Plaintiff Mark Craighead (“Plaintiff” or “Craighead”) brought this wrongful conviction action against Defendants for, among other things, malicious prosecution and coerced confession related to his conviction for the 1997 Murder of Chole Pruett.
Plaintiff sought damages for mental and emotional injuries allegedly caused by his arrest, interrogation, conviction, and incarceration.
The Plaintiff disclosed Errol Liverpool, his treating counselor, who treated him for nearly nineteen months and diagnosed him with Post-Traumatic Stress Disorder (PTSD) and adjustment disorder. Defendants retained Dr. Sami Farhat to compile a forensic rebuttal report in which he concluded that he could not substantiate a clear loss of functional impairment or significant psychological injury resulting from Craighead’s wrongful incarceration.
Dr. Steven Farmilant, Plaintiff’s rebuttal expert, administered a series of diagnostic tests, diagnosed Plaintiff with Complex Post-Traumatic Stress Disorder (CPTSD) and major depressive disorder, and subsequently compiled a surrebuttal expert report in which he concluded that Plaintiff’s diagnoses were attributable to his wrongful incarceration.
Defendants filed motions to strike the testimony of experts Errol Liverpool and Steven Farmilant while Plaintiff filed a motion to strike the opinions of Defendants’ retained expert, Dr. Sami Farhat.
Mental Health Expert Witness
Dr. Errol E. Liverpool has been a licensed professional counselor for many years. He got his Ph.D. in counselor education from an accredited university in 2001.
Dr. Steven R. Farmilant received his MA in counseling psychology in 1992 and his doctor of psychology in 1995, and has been a licensed clinical psychologist since 1997. He taught courses at the Adler School of Professional Psychology for 15 years, including courses in trauma and victimology.
Sami Farhat, Ph.D., is a clinical and forensic psychologist based in the Metro Detroit region of Michigan. Farhat obtained his Ph.D. from the University of Detroit Mercy.
He completed a postdoctoral fellowship in Forensic Psychology at the Arkansas State Hospital through the University of Arkansas for Medical Sciences (UAMS), where he was subsequently appointed as Assistant Professor of Psychiatry conducting court ordered evaluations and serving as an expert witness. He participated in training and education, including supervising doctoral interns and presenting at the state wide training for community evaluators. During his time with UAMS, he also maintained a part time private practice where he conducted criminal and disability evaluations.
Defendants argued that Liverpool is not qualified to diagnose PTSD or offer opinions concerning its cause because he is a licensed professional counselor rather than a psychologist, psychiatrist, or forensic clinician; has not published on PTSD or trauma; lacked forensic training; and testified that he was appearing as a treating clinician rather than an expert witness.
Defendants further challenged the reliability of Liverpool’s PTSD diagnosis because he made it during the first treatment session, did not conduct a structured diagnostic interview or symptom-validity testing, did not review collateral records, and was unfamiliar with certain provisions of the DSM-5-TR.
The Court found that Liverpool may testify as to Craighead’s PTSD diagnosis and treatment. His opinions regarding his time as Plaintiff’s treating clinician define the scope of his testimony; they do not disqualify him from offering opinions formed during treatment altogether.
Defendants’ attacks on Liverpool’s PTSD diagnosis go to weight, not Liverpool’s overall qualification to testify as an expert on Craighead’s treatment and PTSD diagnosis, and Defendants are free to challenge its veracity during cross-examination at trial. A treating provider may rely on interviews, reported history, observed symptoms, and the course of treatment in offering opinions.
The Court further held that it will not prohibit Plaintiff from eliciting Liverpool’s causation opinion attributing Craighead’s PTSD diagnosis to his wrongful incarceration.
Accordingly, Liverpool may testify that, in his clinical opinion formed during the course of treatment, Plaintiff’s arrest and incarceration caused or contributed to the PTSD and related symptoms he treated. His testimony must remain confined to opinions formed during treatment and based on the clinical history, observations, training, and experience he relied upon in treating Plaintiff; he may not offer causation opinions developed at counsel’s request or from sources extraneous to that treatment.
B. Sami Farhat
Plaintiff argued that Farhat relied on incomplete data, offered only a “null” opinion, focused on functional impairment Plaintiff does not claim, and prepared an untimely surrebuttal.
The Court found that Farhat may offer opinions as to his timely rebuttal report, subject to certain limitations, and that he may not testify as to any opinions offered in his notes critiquing Farmilant’s report.
With respect to Farhat’s rebuttal report, his interview and record review provide a reasonable basis for an evaluation-specific opinion. Rule 702 does not require an expert to review every available record or contact every collateral witness before offering an opinion. The omitted treatment records and family interviews are proper subjects for cross-examination.
The Court held that Farhat may describe his examination, the materials he considered, his clinical observations, and his conclusion that the information available to him did not substantiate clinically significant functional impairment or a diagnosable psychological condition. He may not offer the broader opinion that Plaintiff experienced no functional impairment throughout the relevant period or equate the absence of clinically significant impairment during his evaluation with the absence of emotional injury or compensable damages.
Plaintiff also sought to exclude a surrebuttal critique prepared by Farhat after reviewing Farmilant’s report. Plaintiff argued that the critique was untimely, exceeded the scope of permissible rebuttal, and introduced new opinions after the expert-disclosure deadlines had passed.
The Court will not excuse an unauthorized and untimely expert disclosure based on a materially inaccurate account of the discovery record. Accordingly, Farhat may explain and defend the opinions contained in his timely report only. He may not offer any additional opinions first expressed in his notes critiquing Farmilant’s rebuttal.
C. Steven Farmilant
Defendants challenged Farmilant’s qualifications, SIMS and PAI analysis, CPTSD diagnosis, and causation opinion.
The Court found that Farmilant is qualified. He has been a licensed clinical psychologist since 1997, taught trauma and victimology, and provides clinical and forensic trauma services. The absence of board certification, memberships, or publications on the precise subjects affects weight, not qualification.
The testing disputes also go to weight. Farmilant explained how he integrated recognized instruments with records, interviews, observed behavior, and other indicators, including why the SIMS did not establish malingering and why the PAI coefficient did not support schizophrenia. Defendants may challenge the SIMS-score discrepancy, the supporting literature, the PAI interpretation, and the absence of CAPS-5 or PCL-5 testing; but Rule 702 does not require perfect methodology for expert testimony to be admissible.
Farmilant may testify to CPTSD. Its absence from the DSM-5 is not dispositive because it appears in the ICD-11 and Farmilant explained the criteria applied. Plaintiff does not intend to elicit PICS testimony. If it arises, Farmilant may describe Post Incarceration Syndrome (PICS) as a literature-based concept or PTSD subtype, but not as an official DSM-5 or ICD-11 diagnosis. Farmilant’s causation opinion is also admissible. He considered treatment and correctional records, collateral information concerning pre- and post-incarceration functioning, testing, and alternative stressors. Differential etiology requires consideration, not elimination, of every conceivable contributing cause.
The weight assigned to particular alternatives is for cross-examination.
Held
The Court granted in part and denied in part the Defendants’ motion to strike the testimony of Dr. Errol Liverpool. Liverpool may testify regarding PTSD diagnosis and treatment, longitudinal observations, Plaintiff’s disclosures and symptoms, causation, and treatment-related trauma concepts. He may not testify concerning adjustment disorder, Farhat’s forensic methodology, or false-confession science.
The Court granted in part and denied in part the Plaintiff’s motion to bar Dr. Sami Farhat. Farhat may testify to his timely report subject to the stated limitations but may not offer opinions first expressed in the rebuttal critique.
The Court granted in part and denied in part the Defendants’ motion to strike the testimony of Dr. Steven Farmilant. Farmilant may testify regarding his diagnoses, validity testing and malingering analysis, and causation. Any PICS testimony is limited as stated above.
Key Takeaway
An expert’s factual foundation must be sufficient for the particular opinion offered, and the Court may prevent an expert from extending a limited dataset beyond what it can reliably support.
Please refer to the blog previously published about this case:
Plaintiff Anthony Rebmann sues Astec, Inc. d/b/a Astec of Tennessee and Astec Industries, Inc. (collectively, “Astec”) based on an incident on March 19, 2020, when, in the course of his employment at an asphalt plant, his left hand became entangled in an Astec baghouse screw conveyor. Astec has answered and has also filed a Third-Party Complaint against Rebmann’s employer at the time, Gernatt Asphalt Products, Inc. (“Gernatt”), claiming contribution and negligent training and supervision.
Astec sought to strike the report of Plaintiff’s life-care expert, Nadeem I. Hussain, M.D. and has also filed motions in limine to exclude the testimony of Plaintiff’s products-warnings (or “human factors”) expert, Gerald M. Goldhaber, Ph.D. and Plaintiff’s products-liability expert Thomas A. Berry, P.E.
Plaintiff has filed his own motion to exclude or limit the opinions of Astec’s expert, Dennis B. Brickman, P.E.
Safety Expert Witness
Dr. Gerald Martin Goldhaber has emerged as the nation’s leading safety warnings and communication expert. He is the publisher of the Goldhaber Warnings Report. His clients have included over 100 of the top 500 corporations in the U.S. Fifty of the top 100 law firms and government agencies, including the FDA (for whom he consulted on a new nutritional label). Goldhaber’s clients have also included the Consumer Product Safety Commission (CPSC) to establish guidelines for products ranging from All Terrain Vehicles (ATV’s) to soda bottles to in-line skates, the USDA for whom he has consulted about potential warnings for sugary products.
Dennis Barry Brickman is an industry veteran with over 40 years of mechanical engineering and materials science experience.
Brickman has developed specialized expertise in the safety of children’s products, outdoor power equipment, tree care machinery, elastic cord products, and automatic door sensor systems.
Thomas Alan Berry holds a Master of Science in Mechanical Engineering from Wichita State University and a Bachelor of Science in Mechanical Engineering from the same institution.
He has authored at least 15 peer-reviewed papers presented at ASAE/ASABE and ASME conferences between 1985 and 2013, covering topics such as PTO safety, agricultural equipment accidents, forklift tipover risks, pallet truck accidents, mower stability, and gasoline geysering hazards.
Plaintiff has retained Thomas Berry, P.E., as an engineering expert in this case. Berry has opined that Astec “knew or should have known of technically and economically feasible design alternatives that would have significantly reduced and/or eliminated the risk to operators without unnecessarily affecting the utility of the [baghouse] machine.”
Astec sought to exclude Berry’s opinions regarding causation and alternative designs, arguing that he “failed to properly test and validate his opinions, basing them instead on unsupported assumptions.”
1. Clearance Between Door and Nip/Shear Point
The first alternative design is to add “clearance between the access door opening and the nip/shear point created by the extremely small distance between the auger flighting and the housing.” According to Berry, “this could be accomplished by raising the edge of the access door opening or providing a grate guard for the lower area of the opening, or by utilizing a left-hand flighted screw that would move the nip area to the back of the auger rather than directly below the access opening.”
a. Testing
The Court concluded that Berry did not need to perform testing as to his alternative of raising the edge of the access door opening. Astec’s expert has asserted that “[f]lighted screw augers typically have a close clearance with respect to their housing [because] otherwise, material builds up and does not adequately move near the housing interior structure.” That is sensible and understandable, but the housing in the area at issue appears to be rectangular, containing a cylindrical auger. With that geometry, the Court concluded that no testing would be required to support Berry’s opinion that raising the lower edge of the access door opening could put the pinch/nip point beyond the reach of fingers when the hand is grasping the lower edge of the housing.
b. Cost
Astec asserted that Berry has failed to conduct a “meaningful” comparison of the cost versus utility of his proposed alternative designs.
Plaintiff did not dispute the importance of cost in the analysis. But Plaintiff maintained that the associated costs were zero, nominal, required by industry standards, or otherwise based on Berry’s training, education, and experience.
As to cost, Berry asserted that raising the lip of the access opening could be provided “at no or little difference in cost.”
Absent special considerations that are not immediately apparent and that could be the subject of cross-examination, the Court agreed that no further explanation or analysis is necessary for Berry’s opinion that designing or cutting the port in the auger housing to place the lip of the access door at a higher point would carry little or no cost difference.
c. Efficacy
Astec also argued that Berry’s report lacks evidence that the proposed alternative designs “could have prevented” Rebmann’s injuries. Plaintiff maintained that the standard is not whether the design would have “prevented” the injury, but whether the design would have resulted in greater safety.
The Court agreed with Astec that designing the crossover screw with left flighting instead of right flighting would not have been materially safer. Berry asserted that the change “would move the nip area to the back of the auger.”
Raising the lower edge of the inspection door opening, however, does not suffer from the same problem. Astec correctly observed that Berry’s supplemental report recommends raising the edge by “a few inches” which is not a particularly precise specification. And if “a few inches” means just two or three inches, then Astec may be correct that the modification would not eliminate the risk of entanglement for a hand grasping the bottom edge of the inspection door opening. But the Court is not persuaded that Berry needed to calculate precisely how many inches the edge would have to be raised. It is apparent from the layout and geometry of the inspection door opening that raising the bottom edge by some number of inches—more than two but less than half the height of the inspection door opening—would put the nip/shear point more than a finger’s length away.
2. Bars on Lower Area of Access Opening, or Grate
a. Testing
Similar to the alternative of raising the bottom edge of the inspection door opening, the Court concluded that Berry did not need to test the alternative of adding bars across the lower area of the access opening. This solution is functionally identical to raising the edge of the door opening. The main difference is that that lower area of the access opening would be covered with parallel bars instead of solid metal.
b. Cost
Like the alternative of raising the bottom edge of the inspection door opening, Berry asserted that the cost of adding bars would be low; in his view, “less than $10-15.” Astec maintained that Berry’s cost estimate should be excluded for lack of any “meaningful explanation.”
The Court is not persuaded that more explanation is required; the proposed alternative design appears to involve ordinary components that could be incorporated into the inspection door opening at modest cost.
c. Efficacy
Similar to raising the bottom edge of the inspection door opening, adding a sufficient number of bars at the lower area of the opening would put the nip/shear point more than a finger’s length away. Astec argued that dust accumulation in the area would prevent visibility through the bars.
At his deposition, Berry conceded that dust accumulation between the bars would obstruct visibility if the bars were not cleaned off. Even if not cleaned off, the alternative design is for bars only on the lower area of the access opening; the upper area would still offer views into the enclosure. The Court concluded that Berry can testify to the bars as an alternative design.
3. Interlock
a. Testing
Berry’s third proposed alternative design would be to provide an interlock system “such that the augers could not operate with the access doors open or [without] a grate guard in place” to prevent contact with the running auger that would “still allow the dust to escape during the clearing operation and would allow visual inspection of the augers and shafts.”
There appears to be no dispute that interlock technology existed at the time the baghouse was designed and manufactured in the 1980s, But Astec asserted that Berry should have conducted testing to determine whether such a device “would work on the Baghouse.”
The Court agreed that adding an interlock device would be a “more substantial modification” to the Baghouse, and that the practicality and specifics of installation of an interlock depends on the machine to which it would be applied.
Although it appeared that it would at least be possible to conduct testing of an interlock system applied to the Baghouse, the Court concluded that the lack of any testing or modeling weighs somewhat against admission of Berry’s opinions on the interlock design.
b. Cost
In his report, Berry asserted that integrating “interlocked doors and grate guards” into the Baghouse would cost “approximately $200 per opening.”
Astec maintained that Bery “gives no explanation, sources, or support” for that assertion.The Court agreed with Astec that further support is necessary for Berry’s price estimate because the cost estimate must consider more than purchase price.
Astec noted that Conveyor Equipment Manufacturers Association (CEMA) industry manual is “an industry group not focused on regulation (or authorized to regulate) but on voluntary standardization of conveyor design.” Even assuming that the CEMA manual purported to require interlocks for applications like the Baghouse, the manual would not constitute regulatory or binding authority. Thus, the cost of an interlock system remains relevant to the reliability inquiry.
c. Efficacy
Perhaps the most important consideration as to the interlock design is whether it would improve safety without negatively impacting maintenance and inspection. Berry and Rebmann both testified that Rebmann needed the crossover screw to be running while he was looking into the inspection door because he needed to determine whether the repair to the screw was successful.
The Court is unpersuaded on this point. If disabling the proposed interlock were the only way to accomplish the inspection, Plaintiff could argue that the time spent doing so could have called extra attention to the need for caution near the spinning auger. Moreover, disabling the interlock would not have necessarily been the only way for Rebmann to complete his task. One version of the interlock that Berry proposes is that it would prevent the augers from operating unless a grate guard was in place. In that scenario, Rebmann would likely have simply replaced the grate guard, rather than attempting to disable the interlock mechanism. The Court concluded that all of these questions about testing, cost, and efficacy of an interlock system are suitable for cross-examination but are not a basis to exclude Berry’s testimony on that alternative.
4. Safety Signs
There appears to be a dispute about whether Astec supplied safety signs on or near the inspection door when the product was delivered to Gernatt in 1984. No warning signs or labels are visible on or near the inspection door in the contemporaneous photographs. However, Astec Vice President George Francisco testified in 2024 that he worked for Astec for over 31 years, and that in his experience during that time, Astec would affix warning labels to areas like the inspection door on the baghouse at issue in this case.
a. Testing
Aster’s arguments about the proposed addition of safety signs or warning labels do not appear to include a lack-of-testing criticism. In the context of warning labels, the testing that is often most relevant involves “creating several warning labels that varied with respect only to a single characteristic and then gauging peoples’ reactions to the various labels.”
Here, in contrast, the inquiry is only the presence or absence of any warning labels at all. Testing might be helpful to determine how long a safety sign would remain attached or visible in a dusty and vibrating environment, but the court does not conclude that such testing was necessary here.
b. Cost
Berry asserted that safety signs at each access door could have been provided “at a cost of less than $3 each.” Astec faults that assertion as unsupported by any explanation or sources.
The Court concluded that no further support is required for the proposition that, at least compared to the total cost of a baghouse, industrial safety signs were relatively inexpensive in the 1980s. Whether special adhesion or paint might be required for equipment in a dusty and vibrating environment would be fair game for cross examination.
c. Efficacy
Astec contended that “there is a complete absence of factual support for Berry’s conclusion that the alleged failure to warn was a proximate cause of Plaintiff’s injuries.”
Astec cited Berry’s testimony stating that he agreed that “it’s reasonable to expect that [warnings on equipment] [are] not going to be read.” Plaintiff countered that “the general concept that not all warnings are followed, does not negate Astec’s responsibility to adequately warn.”
The Court agreed with Plaintiff on this point; safety signs and placards have long been established as “resulting in greater safety.” The Court’s reasoning below as to Astec’s motion to exclude Plaintiff’s products-warnings expert, Goldhaber, supports this conclusion.
B. Gerald Goldhaber, Ph.D.
1. “Unsupported Assumptions” on Effectiveness of Warnings
Astec contended that Goldhaber’s opinions are “premised on the false narrative that Plaintiff was told to get close to the moving screw to check it.”
At his deposition, Goldhaber asserted that Robert Rebmann, Anthony Rebmann’s uncle and immediate supervisor, directly ordered Anthony Rebmann to “first clean the dust out, and inspect those augers.”
The fact that Robert Rebmann agreed that the “check” required the augers to be turning does not prove that he expressly instructed Anthony Rebmann to perform the check. Based on its review of Robert Rebmann and Anthony Rebmann’s testimony, the Court agreed with Astec that there is no support for the proposition that Robert Rebmann expressly instructed to carry out a “check” or “inspection” of the repaired crossover screw (or how to perform that check). The Court therefore agreed to limit Goldhaber’s testimony insofar as he might opine that Rebmann received instructions to put aside his training, background, or common sense.
Astec has a further criticism about the factual basis for Goldhaber’s report: Astec contended that his opinions “disregard that Plaintiff habitually ignored safety protocols, safety training and safety procedures.” The original report, dated August 8, 2024, did not discuss Rebmann’s prior safety incidents. The Court concluded that, at best, it is debatable whether Rebmann’s prior workplace injuries and a verbal reprimand for failing to wear a hardhat show that he “habitually ignored” safety protocols, training, or procedures. In any case, Goldhaber has addressed Rebmann’s prior safety incidents in the supplemental report.
2. Goldhaber’s Own Testimony and Writing on Effectiveness
Astec further argued for exclusion of Goldhaber’s opinion about the effectiveness of warning signs or placards as being “in direct contradiction to his own testimony and work on the effectiveness of warnings.”
However, the inquiry is not whether warning signage would have made the user aware of a danger of which they were previously unaware. The inquiry is whether a warning would have increased the user’s awareness of the danger. Rebmann testified that if warning signs or labels had been present “it would have made me think about becoming—it would have made me think about coming in close proximity a little bit more.” A jury can assess that testimony, and the Court will not exclude Goldhaber from offering similar testimony.
3. Warnings Standards as of 1984
Goldhaber’s report specifically faults Astec for failing to comply with ANSI Z535.4, which lie asserts “has been in effect since 1968.” Astec insisted that “in reality, the first version of the ANSI Z535.4 standard for product safety signs and labels was published in 1991, seven years after the Baghouse was manufactured and delivered to Gernatt.” Plaintiff maintained that ANSI Z35.1-1968 was approved in September 1968 and that the Occupational Safety and Health Administration (OSHA) “adopted this standard in 1971, requiring workplaces to comply with it starting August 31, 1971.”
Astec cited a post on the ANSI website indicating that ANSI Z535.4’s “initial publication” was in 1991—after the Baghouse was manufactured in 1984.
The Court accepts that as true, but Astec’s argument on this point fails to account for the fact that ANSI Z535.4’s predecessor is USAS 235.1. And federal regulations incorporated the Z35.1-1968 standard in 1984.
For all of the above reasons, the Court denied Astec’s motion to exclude Goldhaber’s testimony.
C. Nadeem Hussain, M.D.
Astec contended that Hussain’s report is “an entirely new report that fails to contradict, challenge, or rebut Defendant’s corresponding report,” and that it is “not based on any new or previously unavailable information that would trigger a duty for Plaintiff to supplement its report.”
There is no dispute that Hussain’s report cannot qualify as an initial expert disclosure. Plaintiff’s deadline for initial expert disclosures was August 30, 2024, and Plaintiff submitted Hussain’s report well after that date.
The Court concluded that Hussain’s report is partly a proper rebuttal and partly and improper new expert report. Insofar as the report violates the discovery rules, the Court considers the following factors below.
a. Plaintiff’s Explanation
Plaintiff’s explanation is that he offered Hussain’s report “to contradict or rebut evidence on the same subject matter.”
The majority of Hussain’s life-care plan did not repel, counteract, or disprove the opposing expert’s diagnostic report. But there are exceptions: Hussain’s inclusion of massage therapy implicitly contradicts the opposing expert’s opinion that it is not medically necessary, and Hussain’s inclusion of costs for prosthetics and related supplies for Rebmaim’s lifetime implicitly challenges the opposing expert’s remark about prosthetic abandonment. This factor is therefore mixed.
b. Importance of Hussain’s Testimony
In general, a second life-care plan is not particularly important to Plaintiff’s case. But medical opinions on the necessity or utility of the highest dollar-value treatments are very important to Plaintiff’s damages case. This factor is also mixed.
c. Prejudice to Astec
Plaintiff argued that Hussain’s report does not prejudice Astec, particularly because Astec had “an opportunity to rebut his report in writing and did so.”
Astec maintained that allowing Hussain would result in significant prejudice. The Court is not persuaded that any of the items that Astec lists weigh significantly in favor of striking Hussain’s report. Instructions to the jury can mitigate concerns about giving more weight based on the quantity of evidence. The discovery order can be amended without prejudicing either side. Preparing to oppose a second life-care expert will require some additional expense, but it is not excessive in proportion to all the other expenses in this litigation.
d. Possibility of Continuance
Finally, Plaintiff asserted that a continuance is possible because “there is time afforded by the current case management order to complete expert discovery and depositions; and there is no trial date.”
In December 2024, when Plaintiff filed his opposition to Astec’s motion to strike Hussain’s report, the Court had ordered expert depositions completed by March 15, 2025. Now, in mid-2026, all of the deadlines in that prior order have passed. However, it remains true that there is no trial date set in this case.
For the reasons discussed above, the Court declined to strike Hussain’s report. The Court instead elects to grant Astec an opportunity to serve a surrebuttal report.
D. Dennis Brickman, P.E.
Plaintiff sought preclusion of Brickman’s March 2025 report, arguing that it is untimely insofar as it contains new information and references.
The first issues are whether Brickman’s March 2025 report is a timely and proper supplementation. Plaintiff has identified no court order altering the deadline, and because no trial date has been set, Rule 26(a)(3)(B)‘s 30-day deadline has not yet expired.
The Court therefore rejected Plaintiff’s assertion that Brickman’s March 2025 report is untimely supplementation. The more significant dispute is whether it is proper “supplementation” at all.
Plaintiff argued that Brickman’s March 2025 report is not supplementation, asserting that Brickman “undertook new work and testing based on information and materials that were equally available to him at the time of his first report.”
For the reasons above, the Court rejected Astec’s explanations for providing the “supplemental” report. In the Court’s view, Brickman’s March 2025 opinions regarding the AGSCO mesh guard are of limited importance because Berry cited that manufacturer’s product only as an example. The AGSCO product’s one-inch openings might allow a finger to pass through, but a different screen with openings smaller than one inch could be specified. Moreover, even a screen with one-inch openings would have been safer than no screen at all.
At the same time, Brickman’s March 2025 opinions about reduced visibility from the proposed interlocked mesh guard are more detailed than his opinion on that topic in his October 2024 report. Plaintiff asserted that failure to exclude Brickman’s March 2025 report or related testimony would result in “extreme” prejudice. The Court concluded that any such prejudice can be mitigated by granting Plaintiff the opportunity for a surrebuttal.
Held
The Court denied Astec’s motion in limine to exclude Gerald Goldhaber’s testimony.
The Court granted in part and denied in part Astec’s motion in limine to exclude Thomas Berry’s testimony.
The Court denied Astec’s motion to strike the expert report of Nadeem Hussain.
The Court denied Plaintiff’s motion to preclude the opinions of Dennis Brickman.
Key Takeaway
Turning to the question of the proper sanction for failure to conform to the discovery rules, the Court considers (1) the party’s explanation for the failure to comply with the discovery order; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance.
Dave Neil Speedie (Father) filed a petition under the International Child Abduction Remedies Act (ICARA), the statute that implements the Hague Convention on the Civil Aspects of International Child Abduction (the Convention).
Father sought the return of his minor children, L.S. and I.S., from Washington, where they are presently in the custody of Alexi Dawn Speedie (Mother).
Mother served her expert witness disclosures and identified Dr. Jeffrey L. Edleson as a proposed witness. She stated: “This expert witness will not produce a report. He will testify at trial.” Mother also stated in the disclosure that Edleson will explain how research on children’s exposure to domestic violence, including coercive control, presents a grave risk of psychological and physical harm as well as an intolerable situation for the two children who are the subject to this Hague petition.
Dr. Jeffrey L. Edleson is a Distinguished Professor of the Graduate School and the Harry & Riva Specht Chair Emeritus in Publicly Supported Social Services at the University of California, Berkeley, School of Social Welfare.
He is ranked as one of the top scholars in the world studying domestic violence, being a leading authority on children exposed to domestic violence.
Mother contended that Edleson will not “present evidence under FRE 702, 703, or 705,” but will testify as a “court educator on the topic of children’s exposure to domestic violence.” Thus, Mother argued, Edleson need not provide an expert report.
It is clear to the Court that Mother intended to offer Edleson for expert testimony. In the witness disclosure, Mother said that Edleson would “explain how research on children’s exposure to domestic violence, including coercive control, presents a grave risk of psychological and physical harm as well an intolerable situation for the two children who are the subject to this Hague petition.” Mother also referred to Edleson as an “expert witness.”
Mother’s invocation of the concept of “court educator” as opposed to expert witness is unavailing, since they strike the Court as the same thing.
Because Edleson’s proposed testimony is that of an expert, Mother’s disclosure of his identity should have been “accompanied by a written report.” And because Mother has not shown that this failure was substantially justified or is harmless to Father, the Court excluded his testimony.
Held
The Court granted Father’s motion in limine to exclude the testimony of Jeffrey L. Edleson, Ph.D.
Key Takeaway
Under Rule 26, a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. And this disclosure must be accompanied by a written report-prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case.
Plaintiffs’ home was damaged by a fire on June 21, 2021. At the time of the fire, Plaintiffs had an insurance policy with State Farm.
Plaintiffs alleged that Defendant State Farm failed to abide by the policy which allowed, at the insureds’ option, to either have the damage repaired or pay for the damage. Plaintiffs alleged that State Farm, without their consent issued payments to Plaintiffs and the mortgage holder rather than allowing Plaintiffs to decide whether to accept payment for the damage or repair the property.
Defendant sought to exclude the testimony of Pete Hennessey, Plaintiffs’ expert witness pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, arguing that Hennessey’s report is insufficient.
Construction Expert Witness
Peter Hennessey has been building homes for over 25 years. He has personally built over three hundred residential homes and is one of the most respected home builders in the industry.
Hennessey stated that it is his opinion that it would be too risky and too expensive for the type of home to be rebuilt, to put it on top of the then existing foundation after the fire, which was not engineered to current standards.
The basis of the facts or data considered by Hennessey included an examination of the site, obtaining estimates from subcontractors and preparing a detailed building budget report, which he set out in an exhibit attached to his report.
However, the Court found that Hennessey’s report is entirely inadequate under Rule 26 standards. The most critical requirements of the Rule–the basis and reasons for the expert’s opinions and the data or other information considered–are totally lacking.
In other words, the mere submission of subcontractor estimates told Defendant nothing about the substance of Hennessey’s calculation of the damages and estimated repair costs and left it open to unfair surprise.
Although the surprise and prejudice could be cured by taking Hennessey’s deposition, the Court declined to require this of Defendant because doing so would shift the burden of disclosure onto Defendant whereas this burden is placed squarely on Plaintiffs by the Rule. Plaintiffs elected to designate Hennessey as an expert who may be used to provide evidence under Federal Rule of Evidence 702, 703 or 705, and then failed to provide the requisite information required by Rule 26(a)(2)(B).
However, Plaintiffs were granted additional time to comply with Rule 26(a)(2)(B) by submitting an expert report prepared and signed by Hennessey in accordance with the requirements of the Rule, if they wished to offer Hennessey as an expert witness.
Held
The Court granted Defendant’s motion to strike the testimony of Pete Hennessey.
Key Takeaway
Plaintiffs have offered nothing to establish that the failure to comply with Rule 26(a)(2)(B) was substantially justified. The surprise and prejudice to Defendant as a result of the failure are significant and have not been cured to date through supplementation or otherwise.
On April 29, 2024, Helen Olenik and John Olenik were passengers aboard Carnival Corporation’s ship, M/V Carnival Pride. Helen Olenik fell on an exterior tile floor after walking through sliding glass doors leading from the interior of the ship to the Serenity pool deck.
Defendants filed a motion to strike and exclude the opinions of Plaintiff’s experts, Francisco De Caso Basalo and Nicholas D. A. Suite, and a separate motion to strike Plaintiff’s supplemental Rule 26 expert disclosure for Nicholas Suite, as well as the untimely supplemental disclosure concerning Victoria Maria-Sekunda.
Civil Engineering Expert Witness
Francisco Jose De Caso Y Basalo has over fifteen years of experience conducting slip resistance evaluations in maritime and other environments, has testified as an expert in numerous slip-and-fall cases, and participates in the Advancing Standards Transforming Markets (“ASTM”) F13 Committee on Pedestrian/Walkway Safety and Footwear Standards Development.
De Caso is also the founder of The Integrated Built Infrastructure Group LLC, which specializes in pedestrian walkway safety and slip resistance evaluation. He is a Certified XL Tribometrist, has completed the Walkway Safety Certification program at the University of North Texas College of Engineering, and has earned the Walkway Auditor Certificate from the National Floor Safety Institute.
Nicholas David Alexander Suite received his M.D. from The Johns Hopkins University School of Medicine and completed postgraduate training in neurology (including chief residency) at The New York Hospital–Cornell University Medical Center, with an additional year of neurology residency at the University of Miami School of Medicine. He is the Owner and Director of Neurology Diagnosis & Applied Solutions (NDAS) and has served in academic teaching roles including Clinical Assistant Professor of Neurology at Nova Southeastern University’s Dr. Kiran C. Patel College of Allopathic Medicine.
Victoria-Maria S. Sekunda, PsyD is a board certified clinical neuropsychologist who conducts neuropsychological evaluations and diagnostic assessments, primarily with older adults on an outpatient basis.
Carnival contended that De Caso is not qualified to opine on human factors or housekeeping standards. Also, Carnival avers that the majority of De Caso’s opinions are speculative and unsupported by a reliable methodology.
The Court noted that Carnival did not contest De Caso’s qualifications as a slip resistance expert but challenged his qualifications to opine about human factors and housekeeping standards.
Carnival did not contest the reliability of De Caso’s slip index measurements of the subject floor but challenged his opinions as lacking any identifiable methodology. These included his opinions that the floor was more likely than not to become wet at the time of the incident, as well as his later observations—made approximately one and a half years afterward—of a grease film, which he inferred was present on the day in question. With respect to De Caso’s opinions beyond his slip index testing, Plaintiff failed to establish any reliable methodology.
It should be noted that Plaintiff has agreed to redact all legal conclusions from the expert report and limit the testimony of De Caso to opinions related to his slip index testing.
ii. Dr. Nicholas Suite and Dr. Victoria-Maria Sekunda
After the filing of the motion, on February 4, 2026, Plaintiff served Carnival a supplemental Rule 26 expert witness disclosure which included a report from Suite. Thereafter, on February 6, 2026, Plaintiff served Carnival a second supplemental disclosure which disclosed a new witness, Dr. Victoria-Maria Sekunda, and a copy of her report concerning neuropsychological evaluations conducted of Helen Olenik.
Carnival argued that discovery closed on January 6, 2026, and the deadline for the Parties to file dispositive pre-trial motions was January 28, 2026. As such, Carnival contended that the late disclosure of those reports is neither substantially justified nor harmless, and the reports should be excluded. Carnival also sought to exclude the testimony of Suite and Sekunda.
Carnival pointed out that even though Suite evaluated Helen Olenik and prepared a report dated September 22, 2025, the report was not served until four months later, after discovery closed and the deadline for filing dispositive motions passed. Basically, Carnival contended that this report is the first time it has been asserted that Helen Olenik’s post-incident mental decline was caused by a head injury. Likewise, Carnival pointed out that Sekunda first evaluated Helen Olenik on November 25, 2025, yet the February 6, 2026, supplemental notice was the first time Sekunda’s role as a treating doctor was disclosed.
The Court found that Plaintiff has not satisfied his burden of showing that the failure to comply with Rule 26 was substantially justified or harmless.
As Plaintiff acknowledged, Suite’s report was not provided until February 4, 2026, well after the close of discovery and after the deadline to exchange expert witness reports. Similarly, Sekunda was not disclosed as an expert until February 6, 2026.
As for Suite, Plaintiff has offered no explanation for why he did not seek an extension of the Court’s deadlines.
Held
The Court granted the Defendant’s motion to strike and exclude the opinions from the Plaintiff’s experts, Francisco De Caso Basalo.
The Court also granted the Defendant’s motion to strike the Plaintiff’s supplemental Rule 26 expert witness disclosure for Nicholas Suite and untimely supplemental disclosure of Victoria Maria-Sekunda.
Key Takeaway
In determining whether a failure to disclose was substantially justified or harmless, the Court considers the non-disclosing party’s explanation for the failure, the importance of the information, and any prejudice to the opposing party if the information were admitted.
Plaintiff Jonathan Conner is a Jones Act seaman who worked for REC Marine aboard the M/V GOL Warrior. While working aboard the vessel, he suffered what was later diagnosed as a heart attack at some point in the day on January 27, 2024.
Conner alleged that REC Marine was negligent in its handling of his medical emergency and that the vessel was unseaworthy because the crew lacked the training and preparation required to respond appropriately to the medical emergency.
REC Marine filed motions to exclude and/or limit the testimony of two of Plaintiff’s designated experts—Captain Christine Hafen, Plaintiff’s marine liability expert, and Dr. Xianfeng Wen, one of Plaintiff’s treating physicians who is presently designated as a non-retained medical expert pursuant to Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure.
Maritime Expert Witness
Captain Christine Hafen possesses over 25 years of experience in maritime and offshore drilling, including roles as a ballast control operator, dynamic positioning operator, captain and chief mate.
Xianfeng Wen earned his medical degree from Shanghai Medical College of Fudan University in Shanghai, China. To begin with, he completed his residency in internal medicine and fellowship in cardiovascular disease at the University of Texas Medical Branch at Galveston where he served as chief fellow.
Board certified in cardiovascular disease and comprehensive echocardiography, Wen has practiced medicine since 2007. Moreover, he has extensive training in different aspects of cardiovascular care including non-invasive and invasive cardiovascular evaluation, advanced cardiovascular imaging and peripheral arterial and venous diseases.
REC Marine wished to exclude Hafen’s expert report and untimely report supplement. Defendant’s principal argument is that the first two sections of Hafen’s report are inadmissible because she based those opinions on REC Marine’s alleged lack of compliance with the International Safety Management Code (“ISM Code”), a set of regulations that arguably does not apply as a matter of law to the vessel Conner worked on.
Because the M/V GOL Warrior did not fall into the category of vessels that are required to be in compliance with the ISM Code, REC Marine argued that the ISM Code is wholly inapplicable to this matter and thus rendered Hafen’s opinions unreliable since they rested on irrelevant safety standards as applied to this vessel. Additionally, REC Marine wished to exclude the third section of Hafen’s report because it inappropriately provided legal opinions on the Receipt & Release Agreement, which REC Marine argued went outside of the bounds of appropriate testimony for a marine liability expert. It also sought exclusion of her supplemental report that was untimely submitted on March 31, 2026—just over two months after the deadline for Plaintiff to produce his expert reports.
Analysis
1. Opinions Based on the ISM Code Are Permissible.
The Court found that her expert testimony, reliant upon a seemingly widely accepted set of safety standards, provided the kind of specialized analysis that will assist the trier of fact in understanding the evidence in this case. REC Marine may challenge Hafen’s reliance on the ISM Code in cross-examination. And of course, the Court retained the ability to limit or control the scope of her testimony at trial. Overall, the Court will not limit or exclude Hafen’s testimony insofar as she pointed to the ISM Code in support of her conclusions.
2. Opinions About the Receipt & Release Are Inadmissible
REC Marine presses that the third section of Hafen’s expert report, which addressed the Jones Act, should be excluded both because it impermissibly reaches conclusions of law and because it goes beyond the scope of her expertise as a marine liability expert. The Court agreed. Moreover, Plaintiff “did not contest REC Marine’s motion to the extent it sought to prevent Hafen from opining concerning whether Conner’s release was consistent with the Jones Act.”
3. The Supplemental Report Is Excluded, Unless Used for Rebuttal
REC Marine asked the Court to exclude Hafen’s supplemental report because it is not a true supplement and instead contained new opinions and analyzed new data; thus, it should be excluded because it was disclosed over two months after Plaintiff’s deadline to provide his reports.
The Court reviewed the report and found that it went beyond the scope of Hafen’s initial report and is not a mere supplementation to her timely-disclosed expert report. Importantly, the data analyzed in the supplemental report is publicly available and thus was not “unavailable to” Plaintiff nor Hafen at the time of her initial report.
However, the Court noted that Hafen’s supplemental report was issued on March 31, 2026—within the 30-day rebuttal report deadline provided for in Rule 26(a)(2)(D)(ii). That rule provided that an expert disclosure must be made “within 30 days after the other party’s disclosure” so long as “the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C).” To the extent Hafen’s report operates as a rebuttal report to Defendant’s marine liability expert’s report concerning the interpretation of AIS data, the Court will exercise its discretion at trial to allow Hafen to testify as to her supplemental report in this limited way, i.e., as a rebuttal report, if Defendant’s expert’s testimony addresses these issues.
B. Wen’s Testimony Will Be Limited
Wen is properly designated as a non-retained expert and therefore falls within the parameters of Rule 26(a)(2)(C), absolving him of the written report requirement of Rule 26(a)(2)(B). The only question this Court considers is the appropriate scope of his testimony.
1. Compliance With Rule 26(a)(2)(C)
While the disclosed topics are the sorts of subject matters district courts tend to allow treating physicians to testify about, the disclosure is completely silent as to the facts relied upon by Wen in forming his opinions, except for reference to his records.
The Court agreed that mere reference to the medical records, without more, is insufficient to satisfy Rule 26(a)(2)(C)’s disclosure requirement because “ the question is not the level of specificity required in the summary, because Plaintiff has failed to produce any summary of the facts and opinions to which Wen is expected to testify.”
Testimony from a treating physician is certainly important evidence. However, considering that Plaintiff has a retained medical expert who has seemingly issued a timely report that touches on causation and future treatment, it is less important for Plaintiff’s treating physician to testify about causation and future treatment. Prejudice to REC Marine is most likely minimal, and REC Marine raised no prejudice arguments in its briefing. Furthermore, Defendant had the opportunity to take Wen’s deposition and, if it did, glean his perspective on causation and future medicals from his vantage point as a treating physician.
Overall, the Court will not exclude the defect in Plaintiff’s Rule 26 disclosures for Wen because such defect is most likely harmless to REC Marine.
2. Duplicative Expert Testimony Under Rule 403
Defendant cited no case wherein a district court has excluded a second medical causation or future medical treatment opinion as cumulative pursuant to Rule 403. As such, the Court will not, at this time, restrict Plaintiff from calling both a retained expert who specifically produced a report on causation and a non-retained expert who may be able to testify as to causation if his opinions are based on his personal treatment of Conner and nothing more.
Held
The Court granted in part and denied in part the motions to exclude and/or limit the testimony of Captain Christine Hafen and Dr. Xianfeng Wen.
Basically, the motions were granted to the extent that Hafen (1) may only testify as to her supplemental report if it can be properly considered a rebuttal report under Rule 26(e), and (2) may not testify as to the Receipt & Release Agreement. The motions were denied with prejudice as to Hafen’s opinions based upon the ISM Code.
Also, the motions were denied without prejudice as to Xianfeng Wen’s testimony as a non-retained expert.
Key Takeaway
Rule 26(e) allowed the supplementation of a disclosure, such as an expert report, “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect.” But supplementation is not limitless; courts have found that “expert reports may only be supplemented in limited circumstances, specifically where supplementation ‘means correcting inaccuracies, or filling the interstices of an incomplete report based on information that was not available at the time of the initial disclosure.’”
Plaintiff Sheli D. Milam Sams and Dr. Bradley Sams had Safeco Policy No. F335202 (“the Policy”) that included underinsured motorists (“UIM”) coverage. On February 13, 2021, Plaintiff was involved in an automobile accident in Colorado. The other driver, Semega Mahamadou, was at fault, and Mahamadou’s vehicle had an Allstate policy. Mahamadou’s Allstate policy had liability limits of $25,000 per person, and Allstate paid Plaintiff $25,000. Plaintiff’s sole formal doctor’s visit involved an x-ray in 2021. Dr. Charles Menendez interpreted the x-ray as showing a nondisplaced sternal fracture. Plaintiff’s husband provided treatment to her over the course of her recovery.
Defendant Safeco Insurance Company of Illinois (“Safeco”) sought to exclude or limit Sams’ designated experts, Dr. Charles Menendez and Plaintiff’s husband, Dr. Bradley Sams. Plaintiff argued that they acted as treating physicians.
Radiology Expert Witness
Charles Menendez is a board-certified radiologist who specializes in the general practice of radiology.
Bradley C. Sams received his medical degree and completed his residency training in obstetrics and gynecology at Louisiana State University Health Science Center. Sams is a member of the Mississippi Medical Association, the American College of Phlebology, and the American Association of Bariatric Physicians.
The parties contest whether Plaintiff properly disclosed her designated experts as treating physicians.
Plaintiff designated Menendez as a treating physician, so he was not required to provide a written report. But if a treating physician does not provide a written report, the physician’s testimony will be limited to opinions acquired based on the physician’s personal knowledge of the examination, diagnosis and treatment of a patient and not from information acquired from outside sources.
Menendez did not provide a written report, so any testimony he offers will be limited to be personal knowledge contained in his medical records and cannot come from information acquired from outside sources.
In contrast to Menendez, Sams’ disclosure as a treating physician did not satisfy Rule 26. A Plaintiff must provide more information than the treating physician’s facts, data, and symptoms he observed in his patients during treatment. Plaintiff provided no medical records from Sams which contain his expected testimony or a written report for that matter.
Alternatively, the Court determined that Sams admitted that he rendered no formal medical treatment to Plaintiff; this admission took Sams outside the scope of testifying as a treating physician, so he cannot satisfy Rule 26(a)(2)(C).
Held
The Court granted in part and denied in part Defendant Safeco Insurance Company of Illinois’ motion to exclude or limit the testimony of Charles Menendez and Bradley Sams.
Key Takeaway
A court considers the importance of the witnesses’ testimony. Because Sams did not render formal medical treatment to Plaintiff, his alleged expert testimony is not important. Besides, failure to properly disclose an expected expert’s testimony is grounds for prohibiting introduction of that evidence at trial.
Case Details:
Case Caption:
Sams V. Safeco Insurance Company Of Illinois
Docket Number:
1:24cv337
Court Name:
United States District Court, Mississippi Southern
This case arose from allegations of sexual abuse of a minor that purportedly occurred in 2006 but was not disclosed by the alleged victim until 2020. As the matter proceeded toward trial, both parties intended to introduce testimonial evidence at trial from experts in topics related to psychology. Although the Government did not challenge the qualifications of the Defendant’s proposed expert, Dr. Mary Lyndia Crotteau Huffman, it asked the Court to limit the scope of her testimony. In response, the Defendant agreed that Huffman would not offer opinions regarding the truthfulness or credibility of any witness.
The remaining expert testimony from Huffman that Defendant sought to exclude follows: characterizations of the victim’s delayed disclosure and the weight the jurors should assign to it in assessing credibility; characterizations of Defendant’s conduct relating to grooming; factually-applied opinions on memory and associated terminology; any testimony on false belief; and opinions on investigator bias.
Psychology Expert Witness
Mary Lyndia Crotteau Huffman obtained a PhD in human developmental and family studies and has served as a private consultant on children’s memory, eyewitness testimony, suggestibility, and interview techniques since 1997.
Huffman’s resume showed that she has authored numerous papers discussing the credibility of child victims, with titles like “Factors affecting the occurrence of lying in children”; “Categories of lies throughout childhood”; and “How reliable are children’s memories?”
The Government asked the Court to limit Huffman’s testimony of delayed disclosure to general concepts and to prevent her from offering opinion on witness credibility.
Huffman provided scientific support for the general idea that disclosures among children are highly variable. However, reliability of Huffman’s testimony addressing those specific factors and their relationship with delayed disclosure is not supported. In fact, Huffman’s opinion on the variability of delayed disclosure counters Defendant’s argument for admissibility of expert testimony as to the consideration of specific factors to determine credibility.
Thus, while Huffman may discuss general concepts behind delayed disclosure, she will not be permitted to characterize facts here (long disclosure delay, postincident vacation with Defendant and counseling without disclosure) without providing a reliable basis for that opinion that adds to what the jury can already appropriately assess.
Huffman may identify general “situational and relational factors” which may influence disclosure; however, she shall not inform the jury what they should consider in determining credibility of the report. Accordingly, the Court denied the Government’s motion to exclude this testimony but imposed limits on Huffman’s testimony consistent with this ruling.
2. Grooming
The Government asked the Court to prohibit Huffman from testifying that the Defendant’s conduct was not grooming and whether such conduct contributed to delayed disclosure.
Huffman provided scientific support for her assertion that, “although grooming is a well-documented factor that can inhibit disclosure, research does not support the claim that it occurs in the majority of cases or that it alone explains disclosure timing.”
The Government accurately noted that the studies cited by Huffman supported the Government’s expert’s opinion that grooming has a relationship to delayed disclosure.
However, Huffman’s opinion, considering confounding variables in research, is also true. Accordingly, the Court permitted general discussions of grooming and rebuttal to the Government’s expert’s opinions.
Defendant also intended to have Huffman indicate that she is surprised by the characterization of Defendant’s conduct – rubbing the stomach of the victim with others in the room or sleeping in the same room as the victim – as grooming, and that grooming would more likely occur in other circumstances like preparing the children for bed, a responsibility of the Defendant’s wife.
The Government argued that such statements are not scientifically supported and that Huffman should be prohibited from testifying that the under-the-clothes touching was not grooming or whether it contributed to lack of immediate disclosure. If the methodology for such an opinion were sufficiently supported through studies or experience, the testimony may be admissible. Defendant did not indicate how Huffman’s experience or cited research studies informed her methodology characterizing Defendant’s conduct to be outside the definition of grooming. Nor did she support the opinion that other non-grooming conduct negates the Government’s evidence and theory of grooming. Accordingly, the Court granted the Government’s motion to exclude this testimony and imposed limits on Huffman’s testimony consistent with this ruling.
3. Memory and Suggestibility
The Government asked the Court to limit Huffman’s testimony about memory, particularly implantations of false memories and suggestibility during interviews, with consideration of the different goals of interviewers. Further, the Government sought to prevent Huffman from using terms such as “investigative bias,” “tainted,” “distorted,” or “memory error.”
Defendant intended to elicit testimony from Huffman explaining how memories are formed and how suggestibility can influence their formation. The Government is most concerned with her statement that “when conversations, therapy sessions, bias interviews, or repeated interviews cause non-experienced events to sound familiar and plausible, children and even adults may confuse the true source of the information with their actual experience. Because of these memory errors, someone cannot distinguish between the truth and a false belief.”
The Government argued that the scientific basis for Huffman’s testimony on false memories is too remote in nature to provide reliable methodology for application to the facts of this case. However, the Government has not addressed Huffman’s apparent expertise based on her published material on false memory and suggestibility evident on her resume.
The Court permitted general discussions on false memory, interviewer goals, and suggestibility. The Court, however, refused to permit application to the facts of this case. Further, without additional support, Huffman will not be permitted to testify that “disclosures made during pastoral counseling sessions may be the result of a biased interviewer who is looking for abuse to explain typical behaviors of alleged victims.”
Moreover, Huffman will not be permitted to use of phrases “investigative bias,” “tainted,” or “distorted.” However, the Court did not find “memory error” in a generalized context to be argumentative. Thus, Huffman was allowed to opine on false memories and use the term “memory error.”
4. Investigator Bias
The Government filed a motion to exclude Huffman’s expert testimony that “text messages Victim 1 sent after she had disclosed the sexual abuse ‘improperly tainted Victim 1 with his preconceived notions of Bowles’ guilt.’”
Defendant argued for admissibility of Huffman’s opinion as to the soundness of the U.S. Army investigator’s conduct when she sought the collection of evidence through advising the victim to communicate with the Defendant through text.
While an expert’s experience can validate the methodology used in forming an expert’s opinion, this opinion is not backed by her experience and Defendant does not provide alternative support for her opinion.
Held
The Court granted in part and denied in part the United States’ motion in limine to limit the testimony of Mary Lyndia Crotteau Huffman.
Key Takeaways:
An expert’s testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments.
Opinions based on knowledge or experience of the expert may be admissible if reliable.
Case Details:
Case Caption:
United States of America V. Bowles
Docket Number:
3:24cr100
Court Name:
United States District Court, West Virginia Southern
This class action lawsuit arises out of Amazon’s practice of using smart-speaker technology (“Alexa”) to surreptitiously: (a) intercept; (b) eavesdrop; (c) record; (d) disclose; or (e) use millions of Americans’ voices and communications, all without their knowledge or consent. Such conduct blatantly violates Washington’s wiretapping law, which applies nationwide to Plaintiffs and all members of the Class.
Defendants here, Amazon.com, Inc. and Amazon.com Services LLC (collectively, “Amazon” or “Defendants”), are therefore liable as a result of their egregious violations of the State Wiretapping laws – and are also liable for their violations of the Washington Consumer Protection Act (“CPA”), the Electronic Communications Privacy Act of 1986 (“Federal Wiretap Act”), and the Stored Communications Act of 1986 (“SCA”). Plaintiffs Kaeli Garner, Jodi Brust, Diane McNealy, Michael McNealy, Ricky Babani, Jeffrey Hoyt, Lorlie Tesoriero, Ronald Johnson, Selena Johnson and Caron Watkins (collectively, “Plaintiffs”) brought this action individually, and on behalf of a Class of similarly situated individuals, to redress those violations of law.
Plaintiffs sought to exclude Amazon’s expert, Dr. Dominique Hanssens‘ opinions because he is not qualified to opine on privacy issues or the law and because the surveys he conducted are neither scientifically valid nor relevant to the issues in this case.
Marketing Expert Witness
Dominique Hanssens is a Distinguished Research Professor of Marketing at the UCLA Anderson School of Management and has been on the UCLA faculty since 1977. Hanssens’ undergraduate degree in applied economics was earned at the University of Antwerp. His M.S. and Ph.D. degrees are in Management from Purdue University. His focus is on strategic marketing problems, and both his research and his legal consultations have involved surveys and analysis regarding consumer perceptions and their response to alternative information disclosures.
Plaintiffs argued that, because Hanssens’ expertise is in marketing, not privacy, he should not be permitted to assess consumers’ understanding of Amazon’s privacy policies. But Hanssens does not opine regarding how or whether consumers understood Amazon’s disclosures. Rather, he designed and conducted two surveys, one to see whether providing additional information related to Amazon’s use of Alexa voice recordings impacted consumers’ decisions to register an Alexa device (“Materiality Survey”) and the second to test consumers’ awareness of information regarding how Alexa works and their satisfaction regarding the ease of finding that information (the “Awareness Survey”). Hanssens has knowledge and expertise in consumer marketing and survey design sufficient to offer an expert opinion in this case.
Plaintiffs also objected to Hanssens’ opinion that “individualized inquiry is needed to assess a particular Proposed Class Member’s awareness of and attitude toward a particular Alexa feature.”
The objection was abandoned in reply and is overruled. Hanssens describes the data and evidence that led him to that conclusion, including his own survey results.
B. Materiality Survey
Plaintiffs argued that Hanssens’ Materiality Survey is irrelevant because it tests a factual scenario that does not apply to any potential class member, one in which the Alexa-enabled device has already been purchased and the consumer must now decide whether to register the device. Although it is possible that a consumer could review Amazon’s policies before purchasing a device, the scenario Hanssens tested appears to be the most common way in which a user becomes familiar with those policies.
Hanssens ultimately concluded that “the likelihood to register an Alexa Device was statistically indistinguishable between the Test Group (which was shown additional information about Amazon’s practices) and the Control Group.” While the survey results and the conclusion drawn therefrom do not definitively resolve the issue of whether consumers would alter their behavior in the face of effective disclosures, they do suggest that the specific alterations Hanssens tested would not impact consumer behavior. To that extent, they are relevant.
The problem is that the survey that generated the data underlying Hanssens’ conclusions is unreliable. Hanssens used a participant panel that was already predisposed to share information, excluded anyone who had never purchased or lived with an Alexa device (decisions that may correlate with a heightened concern for privacy), excluded anyone who was uncomfortable sharing personal information (a defect compounded by the fact that demographic information was requested at the beginning of the survey), and excluded anyone who took the time to read the disclosures. Having disqualified 95% of the respondent pool, many for reasons that could bias the responses to the main question of the survey, the results of the survey did not reliably reflect consumer reaction to the tested changes in disclosures.
C. Awareness Survey
Hanssens’ awareness survey was designed to test Plaintiffs’ contention that consumers are unaware that Alexa records, transcribes, and stores voice interactions even when the recordings are not intended for Alexa, that the recordings and transcriptions are stored and used by Amazon forever, and that human reviewers listen to and annotate the voice recordings. The survey also assesses whether consumers find these practices acceptable and whether consumers are satisfied with the availability of information regarding Alexa’s features. Plaintiffs argued that the survey results are irrelevant because it is based on consumer knowledge in 2024 and/or at the time they registered their first Alexa device (if in or after 2019).
While this choice means that the survey results reflect consumer knowledge that has been bolstered by five to ten years of disclosures and may not accurately reflect consumer knowledge when Alexa devices were first introduced, it did not make the results irrelevant. The proposed classes undoubtedly include individuals who first purchased their devices in the studied time frame. While the survey is not coextensive with the class period and cannot reflect the information known to all class members, the results shed light on consumer awareness of the practices covered by the survey.
Plaintiffs further argued that the Awareness Survey is unreliable because Hanssens did no research or follow-up questioning to confirm the respondents’ recollections, as represented in their survey responses. He did, however, limit the time frame of the questions to five years. As long as a “survey was conducted in accordance with generally accepted survey principles and that the results were used in a statistically correct manner . . ., technical inadequacies in the survey, including the format of the questions or the manner in which it was taken, bear on the weight of the evidence, not its admissibility.”
Held
The Court granted in part and denied in part Plaintiffs’ Daubert motion regarding Dr. Dominique Hanssens’ opinions.
Key Takeaway:
Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion. That the opposing party can poke holes in a survey’s design and construction is not surprising: surveys are a scientifically constructed sampling method and, like any scientific method applied in the social sciences, there are bound to be limitations, restrictions, and flaws.
Please refer to the blog previously published about this case:
This case concerns alleged personal injuries suffered by Misty Adkins in a motor vehicle accident on August 22, 2023.
Adkins alleged that she was traveling southbound in Pike County, Kentucky, when Hacker pulled out in front of her, causing her to strike the rear of his vehicle. It is also alleged that Clemon Hacker was driving a truck on behalf of his employer, Gateway Tire Company, Inc., at the time of the accident and was acting within the scope of his employment.
Rick Lyon‘s report thoroughly outlines Adkins’ medical records on which he relies in crafting his expert report. The Defendants filed a motion to strike Lyon’s testimony and also sought to exclude any evidence or medical expenses related to Adkins’s alleged temporomandibular joint disorder (TMJ) injury, arguing that Lyon is not qualified to offer opinions relating to TMJ injuries because they are outside the scope of his expertise.
Orthopedic Surgery Expert Witness
John Richard Lyon (“Rick”), M.D., is a board-certified orthopedic surgeon and specializes in general orthopedics. He brings over 30 years of experience in orthopedics and sports medicine and has performed medical-legal evaluations for over 10 years.
Rule 26(a)(2) also mandates additional reporting requirements depending on the type of expert. Where the expert is “retained or specially employed to provide expert testimony,” as is the case with Lyon, the disclosure must include a written report containing facts or data considered by the witness in forming their opinion and exhibits that will be used to summarize or support them.
Because Lyon’s March 25, 2025 evidentiary deposition was tantamount to his taking the stand live at trial, Adkins’ introduction of this itemization at the evidentiary deposition without having previously disclosed it was improper. And to the extent it was intended to supplement Lyon’s original report, it was untimely.
Adkins argued that her untimely supplement was harmless. But this itemization document was a surprise to the Defendants, and since it was used to support Lyon’s trial deposition testimony which will be presented at trial, there is no genuine ability for that surprise to be cured. Moreover, her explanation for the failure to timely disclose this information was insufficient.
Accordingly, the Court granted Defendants’ motion to strike Lyon’s testimony, to the extent it concerns Adkins’ damages based on the untimely disclosure of her medical bills.
Motion in Limine to Exclude Evidence of Medical Expenses Relating to TMJ Injury
Lyon is not qualified to offer opinions relating to TMJ injuries because they are outside the scope of his expertise.
Adkins argued that Lyon is a board-certified orthopedic surgeon who has more than 30 years’ experience, and that he has treated “thousands of patients” during his career. Lyon often treats and diagnoses patients with conditions outside the scope of his specialty, makes referrals, and follows up with them about their overall health. He often performs IMEs as a retained medical expert, and in that role he is frequently asked to review medical records, perform examinations, author expert reports, and provide testimony outside the scope of his specialty.
Moreover, Lyon testified that, while he does not usually treat TMJ, he has treated patients with TMJ in the past, made the diagnosis, and referred them out to other doctors who specialize in handling the disorder.
Based on the foregoing, the Court found that Lyon is qualified to offer expert testimony on TMJ based on his knowledge, skill, and experience.
Held
The Court granted the Defendants’ motion to strike the testimony of Dr. John Richard Lyon, to the extent it concerns Adkins’ damages based on the untimely disclosure of her medical bills.
The Court denied the Defendants’ motion to exclude the testimony of John Richard Lyon relating to Adkins’ alleged TMJ injury.
Key Takeaway
It is undisputed that TMJ injuries are outside the scope of Lyon’s practice. However, a witness can be qualified as an expert based on their “knowledge, skill, experience, training, or education.”
Thus, where the proponent meets their burden, the Court has found that physicians or other medical professionals are qualified to offer expert testimony on subjects outside the scope of their practice based on their “knowledge, skill, experience, training, or education.”
