CLM had ample time to submit Lyon’s initial report in a timely manner. Simply put, CLM was aware that the Rule 26 disclosures were due. It has failed to state why an initial report was not filed prior to the deadline.

    Plaintiff asserted that Lyon is absolutely essential to CLM’s claims. While this factor leans in favor of CLM, the Court held that the importance of proposed testimony cannot ‘singularly override the enforcement of local rules and scheduling orders.’ Additionally, the importance of the testimony underscores how critical it is for a Plaintiff to timely designate the expert.

    Potential prejudice in allowing the testimony

    CLM did not timely designate Lyon. So, Lyon’s untimely report left State Farm without the chance to retain a counter-expert. CLM’s motion for leave to file supplemental expert report on June 6, 2024, was the first time it provided Lyon’s May 30, 2024, supplemental report, more than two months after State Farm’s expert designation deadline had expired. Additionally, this failure left State Farm’s deposition of Lyon at a disadvantage to prepare for trial or anticipate his future testimony. During his May 30, 2024, deposition, Lyon repeatedly could not, or refused to, answer questions regarding his investigation and inspection of the CLM property. Additionally, Lyon testified in his deposition that the June 8, 2023, estimate produced in CLM’s initial expert designation is “no longer relevant.”

    The availability of a continuance to cure such prejudice

    The ability and opportunity for State Farm to depose Lyon as to his May 30, 2024, report with a continuance still does not solve the prejudice, as “this would obviously result in additional delay and increase the expense of defending this lawsuit.” While CLM offered State Farm “the option to re-depose Lyon at Plaintiff’s expense after submission of the supplemental reports” this offer does not address the likely delay in the case and prejudice to State Farm. Additionally, a continuance would not alleviate the prejudice to State Farm as the discovery and expert deadlines have expired. Absent a rescheduling of deadlines State Farm is unable to retain counter-experts. Granting an extension of those deadlines would require a continuance of the trial, which weighs in favor of the Court striking Lyon’s opinions.

    Held

    The Court granted State Farm’s motion to strike Plaintiff’s expert Richard Lyon.

    Key Takeaways:

    • Importance of proposed testimony cannot singularly override the enforcement of local rules and scheduling orders.
    • The ability and opportunity for State Farm to depose Lyon as to his May 30, 2024, report with a continuance still does not solve the prejudice, as “this would obviously result in additional delay and increase the expense of defending this lawsuit.” 
    • The delay of even a few weeks in disclosing expert testimony disrupts the Court’s schedule and the opponent’s preparation and is thus prejudicial.

    Case Details:

    Case Caption: Bigelow V. State Farm Fire And Casualty Company
    Docket Number: 1:23cv285
    Court: United States District Court for the Southern District of Mississippi, Southern Division
    Order Date: October 27, 2024
  • Disability Expert Witness Testimony Admitted Citing Extensive Experience in Special Education Litigation

    Disability Expert Witness Testimony Admitted Citing Extensive Experience in Special Education Litigation

    North East Independent School District (NEISD) appealed the administrative decision by a Special Education Hearing Officer (SEHO) in favor of the minor student I.M., who qualifies for special education services due to autism and an intellectual disability. Following an evidentiary hearing, the SEHO determined that the NEISD had failed to provide I.M. with a free appropriate public education (FAPE) in violation of the Individuals with Disabilities Education Act (IDEA). As a remedy, the SEHO ordered NEISD to provide Extended School Year services to I.M. during the summer of 2023.

    In response to the SEHO decision, NEISD contended that the decision was legally erroneous and lacked support from the evidence presented during the hearing. NEISD sought an order from the Court to reverse and vacate the SEHO decision.

    I.M., represented by his mother as the next friend, counterclaimed against NEISD, seeking attorney’s fees under the IDEA as the prevailing party in the administrative proceedings.

    Both parties submitted cross motions for summary judgment to the District Court. The motions addressed two primary issues: firstly, whether I.M. had indeed received a FAPE from NEISD, and secondly, whether I.M. was entitled to the requested amount of attorney’s fees. The latter consideration involved a discussion on whether the fee request should be reduced based on I.M.’s relative success in the administrative proceedings and the outcomes of settlement negotiations between the parties. These motions are fully briefed and ripe for a ruling by the District Court. 

    NEISD sought the Court’s consideration of additional evidence beyond the administrative record, specifically a three-page investigatory letter from the Department of Justice (DOJ) dated October 24, 2023. This letter was addressed to NEISD and pertained to a complaint filed with the U.S. Attorney’s Office by I.M.’s parents subsequent to the SEHO hearing. The complaint alleged a violation of the Americans with Disabilities Act (ADA).

    In the complaint, I.M.’s parents asserted that the staff at an after-school program had engaged in discriminatory practices against I.M. based on his disability. The alleged discriminatory actions included refusal of enrollment, cancellation of enrollment, and failure to provide accommodations for both I.M. and other children with Autism Spectrum Disorder or similar disabilities. The DOJ investigatory letter served as a piece of evidence in the case, and NEISD sought to introduce it in support of its arguments during the legal proceedings.

    I.M. filed two motions related to NEISD’s expert, Jose L. Martín, who was designated to provide expertise on the attorney’s fees claimed by I.M. in his counterclaim. The first motion sought the exclusion of Martín, asserting that NEISD’s designation of him was untimely in violation of the Court’s Scheduling Order.

    In the second motion, I.M. contested NEISD’s designation of Martín, invoking Federal Rule of Evidence 702 and Daubert standards. The challenge questioned the admissibility and reliability of Martin’s expert testimony on attorney’s fees. I.M. argued that the designation did not meet the criteria set forth in the applicable rules and standards, warranting the exclusion of Martin’s expert testimony from consideration in the legal proceedings.

    Disability Expert Witness

    Jose L. Martín is a founding partner at the law firm of Richards Lindsay & Martín, L.L.P. located in Austin, Texas where his practice focuses on disability issues, litigation affecting school districts, and special education under key federal statutes, including the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act.

    As an attorney, Martín represents numerous public school districts in the state of Texas. Through his legal work, he has gained extensive experience in addressing the day-to-day challenges faced by schools in their efforts to comply with both state and federal disabilities laws. He is a graduate of the University of Texas in Journalism, and the University of Texas School of Law.

    As a strong advocate for preventive legal measures, Jose L. Martín actively engages in sharing his expertise through various presentations. Martín’s commitment to preventive legal practices is evident through his participation in both national and regional conferences on Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act.

    Discussion by the Court

    The IDEA provides that, when reviewing an administrative decision under the IDEA, the Court (i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the Court determines is appropriate. 

    I.M. opposed the inclusion of the Department of Justice (DOJ) letter as additional evidence, contending that the letter was not relevant to the issues under consideration by the Court. I.M. argued that there was no ADA claim pending before the Special Education Hearing Officer (SEHO) during the administrative proceedings.

    In contrast, NEISD argued that the DOJ letter was pertinent to I.M.’s counterclaim for attorney’s fees, asserting that the content of the letter and the related settlement negotiations influenced the reasonableness of I.M.’s fee request. NEISD specifically contended that its settlement offer, which involved offering no-cost enrollment in the same afterschool program addressed in the DOJ letter, could have provided I.M. with more favorable relief than what was obtained through the SEHO decision.

    During the Court’s hearing, NEISD confirmed that including the DOJ letter in the evidentiary record for the District Court would not necessitate the supplementation of the parties’ summary judgment motions. NEISD maintained that the inclusion of the DOJ letter was an efficient means of illustrating the existence of an additional related claim that NEISD sought to address through its settlement offer.

    Following the arguments presented by both parties at the hearing, the Court granted NEISD’s motion to consider additional evidence outside of the administrative record. Notably, this decision occurred after I.M. rescinded her opposition to the motion.

    I.M. filed a motion seeking the exclusion of expert Jose L. Martín, arguing that NEISD’s designation of Martín was untimely as per the Court’s Scheduling Order. The Court, however, denied the motion, pointing out that the Scheduling Order had set an expert-designation deadline of November 8, 2023, for parties asserting claims for relief and a deadline of November 22, 2023, for parties resisting claims of relief.

    In this context, NEISD designated only one expert, Martín, on November 21, 2023, specifically to testify on the attorney’s fees claimed by I.M. and the question of whether they are reasonable and necessary. The Court noted that Martin’s expert report clearly demonstrated that he was presenting an opinion solely on I.M.’s counterclaim. Consequently, NEISD, in relation to this expert, fell under the category of a party resisting a claim for relief. As such, the Court deemed NEISD’s expert designation to be timely, in accordance with the deadlines specified in the Scheduling Order.

    As to I.M.’s reliability challenge filed against Martín’s testimony, Daubert set forth four specific factors that the trial court should ordinarily apply when considering the reliability of scientific evidence: (1) whether the technique can or has been tested; (2) whether it has been subjected to peer review or publication; (3) whether there is a known or potential rate of error; and (4) whether the relevant scientific community generally accepts the technique. 

    The Court determined that NEISD successfully met the burden of establishing the reliability of Jose L. Martín’s proposed expert testimony regarding I.M.’s counterclaim for attorney’s fees. Martín, a licensed attorney and founding partner at Richards, Lindsay, and Martín in Austin, specializes in disability issues, litigation affecting school districts, and special education cases under the Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act (ADA). His extensive experience includes litigating on behalf of school districts in Texas, consulting with Departments of Education nationwide, and speaking on topics related to special education and the IDEA.

    In rendering his opinion, the Court noted that Martín had thoroughly reviewed the SEHO decision, I.M.’s administrative-level complaint, various declarations filed on behalf of I.M., the offers of settlement made during the administrative proceedings, and other documents in the administrative record.

    Martín’s expert report asserted that I.M. qualified as a prevailing party under the IDEA, but recommended a significant reduction in the requested attorney’s fees. The reduction was suggested because I.M. did not achieve all the relief sought during the administrative proceedings, and Martín opined that I.M. could have obtained more favorable results by accepting NEISD’s settlement offer.

    After examining Martín’s expert report, along with the parties’ briefs and considering arguments from counsel during the Court’s hearing, the Court concluded that I.M.’s motion did not present a genuine challenge to the reliability of Martín’s testimony. The Court observed that I.M. failed to identify any purported defects in Martín’s methodology or the reliability of his methods in opining on I.M.’s counterclaim for attorney’s fees. Instead, the disagreement between the parties revolved around differing perspectives on what transpired at the administrative level, how to assess the relief granted by the SEHO compared to what I.M. sought, and whether a reduction in fees was justified.

    Held

    The Court granted NEISD’s motion to consider additional evidence outside of the administrative record but denied both I.M.’s motions pertaining to NEISD’s expert, Jose L. Martín. 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 denial of I.M.’s motion to exclude expert Jose L. Martín underscores the importance of adherence to court-issued scheduling orders. In this instance, NEISD’s timely designation of Martín, who focused specifically on I.M.’s counterclaim for attorney’s fees, was deemed compliant with the deadlines set forth in the Scheduling Order.

    The Court’s reliance on the Daubert factors in evaluating the reliability of Martín’s expert testimony establishes a precedent for assessing the soundness of expert opinions in the context of special education litigation. Martín’s extensive experience and thorough review of relevant documents contributed to the Court’s determination that his testimony was reliable.

    The Court’s observation that I.M.’s challenge did not constitute a true reliability challenge underscores the importance of identifying specific defects in an expert’s methodology when challenging the reliability of expert testimony. In this case, the disagreement between the parties centered on differing interpretations of events at the administrative level and the appropriateness of fee reduction, rather than any identified flaws in Martín’s methodology.

    Overall, these key takeaways emphasize the nuanced nature of expert testimony in special education litigation, requiring a careful consideration of procedural timelines, adherence to court orders, and a focused assessment of the reliability of expert opinions.

    Case Details:

    Case Caption North East Independent School District V. I.M. B/N/F Bianca R.
    Docket Number 5:23cv769
    Court United States District Court, Texas Western
    Citation 2024 U.S. Dist. LEXIS 13214
    Order Date January 24, 2024