Expert Witness Profiler

Tag: Disclosure

  • Accident Reconstruction Expert Was Not Allowed to Opine on the Maintenance of Gravel Roads

    Accident Reconstruction Expert Was Not Allowed to Opine on the Maintenance of Gravel Roads

    Plaintiff Brooke Mann suffered serious injuries at a music festival in September 2021 when a shuttle tram on which she was riding tipped over on a sloped roadway.

    The Lost Lands Music Festival takes place each September at Legend Valley, a large outdoor venue near Buckeye Lake and Thornville, Ohio. The multi-day festival is dinosaur-themed and features electronic dance music. About 30,000 people attended the festival in 2021.

    Defendant Apex Event Management LLC is a Delaware company with its principle place of business in California. It promoted the festival in 2021, as it had previously. To present the festival, Apex contracted with other entities and individuals to acquire the necessary rights, to book talent, to market and sell tickets, and to obtain the goods and services needed for putting on the festival.

    Apex acquired the right to use Legend Valley through Defendant Trickle Productions LLC, an Ohio business.

    Plaintiff sued Apex Event Management, LLC and Trickle Productions, LLC whom she alleges are responsible for the accident under Ohio’s legal standards governing negligence.

    Plaintiff’s expert, James Crawford, has issued three separate reports. Apex and Trickle moved to strike the third report, dated December 12, 2024.

    Accident Reconstruction Expert Witness

    James B. Crawford is a forensic engineer and accident reconstructionist. He provides vehicular accident reconstruction services and has reconstructed over 750 accidents. He has provided expert testimony in Federal, State, and Municipal Courts.

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

    Discussion by the Court

    Defendants contended that Plaintiff improperly produced the third report after the Court’s August 26, 2024 deadline for the production of primary expert reports and even after the October 26, 2024 deadline for fact discovery.

    Whether the Third Report Qualifies as a Supplemental Disclosure

    Crawford’s third report is presented as a complete, stand-alone report. Even so, Plaintiff characterizes it as a supplemental disclosure under Rule 26(e)(2). She argued that disclosure of the third report was required because of new information she learned after Crawford prepared his second report.

    Zemba’s corporate representative, Bryan Paisley’s deposition did reveal a new fact – that in the course of creating the reconfigured section, Zemba placed dirt on top of the section of the road where the accident occurred. Had Crawford’s third report incorporated additional material to address that possibly new fact, then the Court would be inclined to agree with Plaintiff’s characterization of the third report as a supplemental disclosure. However, the third report did not even acknowledge, let alone discuss, the fact that dirt had been placed on top of the section of road where the accident occurred.

    The new “fact” which the third report instead addresses does not relate to the physical changes to the road but rather to Zemba’s motive in creating the new section of road. Paisley testified that Zemba built the new section – straighter and not as steep as the old section – because it would be easier for its dump trucks to use.

    The third report treated Paisley’s testimony as an admission that the old road was “unsafe.” Not only has Crawford mischaracterized Paisley’s testimony – insofar as Paisley testified that the new section was safer, not that the old section was unsafe – but the third report did not include any reconsideration of the conditions of the accident-scene road in light of Paisley’s testimony about dirt being placed on top of it during the 2022 reconfiguration. The Court thus found that the third report is not responsive to “information that was not available at the time” of the second report.

    Whether the Untimely Disclosure is Substantially Justified or Harmless

    The third report was indeed a surprise. Following the grant of prior extensions, the Court set a strict deadline of August 26, 2024 for the production of primary expert reports. It also set a dispositive motion deadline of December 20, 2024, and advised the parties that no further extensions would be granted. Plaintiff waited until after these deadlines to disclose the third report, and she did so only once Defendants’ motions for summary judgment were filed.

    The Court noted that the additional scope of Crawford’s third report (as compared to the second report) went beyond addressing Paisley’s purported admission that the accident-scene road was unsafe. Crawford added content discussing the Federal Highway Administration’s standards for the design and maintenance of gravel roads, the classification of the tram as a “commercial vehicle,” and the resulting implications under federal and state law.

    Because all of this additional material was first disclosed in the third report, Defendants did not have notice of Crawford’s new opinions until after the close of expert and fact discovery and after Defendants had moved for summary judgment.

    Held

    The Court granted the Defendants’ motion to strike the third report of Plaintiff’s expert James Crawford.

    Key Takeaway:

    While Defendants acknowledged that the new matters addressed in the third report have importance, Plaintiff has not provided a satisfactory explanation for the late disclosure of the third report. The reconfiguration of the accident road was known to Plaintiff several months in advance of the deadline for primary expert reports. To the extent Paisley’s deposition revealed a new fact (the placing of dirt on the old section of road) the third report does not address that fact.

    Case Details:

    Case Caption: Mann V. Lnkbox Group, Inc.
    Docket Number: 2:22cv2553
    Court Name: United States District Court, Ohio Southern
    Order Date: February 12, 2026
  • Psychology Expert Was Allowed to Opine on Voluntary Adult Sex-Work Subculture

    Psychology Expert Was Allowed to Opine on Voluntary Adult Sex-Work Subculture

    Defendants Brandon Washington and Maria Georgianna Palm are charged with various crimes arising out of their scheme to recruit, entice, harbor, transport, provide, obtain, and maintain vulnerable women, and to perform commercial sex acts for their financial benefit via threats of force, fraud, and coercion.

    The United States of America filed a motion in limine to exclude the testimony of Defendant Brandon Washington’s expert, Dr. Justin J. Lehmiller.

    The Government asked the Court to exclude the testimony of Lehmiller as an expert for several reasons: First, he is not qualified to educate the jury on the topic of sex trafficking, or commercial sex work. Second, he failed to comply with Rule 16(b)(1)(C)(iii) by failing to identify the opinions he will offer. Third, his proposed testimony will attempt to define the law, or it is irrelevant and not likely to assist the jury in deciding the facts in this case. And fourth, it violated Rule 403 because his proposed testimony is substantially outweighed by the danger it would confuse and mislead the jury.

    Psychology Expert Witness

    Dr. Justin J. Lehmiller is a social psychologist, author, and senior research fellow at the Kinsey Institute at Indiana University. Lehmiller received his Ph.D. in Social Psychology from Purdue University. He has authored books such as Tell Me What You Want: The Science of Sexual Desire and How It Can Help You Improve Your Sex Life and The Psychology of Human Sexuality (third edition published in 2023). The Psychology of Human Sexuality is a textbook that is used in college classrooms around the world. He has also published extensively in peer-reviewed journals on sexual behavior, marginalized and stigmatized relationships, casual sex, and consensual non-monogamy.

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

    Discussion by the Court

    While Lehmiller’s disclosure suffered from some deficiencies, primarily the lack of specific opinions, the Court did not find them so limiting as to warrant exclusion. The fact remains that he did identify the subject-matter topics he proposed to testify about. In essence, he provided notice of his expert opinions in summary fashion via general categorizations.

    Next, the Government suggested that Lehmiller’s testimony will impermissibly attempt to define the law and usurp the role of the Court by defining coercion or sex trafficking concepts. The Court will not tolerate this practice from any expert or the Government’s expert. Lehmiller will be permitted to provide testimony about the voluntary adult sex-worker subculture. He will not be permitted to define legal terms or attempt to tell the jury what the law is. Nor will he be allowed to opine on what he believes constitutes illegal coercion, or define what situations constitute “voluntary” sex work from “exploitation” or “trafficking” or attempt to redefine statutory terms.

    It appeared to the Court that Lehmiller’s expert disclosure was timely, and the Government has been provided with adequate notice and is not claiming surprise. Moreover, there are no allegations that the defense seeks to introduce undisclosed areas of his testimony.

    Moreover, the Government is free to attack Lehmiller’s qualifications or the lack thereof. It will be up to the jury to determine how much weight should be accorded to his opinions, but the remedy of outright exclusion is not warranted.

    Finally, the Court did not find that Rule 403 would be violated by allowing this testimony. Providing testimony to provide background, contextual testimony to assist the jury in understanding subject matter outside common experience is relevant and not prejudicial to justify exclusion.

    Held

    The Court denied the Government’s motion to exclude the testimony of Dr. Justin Lehmiller.

    Key Takeaway

    While Lehmiller’s background may be deficient in having exhaustive knowledge of the sex trafficking industry, that is not the standard for Rule 702 admissibility. The Court finds that while not overwhelming, when considering the totality of his education, research and training, Lehmiller’s proposed testimony meets the thresholds of relevance and reliability.

    Please refer to the blog previously published about this case:

    Law Enforcement Expert Allowed to Opine on the Dynamics of Consensual Adult Sex Work

    Case Details:

    Case Caption: United States V. Washington
    Docket Number: 2:23cr58
    Court Name: United States District Court, Washington Western
    Order Date: February 02, 2026
  • Construction Expert’s Testimony on Insurance Policy Application Excluded

    Construction Expert’s Testimony on Insurance Policy Application Excluded

    This case arises from an insurance coverage dispute regarding damage to Plaintiff O’Reilly Hotel Partners–Champions Circle, LLC’s (“Plaintiff”) hotel complex in Fort Worth, Texas (the “Property”). The Property consists of various buildings, including a hotel tower, a conference center, and a golf clubhouse. The case involves multiple insurance policies and multiple insurance claims stemming from events that occurred on different dates.

    Defendant Continental Casualty Insurance Company challenged the testimony of Plaintiff’s retained expert witnesses, Mike Krismer and Michael Barclay.

    Construction Expert Witnesses

    Mike Thomas Krismer, CIEC, has over 45 years of experience in structural repair and building renovation of residential, commercial, and public buildings. His primary focus has been water damage as it relates to the building envelope and structure.

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

    Michael C. Barclay is a general contractor and cost estimator. Barclay has knowledge of the condition of the Project. He has experience and expertise in construction, bidding, and construction scheduling and sequencing issues associated with the Project, as well as cost estimating for the repair of this and similar buildings and sites.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Michael Barclay’s expert testimony.

    Discussion by the Court

    Mike Krismer

    Plaintiff designated Krismer as an expert on water mitigation and water damage, stating that he is expected to testify “regarding the industry standard for inspecting, documenting, moisture mapping, and scoping remediation and repair of water-damaged materials.” He was also designated as an expert regarding the “reasonable and necessary scope of repairs required by the losses in question.”

    Analysis

    First, Defendant argued that under Federal Rule of Evidence 702, Krismer is not qualified as an expert on insurance contract interpretation. Second, Defendant argued that Krismer did not support his opinions regarding the amount and cost of repairs with the necessary underlying facts, data, and verifiable methodology.

    Krismer’s CV lists his qualifications regarding water mitigation and water damage, and Plaintiff proffered Krismer as an expert for that purpose. Despite this, Krismer’s expert report contains opinions about what Defendant should pay under the insurance policy based on his interpretation of the policy’s terms and coverage. Because Krismer is not qualified as an expert on insurance policy application or interpretation, the Court determined that his testimony on that subject is inadmissible.

    Krismer’s report included a publication on how to evaluate electrical equipment exposed to water damage, images that appear to identify roof leaks with labels such as “identified as new” or “identified as old,” and a final report concluding that Cavalry Construction’s work was defective because a list of repairs needs to be completed.

    The report did not explain what methodology, if any, was used in generating these images. It also did not explain what “identified as new” and “identified as old” mean, or what they are new or old in reference to. Specifically, it was unclear whether the reference point for the new/old distinction was a storm that Plaintiff claimed caused the damage or Cavalry Construction’s allegedly defective construction.

    The Court held that Krismer’s testimony is inadmissible because it is vague and not supported by adequate underlying facts, data, or methodology.

    Michael Barclay

    Defendant argued that Barclay’s opinions are supported solely with an estimate of purported repair costs and a repair estimate, which, standing alone, failed to satisfy the requirements of an expert report under Federal Rule of Civil Procedure 26(a)(2)(B).

    Barclay’s report consisted of two-page repair cost estimate, a table of permit fees, and a chart adding contingency fees. However, there was no narrative as to the methodology utilized by Barclay in preparing the estimate and no basis for the total included in the estimates—just various unit prices and line items included in the estimate. Because Barclay’s report did not include the basis for his opinions or the facts and data that were considered, it did not comply with Rule 26(a)(2)(B)(i) and Rule 26(a)(2)(B)(ii).

    Having concluded that Plaintiff did not comply with Rule 26(a)(2)(B) the Court now determines in its discretion whether to strike Barclay’s report and opinions or to impose some lesser sanction, like leave to amend. Here, trial is in less than four weeks, discovery has closed, and Plaintiff has failed to respond to Defendant’s expert challenges after the Court required expedited briefing. As a result, the Court determined that Barclay’s expert testimony is inadmissible and Barclay is precluded from testifying as an expert witness in this matter.

    Held

    The Court granted Defendant’s motions to strike or limit the opinions and testimony of Mike Krismer and Michael Barclay.

    Key Takeaway

    Defendants are correct that Krismer’s report failed to indicate what facts and what methodology or approach underlies the opinions. Reliability considerations such as these are particularly important in a case like this where part of the dispute depends upon whether Defendant used the right methodology to evaluate water damage.

    Case Details:

    Case Caption: O’Reilly Hotel Partners-Champions Circle, LLC V. Allied Property And Casualty Insurance Company
    Docket Number: 4:25cv165
    Court Name: United States District Court, Texas Northern
    Order Date: December 18, 2025
  • Orthopedic Surgery Expert’s Testimony on Physical Injuries Excluded

    Orthopedic Surgery Expert’s Testimony on Physical Injuries Excluded

    The instant matter arises out of a power catamaran scenic and snorkel tour that Plaintiffs Candice Myhre and Norman Davidson, IV boarded on May 14, 2021 from Kikiaola Small Boat Harbor.

    As the vessel began to exit the harbor, it encountered large waves, and Myhre stated that she flew out of her seat, hit her face on the vessel’s railings, and slammed down onto metal seats. As a result, she was transported to Kauai Medical Clinic for medical care and received treatment for physical injuries to her face, knee, and lower leg.

    On June 24, 2025, Plaintiffs disclosed Dr. Derek S. Johnson, D.O. as “Plaintiffs’ medical expert who will testify, including but not limited, to Plaintiff Candice Myhre’s injuries and damages issues.”

    Defendants contended that Johnson’s disclosure was untimely because Plaintiffs failed to disclose him properly as a medical expert.

    Orthopedic Surgery Expert Witness

    Dr. Derek S. Johnson, D.O. is a graduate of the Doctor of Osteopathic Medicine Program at Midwestern University-Glendale Medical School and completed his Orthopaedic Surgery residency at Pinnacle Health System in Harrisburg, PA. He currently serves as the Department Chair of Orthopedic Surgery at Wilcox Medical Center.

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

    Discussion by the Court

    Defendants argued that they would be plainly prejudiced should Johnson be permitted to testify as a retained expert or as a treating physician at trial because the trial is scheduled to commence in less than sixty days and the discovery deadline has expired.

    Plaintiffs, however, contended that Johnson was disclosed on June 24, 2025 as a non-treating medical expert, and his opinions were disclosed on October 9, 2025. There was no failure to identify Johnson as a retained non-treating physician, they argued, because they stated in the initial disclosure that “‘Plaintiffs reserve the right to supplement and/or amend [their] disclosure as necessary and as additional information becomes available through discovery and other means.’” Plaintiffs argued that if there was a failure to disclose, that
    failure was merely harmless under Rule 37(c)(1).

    The key question is: does Rule 26(a)(2)(B)’s written report requirement apply to Johnson’s disclosure as an expert witness? Johnson is not identified as a treating physician; the opinions expressed do not indicate that they were formed during Plaintiff’s treatment; and Plaintiffs state that he was not a treating physician for Myhre. Therefore, Rule 26(a)(2)(B) applies. Plaintiffs thus were required to disclose Johnson as an expert witness and provide an accompanying written report by the expert witness disclosure deadline of June 30, 2025.

    The expert report was not provided by that deadline and, to the extent that Plaintiffs contended that their submission of his report on October 9, 2025 was a supplemental disclosure, this contention fell short of the mark because of Rule 26(a)(2)(B)’s directive that the written report must accompany the expert witness disclosure.

    Analysis

    The Court concluded that the failure to disclose was not harmless and that lesser sanctions are not reasonably available.

    Plaintiffs have not carried their burden of proving harmlessness. Trial is scheduled to be held in two months and discovery has been completed. Johnson’s opinion report is not dated but the request for his opinions is dated February 21, 2025, which is seven months before it was disclosed to Defendants and four months before the expert witness disclosure deadline.

    A lesser sanction could be to require Plaintiffs to pay the costs and attorney’s fees to allow Defendants to take Johnson’s deposition. However, taking Johnson’s deposition and possibly retaining a defense medical expert with sufficient time to allow that expert to review medical records and Johnson’s testimony and having the defense expert prepare a report and have his or her deposition taken takes time; most likely four to six months, which is much more time than the two months before this matter is scheduled for trial.

    While Johnson’s testimony does bear upon Myhre’s claims of physical injuries (more specifically, the cause of her sepsis), there is no indication that her treating physicians are unable to testify regarding the nature and extent of her injuries for which she was treated and that they observed.

    Since Johnson’s opinion testimony has no bearing on liability issues, the Court cannot conclude that excluding Johnson will deal a fatal blow to Plaintiffs’ claims. The Court also cannot conclude that Plaintiffs had an excuse for the late disclosure, such as needing additional time for the expert disclosure, because they did not seek an extension of the deadline from the magistrate judge nor explain the reason for their failure to comply with the Rule 16 deadline.

    Held

    The Court granted Defendants’ motion to strike Derek Johnson, D.O. as an expert witness.

    Key Takeaway

    It should be noted that no explanation is offered as to why it took from February to October to obtain and disclose Johnson’s written opinion report. There is no indication that his report could not have been disclosed by the June 30, 2025 expert disclosure deadline.

    The Court concluded that the non-compliance was not harmless; that there are no lesser sanctions available given the short time before trial; and that the exclusion sanction is warranted and will not result in a fatal blow to Plaintiffs’ claim.

    Case Details:

    Case Caption: Myhre V. Marina LLC
    Docket Number: 1:24cv217
    Court Name: United States District Court, Hawaii
    Order Date: January 14, 2026
  • Valuation Expert Allowed to Opine on Economic Damages

    Valuation Expert Allowed to Opine on Economic Damages

    In this insurance bad faith case, Plaintiff James Won alleged that State Farm unreasonably denied his claim for business property damage and lost profits resulting from a fire that occurred at Won’s Tapioca Express store in Edmonds, Washington on September 11, 2021.

    Won disclosed Michael Jack of Soundpoint as a financial expert but the Defendant sought to exclude Jack’s testimony, alleging that the opinions of Jack that the Plaintiff disclosed before the discovery cutoff on October 5, 2025 “are irrelevant and unhelpful to the jury in this case.” 

    Valuation Expert Witness

    Michael Jack is a Certified Valuation Analyst (CVA). He has an Honors BS in Finance from Indiana University, an MBA from the University of North Carolina and is a graduate of General Electric’s Financial Management Program. 

    He has held leadership roles in finance, operations, technology, program management and product management in start-ups, mid-size fintechs and large financial services firms.

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

    Discussion by the Court

    Initially, Defendant contested only the helpfulness of the opinions of Jack that were disclosed before the discovery cutoff on October 5, 2025.

    On August 06, 2025, Plaintiff disclosed Jack as a financial expert and shared a report from Jack dated July 29, 2025. That report expressed Jack’s opinion concerning the fair market value of Plaintiff’s business as of the date of the fire that precipitated the insurance claim that is at issue in this action. Jack’s report presented the fair market valuation—$501,000—as being offered “for the purposes of a calculation of economic damages.” However, the report did not directly calculate economic damages.

    However, on October 08, three days after the discovery cutoff, Plaintiff produced a second report from Jack. Conceding that the first report “is not a direct calculation of economic damages,” the second report offered a net economic damages calculation of $434,700. A third report from Jack, dated October 20, 2025, offered a calculation of “the total annual lost income to Won incurred from the closure of Northwest Tea Station . . . due to a fire in September 2021.”

    Defendant added that these post-discovery-cutoff opinions should be stricken and are essentially an effort by the Plaintiff to “change the heart of his case without giving State Farm an opportunity to fairly respond.”

    Analysis

    Given the totality of the circumstances, the Court allowed the reports from Jack that were disclosed after the discovery cutoff. Having allowed those reports from Jack, the Court has no doubt that Jack’s analyses, taken together, are helpful. Thus, the Court will deny Defendant’s Daubert motion and Defendant’s motion to strike. However, the Court did not accept Plaintiff’s argument that his post-discovery-cutoff disclosures were timely supplements under Fed. R. Civ. P. 26(e) given that Plaintiff has been aware since at least March 2025 that Defendant had requested a specific, itemized list of Plaintiff’s damages.

    Nor did the Court accept Plaintiff’s argument that his post-discovery-cutoff disclosures were “substantially justified” and “harmless” under Fed. R. Civ. P. 37(c)(1). Therefore, the Court is willing to consider a motion by Defendant for reasonable expenses, including attorney fees, caused by Plaintiff’s failure to timely disclose a damages calculation.

    Held

    The Court denied Defendants’ Daubert motion to exclude the testimony of Michael Jack and strike his untimely expert report.

    Key Takeaway

    While Jack’s analyses are helpful, Plaintiff’s initial disclosures did not provide a “computation of each category of damages” as required by Fed. R. Civ. P. 26(a)(1)(A)(iii), nor did Plaintiff provide the “itemized list of damages” requested by Defendant in Defendant’s discovery requests.

    Case Details:

    Case Caption: Won V. State Farm Fire And Casualty Company
    Docket Number: 2:24cv507
    Court Name: United States District Court for the Western District of Washington
    Order Date: January 07, 2026
  • Nutrition Expert Was Allowed to Opine on the Use of Statutes and Regulations

    Nutrition Expert Was Allowed to Opine on the Use of Statutes and Regulations

    Plaintiffs are the estates of three decedents, Robert W. Petersen (“Mr. Petersen”), Mary Ann Simons, (“Ms. Simons”) and Charlotte Elaine Guilford (“Ms. Guilford”) (collectively, “Plaintiffs”). Plaintiffs were residents of Canyon Creek, an assisted living facility in Billings, Montana specializing in memory care, during the height of the COVID-19 pandemic in 2020. Plaintiffs alleged that Canyon Creek was negligent in the care of Mr. Petersen, Ms. Simons, and Ms. Guilford and that its negligent care caused their deaths.

    One of Plaintiffs’ allegations in this case is that Canyon Creek failed to ensure that Petersen and Simons maintained acceptable parameters of nutrition and hydration as required by state statute and federal regulation.

    Plaintiffs retained Janet McKee, a registered dietician, as their expert on the standard of care regarding how assisted living facilities monitor residents’ nutritional status and needs.

    However, Defendants filed a motion to exclude McKee’s testimony under Federal Rule of Evidence 702, arguing that her opinions exceed the scope of her qualifications, are based on insufficient facts and data, and are not supported by a reliable assessment of the applicable standard of care. Defendants next filed a motion in the alternative to limit McKee’s testimony. They first argued that she lacked the qualifications to offer medical causation opinions or to use statutes or regulations to establish a duty and should therefore be prohibited from proffering such opinions. Second, they argued that any testimony about, reliance upon, or reference to opinions and information first disclosed during McKee’s deposition should be excluded from trial pursuant to Federal Rules of Civil Procedure 26 and 37.

    Nutrition Expert Witness

    Janet Sutton McKee holds a Master of Science in Food, Nutrition, and Institutional Management and a Bachelor of Science in Home Economics Education. She is a registered dietician and nutritionist and holds licenses in nine states.

    Also, she is board certified as a specialist in gerontological nutrition and currently, she is the owner and manager of a nutrition and foodservice consulting company that services healthcare facilities, including acute care, skilled nursing and long-term care, residential psychiatric and behavioral treatment, and assisted living centers throughout the United States.

    Discover more cases with Janet McKee as an expert witness by ordering her comprehensive Expert Witness Profile report.

    Discussion by the Court

    A. Motion to Exclude Testimony of Plaintiffs’ Expert Janet McKee

    1. Qualifications

    McKee has delivered extensive educational programs and presentations nationwide for healthcare associations, industry conventions, and professional groups, covering topics including nutrition’s role in fall prevention, geriatric care, quality assurance, pandemic response, and liability reduction.

    Also, she has developed and taught nutrition courses at the university level and for healthcare professionals. Further, she has conducted and published clinical research and authored/co-authored numerous articles and chapters on clinical nutrition topics, liability risk management, and speciality dietetics.

    In other words, the Court held that McKee’s knowledge, skill, experience, and education are relevant to the opinions she offers regarding Canyon Creek’s dietary standard of care duties.

    2. Reliability

    The Court determined that McKee’s opinions satisfy the preponderance standard for admissibility, albeit marginally. First, McKee’s opinions are based on sufficient facts and data.

    Although McKee did not cite specific documents and conceded that she would have preferred to review additional material, the Court nonetheless acknowledges that her testimony appears grounded in record evidence, as shown by the “thousands of pages” she produced at her deposition.

    Moreover, McKee’s opinions reflected a reliable application of her experience, training, and education to the facts of the case. 

    For example, McKee opined that Canyon Creek failed to weigh Mr. Petersen on admission and that its negligence caused his weight loss, malnutrition, falls, dehydration, and pressure wounds, as well as a decreased quality and length of life. At deposition, however, she acknowledged not knowing when Petersen was admitted, not possessing his pre-admission records, and not being aware of his prior quality of life or whether he had preexisting pressure injuries. Absent this information, Defendants argued that her opinions are unreliable.

    However, McKee did offer opinions relevant to her experience and supported by the record regarding Petersen’s condition and treatment at Canyon Creek.

    Because McKee’s opinions rest on sufficient facts and data and reliably apply her expertise to the facts of this case, the Court denied Defendants’ motion to exclude.

    B. Alternative Motion to Limit Testimony

    1. Causation Opinions and Establishing a Duty

    In the alternative, Defendants next moved to limit, in limine, McKee’s testimony by prohibiting her from offering causation opinions or using statutes or regulations to establish a duty.

    a. Causation Opinions

    Defendants first argued that McKee should be prohibited from opining that Canyon Creek caused Plaintiffs’ medical diagnoses or that Canyon Creek “promoted” Plaintiffs’ medical outcomes.

    Plaintiffs did not intend to elicit a causation opinion from McKee. Therefore, the Court granted the alternative motion to limit testimony as to eliciting causation opinions.

    However, the Court agreed with Plaintiffs that McKee “is uniquely positioned to render an opinion on the risks attendant to poor nutrition.”

    b. Establishing a Duty

    Defendants next argued that McKee cannot use statutes or regulations to evidence a standard of dietary care because she only opined that Canyon Creek violated the cited statutes and regulations, not that the statutes and regulations embodied an applicable standard of care.

    Because McKee failed to identify laws embodying the standard of care, Defendants argued that she is not qualified to determine which statutes and regulations establish a duty applicable to Canyon Creek.

    Based on McKee’s testimony and qualifications discussed above, the Court allowed her to opine on how the regulations and statutes she identified inform the standard of care and create a duty in this case. Plaintiffs did not intend to elicit ultimate issue opinions from McKee.

    The Court denied the alternative motion to limit testimony as to McKee’s use of statutes and regulations to identify a standard of care and establish a duty.

    2. Federal Rules of Civil Procedure 26 and 37

    a. Rule 26

    The Court found that McKee introduced new opinions in her Violations Report and throughout her deposition that were neither adequately disclosed nor supplemented by Plaintiffs.

    After reviewing McKee’s Initial Report alongside her Violations Report, the Court found that though the documents are fundamentally aligned, they differ in breadth and scope, in their regulatory and legal framing, and in their identification of infection control and systemic failures.

    Disclosures by experts are not living documents that can be added to on a continuing basis. If the Court were to treat McKee’s disclosures in this fashion, then “the full disclosure requirement implicit in Rule 26 … would interfere with the Court’s ability to set case management deadlines, because new reports and opinions would warrant further consultation with one’s own expert and virtually require new rounds of depositions.”

    In addition to improper disclosure, Plaintiffs failed to adequately supplement McKee’s Initial Report under Rule 26(e). It is obvious that the additional material McKee relied on and the new opinions she formed after her disclosure far exceed the scope of Rule 26(e), that is—”correcting inaccuracies or filling the interstices of an incomplete report.”

    Accordingly, Plaintiffs violated Rule 26 when they failed to adequately disclose or supplement McKee’s Initial Report with the numerous new opinions from her Violations Report and the detailed analysis she provided at her deposition.

    b. Rule 37

    The Court found that the late disclosure was neither substantially justified nor harmless. Initially, the late disclosure deprived Defendants of a meaningful opportunity to prepare for, examine, and respond to McKee’s new opinions at her deposition. True, Plaintiffs complied with Defendants’ subpoena. However, had Defendants not subpoenaed McKee, they may not have learned about the new materials she relied on or her new opinions until trial. Plaintiffs offer no reason why the additional materials or new opinions were not properly supplemented under Rule 26(e) before McKee’s deposition, and therefore, the late disclosure was not justified.

    The Court next rejected Plaintiffs’ contention that the late disclosure was harmless because Defendants violated the parties’ agreement not to produce expert notes.

    McKee’s “notes” advanced her opinions far beyond the scope of her summary analysis in her Initial Report. And even though Defendants have known the totality of McKee’s opinions for over a year, it was Plaintiffs’ duty to adequately disclose and supplement under Rule 26.

    Here, the Court ultimately concluded that the risk of any prejudice to Defendants at trial is mitigated by two factors. First, despite Plaintiffs’ procedural infraction, Defendants have had adequate time to prepare for trial since they learned of McKee’s late disclosure 15 months ago. Second, expert testimony is an essential component to litigating the parties’ case; as such, there are less drastic sanctions available than striking portions of McKee’s opinions that would promote a fair trial. The jury should be allowed to weigh the entirety of Plaintiffs’ experts’ opinions.

    Therefore, the Court elects to impose the lesser sanction of allowing Plaintiffs to file McKee’s supplemental expert report and allowing Defendants to reopen McKee’s deposition.

    Held

    (1) The Court denied the Defendants’ motion to exclude the testimony of Plaintiffs’ expert Janet McKee.

    (2) The Court granted in part and denied in part the Defendants’ alternative motion to limit testimony.

    Key Takeaway

    Although certain aspects of McKee’s testimony may lack foundation in pre-admission records or prior medical history, her analysis of Canyon Creek’s care practices are nonetheless grounded in her professional experience and supported by the record. Therefore, her opinions are reliable.

    Please refer to the blogs previously published about this case:

    Palliative Care Expert’s New and Expanded Opinions on Facility Neglect Admitted

    Economics Expert Was Allowed to Opine on Assisted Living Facility Administration Issues

    Case Details:

    Case Caption: Estate Of Robert W. Petersen Et Al V. Koelsch Senior Communities LLC
    Docket Number: 1:22cv11
    Court Name: United States District Court, Montana
    Order Date: December 12, 2025
  • Economics Expert’s Updated Damages Calculations Admitted

    Economics Expert’s Updated Damages Calculations Admitted

    Plaintiff Misty Blanchette Porter was previously employed as a physician in the Reproductive Endocrinology and Infertility (“REI”) Division within Dartmouth Health’s Department of Obstetrics and Gynecology (“OB/GYN”).

    After Dartmouth Health made the decision to shut down the REI Division entirely and to terminate all three physicians employed therein—including Porter—Porter filed suit against Dartmouth Health citing disability discrimination.

    Dartmouth Health argued that the testimony of Porter’s damages expert, Dr. Robert L. Bancroft, should have been excluded due to untimely disclosure under Rule 26.

    Economics Expert Witness

    Robert L. Bancroft holds a bachelor’s degree in economics from the University of Vermont (“UVM”); a Master of Science in agricultural economics from UVM; and a Ph.D. in agricultural economics from Purdue University.

    From June 1979 until August 1981, Bancroft worked for the United States Department of Agriculture to develop an econometric forecasting model to forecast farmers’ participation in certain government programs and to provide testimony and research to the U.S. House of Representatives. Next, Bancroft began work as an assistant professor in the Department of Agriculture and Resource Economics—later renamed the Department of Community Development and Applied Economics—at the University of Vermont in August 1981. Bancroft continued as an assistant professor of economics until 1991, when he became an adjunct professor. He worked as an adjunct professor of economics until 1996.

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

    Discussion by the Court

    Rule 26

    Dartmouth Health contended that the Court erred by admitting testimony and exhibits offered by Porter’s expert damages witness, Bancroft, because Porter failed to timely disclose several of his expert opinions under Rule 26.

    The Court found that the timing of the disclosure of Bancroft’s March 19, 2025, supplemental report did not warrant a new trial. The March 2025 supplemental report was a direct response to defense counsel’s cross-examination of Bancroft at a hearing on Dartmouth Health’s motion to exclude Bancroft from testifying as an expert witness at trial.

    Cross-examination elicited that Bancroft was unaware of certain information relevant to his calculations. Bancroft subsequently updated his report on March 19 to incorporate this new information. Dartmouth Health plainly knew this information before Bancroft issued his March 19 report, as defense counsel raised the issue at the evidentiary hearing. 

    Moreover, Bancroft did not change the substance of his opinion. He used the same methodology in his March supplemental report as in his prior reports, changing only the inputs to produce updated damages calculations.

    The Court did not share Defendants’ view that Bancroft issued his corrective March 2025 report because his testimony at the March 12 evidentiary hearing revealed that his August 2024 report “had not included key facts and assumptions . . . such as Porter’s promotion to full professor in July 2023 and her most recent earnings from UVMMC at a higher rate of pay than what Bancroft had projected.”

    Rule 37

    Even if the disclosures were untimely, admitting Bancroft’s testimony was not error because the disclosures were substantially justified or harmless under Rule 37.

    The first factor—the willfulness of the non-compliance regarding the March 2025 report and the reason for the noncompliance—did not weigh definitively in either party’s favor. Porter knew well before March 2025 that she had received a $7,698 tuition credit for her son’s undergraduate education at UVM in 2019, and Bancroft could have included that information in his August 2024 report. On the other hand, Dartmouth Health knew that it had approved salary freezes in 2020 and 2021, and Dartmouth Health did not allege that Porter or Porter’s expert had that information until March 2025.

    The efficacy of lesser sanctions and the possibility of a continuance weigh against excluding Bancroft’s testimony. Dartmouth Health’s proposed alternative—introducing its own expert witness to rebut Bancroft’s supplemental report—was simply not feasible only four days before a three-week trial.

    The duration of noncompliance factor was inconclusive. Although Porter was aware of some information that impacted her expert’s damages calculations well in advance of the March 2025 report, other information was only in the possession, custody, or control of Dartmouth Health until the March evidentiary hearing. Bancroft submitted his updated report one week after the evidentiary hearing.

    The Court is unaware of any previous warning to Porter that an untimely supplemental expert report could result in exclusion of the expert witness.

    Moreover, Dartmouth Health already had a significant amount of the updated information Bancroft relied on for his March 2025 supplemental report. It is difficult to conceive how admitting the March 2025 report, or Bancroft’s testimony consistent with that report, prejudiced Dartmouth Health given that the report estimated substantially lower damages figures than any of Bancroft’s previous reports.

    Held

    The Court held that the relevant factors weighed against excluding Robert Bancroft’s testimony.

    Key Takeaway:

    Without Bancroft’s testimony, Porter would have been severely disadvantaged in quantifying her claimed economic damages. Such a sanction would have been disproportionate to the alleged noncompliance given that the late disclosure had a reasonable basis; Bancroft’s methodology did not change from one report to the next, and Bancroft’s final report substantially reduced Porter’s estimated damages.

    Case Details:

    Case Caption: Blanchette Porter V. Dartmouth Hitchcock Medical Center
    Docket Number: 2:17cv194
    Court Name: United States District Court, Vermont
    Order Date: November 26, 2025
  • Expert Testimony on the Functions of a County Attorney Admitted

    Expert Testimony on the Functions of a County Attorney Admitted

    Defendant Howard Keith Hall is the former County Attorney of Pike County, Kentucky. Hall is a current Pike County Circuit Court Judge. The United States charged Hall with two counts of mail fraud and one count of theft of government funds. The charges stem from an alleged scheme in which Hall hired Attorney A1 as an Assistant County Attorney and paid this attorney approximately $440,587 in state salary and benefits despite the attorney performing little to no work for the Pike County Attorney’s Office (“PCAO”).

    While Attorney A served as an Assistant County Attorney, Hall participated in the private practice of law at Attorney A’s law firm and received various payments described as “Distributions” totaling $505,900. The United States alleged that Hall committed mail fraud by signing and mailing false payroll certifications indicating that Attorney A fulfilled his duties as a part time assistant county attorney despite doing no work.

    The United States filed this motion to exclude in response to Hall’s disclosure noticing Harold Mac Johns, the former County Attorney of Todd County. Hall’s disclosure anticipated that Johns will testify and offer opinions on several topics, including the various responsibilities of a county attorney’s office; the full-time and part-time system used in Kentucky for county attorney offices; the statutory duties of an assistant county attorney; the ability of county attorneys and assistant county attorneys to participate in the private practice of law; the private relationship between Hall and Attorney A; the particular allegations of the Indictment; and other topics or issues that may arise from the government’s case-in-chief.

    United States filed a Daubert motion to exclude the testimony of Harold Mac Johns.

    Law and Legal Expert Witness

    Harold Mac Johns served as the Todd County Attorney for 28 years from January 1990 until September 2018. He served on the Prosecutors Advisory Council for seven years from 1997 until 2004.

    Want to know more about the challenges Harold Mac Johns has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    The United States raised four arguments in support of its motion to exclude the testimony of Johns. First, the government charged that the Court should exclude Johns’ testimony as untimely. Second, that the Court should exclude Johns’ testimony for making inadequate disclosures. Third, that Johns’ testimony does not meet any provision of Rule 702. Fourth, that Johns’ testimony invaded the province of the Court and jury. Indirectly, the government also argued that Johns did not meet the definition of a lay opinion witness under Fed. R. Evid. 701.

    The United States argued that the Court should exclude the noticed expert testimony because it is (1) untimely and because (2) the notice failed to state what Johns’ opinion will be on several of the subjects.

    Late Notice

    Hall’s initial appearance and arraignment took place on May 16, 2025, before Magistrate Judge Matthew A. Stinnett. Per the Court’s order, Hall should have provided the government with notice of expert testimony on or before May 26, 2025. This Court continued Hall’s trial to November 10, 2025, after holding a telephonic scheduling question with counsel for Hall and the United States. Hall produced the disclosure noticing Johns on October 14, 2025, roughly one month before the start of the jury trial on November 07, 2025.

    Basically, Hall submitted this disclosure several weeks before the start of trial, giving the United States ample notice of an anticipated witness. Hall did not submit this witness in an effort to throw sand into the gears of the judicial process, but to provide context and testimony about the inner workings of a county attorney’s office, an issue that cuts to the heart of the case. The Court does not find that Hall acted in bad faith, and the reasons for the delay appear to be related to the case’s complexity and the accompanying number of motions filings, hearings, and orders. Nor is the Court convinced that the late notice of this witness prejudices the government.

    The government has had time to raise its motion to exclude with this Court. None of Johns’ proposed testimony raises novel issues or arguments that the government is unfamiliar with as it pertains to Hall’s defense. This is particularly true where any prejudice to the government can be cured with a less severe course of action.

    Inadequate Disclosures

    The Court turned next to the government’s second procedural argument: that Johns’ testimony should be excluded for inadequate disclosures.

    Hall’s disclosure included Johns’ qualifications as the Todd County Attorney, a member of the Prosecutors Advisory Council, and as a private practitioner. The disclosure listed several topics, but the government argued that “the disclosure failed to address what Johns’ opinion would be on several of the subjects noticed.” Several of the topics did not include an opinion statement. Thus, the Court faces a situation where Hall has included opinion statements as to some topics but has not provided opinion statements for others.

    The Court is not convinced that the deficiencies require the exclusion of Johns’ entire testimony. The government has not claimed in its motion that the lack of detail affects their ability to counter the evidence. Excluding the witness is not the only remedy available to the Court since the government is not burdened by an “undue surprise” that prevents their “adequate opportunity to prepare” to prepare for trial.

    The Court may appropriately set boundaries on Johns’ admissible testimony and issue other orders that are “just under the circumstances.”

    Rule 702

    Hall submitted that Johns can provide testimony about how an elected county attorney runs their office and the functions of the county attorneys in general.

    The government argued that “the number of years someone has served as a county attorney does not translate to facts or data that this Court can evaluate for reliability under Rule 702 or Daubert.”

    However, the Court was convinced that Johns’ 28 years as a county prosecutor and seven years as part of the Prosecutors Advisory Council support the reliability determination that he is qualified to opine on the ways in which a Kentucky county attorney runs their office.

    Moreover, Johns’ testimony would assist the jury in understanding the inner workings of a county attorney’s office, the procedures by which county attorneys hire staff, and the ways in which the individual attorney’s offices work with the Prosecutors Advisory Council and other offices within the Commonwealth’s state government.

    Legal Conclusions

    Johns can testify as to the statutory duties of an assistant county attorney but under no circumstances could Johns offer an opinion as to whether Hall’s actions were legal or sanctioned under the laws of the Commonwealth of Kentucky.

    Johns similarly cannot testify as to whether there are or are not legal requirements for assistant county attorneys to work a minimum number of hours. He cannot testify to Hall’s willfulness to commit any act or that Hall did or did not have the requisite intent to defraud.

    Plainly, the Court held that much of Johns’ proposed testimony violated the prohibition against a witness testifying about legal requirements or interpretations of statute. By way of example, Johns can testify to the day-to-day operations of a county attorney’s office. Johns can testify that it is common to hire assistant county attorneys and describe how that process works. But Johns cannot testify that Hall’s acts were legal or sanctioned by Johns’ own interpretation of Kentucky’s statutes. This is not an exhaustive analysis of what Johns may or may not say on the witness stand. But this much is clear — any testimony suggesting that Hall’s actions were legal or appropriate under the laws of the Commonwealth or that the interpretation of the statutes requires a certain outcome is inadmissible.

    The bulk of Johns’ testimony as to the functions of a county attorney’s office will fall under Rule 702 because Johns never served in the Pike County Attorney’s office. Moreover, it is not clear from the record before the Court that Johns was ever personally involved in any of the facts at issue in this case.

    Held

    The Court granted in part and denied in part the United States’ motion to exclude the testimony of Harold Mac Johns.

    Key Takeaway:

    Johns’ extensive experience as a county prosecutor and his personal knowledge as to the responsibilities, duties, and discretion of a county attorney meet both the reliability and relevance elements required by Rule 702.

    Case Details:

    Case Caption: USA V. Hall
    Docket Number: 3:25cr5
    Court Name: United States District Court, Kentucky Eastern
    Order Date: November 06, 2025
  • Social Work Expert’s Litigation-Driven Opinions Excluded

    Social Work Expert’s Litigation-Driven Opinions Excluded

    Plaintiff Mary Spates (“Plaintiff”) as parent and natural guardian of her minor son, C.M., filed a suit against Defendant Horry County School District (“Defendant” or “School District”), alleging violations of C.M.’s Fourteenth Amendment due process rights.

    Defendant Horry County School District filed a motion in limine seeking to exclude or limit the testimony of Plaintiff’s treating mental health providers, Jessica Greene, LPC, and Jameion Blanton Fowler, MSW, LISW-CP, as well as a written report authored by Fowler.

    Psychology Expert Witness

    Jessica Greene, LPC holds a PhD in General Psychology from Northcentral University (2020), a master’s degree in Counseling with an emphasis in clinical mental health counseling (2006), and a Bachelor of Arts degree in Sociology from Coastal Carolina University (2003).

    She is known for her passion in advocating for her clients and fighting to educate about trauma-informed and cognitive behavioral therapy treatment.

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

    Social Work Expert Witness

    Jameion Blanton Fowler, MSW, LISW-CP (SC), LCSW (NC) is currently working as an Independently Licensed Social Work Clinician with A Place To Start Counseling. He is also the founder of Blanton Clinical Consulting Group (BCCG).

    He has worked with a variety of different populations throughout his career. These include Mental Health, Substance Abuse and work with Children and families.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Jameion Fowler’s expert testimony.

    Discussion by the Court

    Defendant argued that Plaintiff failed to designate these witnesses as experts under Rule 26(a)(2), failed to provide the required disclosures under the Court’s scheduling orders, and now seeks to introduce opinions on diagnosis and causation that qualify as expert testimony.

    The Court recognized that Rule 26 distinguishes between retained experts, who must provide a written report under Rule 26(a)(2)(B), and treating providers, who may testify as hybrid fact/expert witnesses without such a report. 

    Motion to Exclude or Limit

    Here, Plaintiff did not timely disclose Greene or Fowler under Rule 26(a)(2). Her initial interrogatory responses confirmed no experts would be offered, and only on the final day of discovery in April 2024 did Plaintiff identify these providers and produce Fowler’s report. Such a late disclosure deprived Defendant of the opportunity to depose the providers or prepare rebuttal expert testimony before the close of discovery. The absence of a Rule 26(a)(2)(C) summary compounds this deficiency.

    Allowing the evidence would disrupt the trial, requiring the Court to reopen discovery and delay a consolidated trial already scheduled. While the Court acknowledges the importance of treating providers’ testimony to Plaintiff’s claims, Rule 26 and Rule 37 require balancing that importance against fairness to the opposing party. Finally, Plaintiff offered no persuasive explanation for her failure to comply with the disclosure deadlines. On balance, these factors show that exclusion is warranted under Rule 37(c)(1).

    At the same time, it is undisputed that Greene and Fowler are treating providers. Courts have permitted treating providers to testify about observations and diagnoses made during treatment, even absent a Rule 26(a)(2)(B) report. But they may not provide litigation-driven causation opinions prepared for trial. Fowler’s December 2023 report does just that-it expressly attributed C.M.’s depression to his “current legal situation and the family’s case against his former school district.” That opinion fell within Rule 702 and requires proper disclosure.

    Plaintiff’s non-disclosure also meant that Greene’s and Fowler’s proposed opinions have never been scrutinized under the Court’s gatekeeping function pursuant to Federal Rule of Evidence 702 and the Daubert standard.

    Held

    The Court granted in part and denied in part the Defendant Horry County School District’s motion in limine to exclude or limit the testimony of Plaintiff’s treating mental health providers, Jessica Greene, LPC, and Jameion Blanton Fowler, MSW, LISW-CP.

    Plaintiff’s treating providers, Jessica Greene, LPC, and Jameion Fowler, MSW, LISW-CP, may testify as fact witnesses regarding their treatment of C.M., including observations and diagnoses formed in the ordinary course of care. However, because Plaintiff failed to comply with Rule 26(a)(2) and has not shown substantial justification or harmlessness under Rule 37(c)(1), the providers may not offer undisclosed expert opinions on the causation of C.M.’s conditions or on the adequacy of the School District’s conduct. For the same reasons, Plaintiff may not introduce the December 16, 2023, written report by Fowler, which constitutes litigation-driven expert opinion.

    The Court also noted that Plaintiff’s proffered opinions have not undergone the reliability screening required by Federal Rule of Evidence 702 and Daubert, further supporting their exclusion.

    Key Takeaway:

    Treating providers are often assumed to fall outside Rule 26’s disclosure requirements because they are not retained experts. But Rule 26(a)(2)(C) expressly requires a summary disclosure when a treating provider’s testimony implicates Rules 702-705. Counsel who conflate treatment testimony with litigation-driven expert opinions risk exclusion under Rule 37(c)(1).

    Case Details:

    Case Caption: Spates V. Horry County School District
    Docket Number: 4:21cv3634
    Court Name: United States District Court, South Carolina
    Order Date: September 22, 2025
  • Safety Expert’s Testimony on Loading Practices Admitted

    Safety Expert’s Testimony on Loading Practices Admitted

    Marco Antonio Rodriguez and his wife, Rosanna Rodriguez, sued Americold Logistics, LLC and Frez-N-Stor, Inc. seeking damages for injuries he suffered while working at Americold’s facility in La Porte, Texas. 

    In March 2023, Rodriguez was instructed to remove pallets of frozen chicken from a railcar. He alleged that when he entered the car, hundreds of pounds of frozen chicken tipped over onto him, severely injuring his spinal cord and resulting in paralysis. He sued Americold for negligence in failing to ensure that the frozen chicken pallets had not shifted during the rail transit before starting to unload them. He also sued Frez-N-Stor, the company responsible for moving the frozen chicken parts from Arkansas to Houston, alleging improper packaging and packing of the frozen chicken pallets.

    Frez-N-Stor filed a motion to exclude the Plaintiffs’ expert, Stephen Legge, who will opine that Frez-N-Stor failed to package the pallets in the railcar consistent with the industry standards of care and that Frez-N-Stor’s failure to do so caused Rodriguez’s injuries. 

    Safety Expert Witness

    Stephen W. Legge is the Managing Director at Safety Mitigation Specialist, Inc., a consulting firm that specializes in health-and-safety requirements, including railway load securement. He also serves as a Safety and Security Consultant at Gannett Fleming, an architecture, engineering, and construction firm.

    He provides consulting and training services on matters relating to railway transportation security and safety, including compliance with safety and security standards set by the Federal Transit Administration, the Federal Railroad Administration, and the Association of American Railroads.

    During his career, Legge has accumulated myriad certifications concerning rail-transportation safety, including from programs affiliated with the U.S. Department of Transportation. He also chaired the subcommittee at the Association of American Railroads that is responsible for promulgating and approving safety standards about the safe loading of goods in railcars. 

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

    Discussion by the Court

    Qualifications

    Frez-N-Stor argued that Legge has no specialized education or training that would qualify him to discuss the physics-or engineering-related aspects of the load shift that he opined were present when the pallets tipped and fell. Frez-N-Stor added that Legge is not qualified to criticize its expert, Christopher Bonanti, because Bonanti bases his opinions on physics and engineering principles about which Legge has no relevant expertise. 

    Although Legge may or may not have the academic background to testify to the mathematical concepts behind load shifts in railcars, the Court held that he can certainly testify, based on his many years of experience and his expertise, about the reasons load shifts occur. He has certainly “seen a lot more [load shifts] than the jurors have.” Legge has worked in the railroad industry for 35 years, chaired the subcommittee of the Association of American Railroads that established standards about how to load safely goods onto railcars, trained individuals on how to comply with these standards, and investigated for railroads incidents of improper loading of goods onto railcars.

    Beyond this on-the-job experience, numerous agencies and organizations governing railroad safety have accredited or certified Legge. Therefore, Legge is qualified to testify to the relevant standards of care that apply to safely loading goods on railcars, as well as to the accidents that may occur as a result of failing to adhere to those standards.

    The Court held that Frez-N-Stor’s argument that Legge cannot rebut Bonanti’s opinions because Bonanti approached the issues from the perspective of physics and engineering is also unpersuasive. Legge may not be able to rebut directly Bonanti’s engineering-and physic-based opinions or calculations; he does not appear qualified to do so. But Legge may still rely on his own experience and expertise to highlight errors in how Bonanti approached the issues.

    Relevancy and Reliability

    Frez-N-Stor next attacked the relevance and reliability of Legge’s opinions. First, Frez-N-Stor argued that Legge’s opinions amount to conclusory, ipse dixit statements because they are not based on scientific studies or an accident reconstruction. Second, Frez-N-Stor argued that Legge’s opinions are unreliable because he failed to consider and rule out alternative causes of the accident. Third, Frez-N-Stor argued that Legge’s opinions are unreliable because they are based on the Association’s recommendations, which are not the industry standard and which do not cover the hazard at issue. 

    Ipse-Dixit Opinions

    Frez-N-Stor argued that Legge’s opinions are mere ipse dixits that lack an adequate foundation. Legge opined that Frez-N-Stor failed to comply with the Association’s guidelines, resulting in 25 to 26 inches of void space in a 64-foot railcar that enabled the pallets to shift and fall on Rodriguez. Frez-N-Stor contended that this opinion lacks proper support because Legge did not do an accident reconstruction to analyze the forces applied to the railcar, did not run mathematical calculations, and did not perform fault-tree or root-cause analyses.

    However, Legge reviewed the extensive record in the case. Legge then connected his experience, the Association’s warnings about the need to use proper fillings, airbags, or other dunnage when packing loads in railcars, and the testing that led the Association to adopt standards for the steps needed to safely pack loads in railcars for transit.

    Frez-N-Stor responded that Legge overstated his opinions, implying certain causation when the Association’s standards express only the possibility of a load shift occurring because of excess void space in a railcar. 

    The Court found this response unpersuasive for two reasons. First, although the Association’s standards address only the probability of a load shift occurring if the railcar is not packed consistent with the standards, Legge can rely on his experience to testify that a load shift had occurred in every similar case he investigated. Second, even if Frez-N-Stor is correct that Legge is overstating his conclusions, overstatement does not warrant the complete exclusion of Legge’s testimony. 

    Alternative Causes

    Frez-N-Stor next contended that Legge did not consider: (1) whether the railcar experienced turbulence that would have shifted the pallets of frozen chicken even if Frez-N-Stor loaded them in compliance with the Association’s standards; or (2) whether the accident occurred because of Americold’s negligence in unloading the pallets.

    Frez-N-Stor highlighted that Legge previously used fault-tree or root-cause analyses to investigate accidents but admitted he did not do so here. Because of these omissions, Frez-N-Stor argued that Legge offered an improper res ipsa loquitur opinion that cannot establish liability. 

    First of all, the Court held that Legge’s failure to rule out possible alternative causes does not make his opinions unreliable. Legge is “entitled to assume” the “underlying fact” that no overly excessive force occurred during the rail transit, or that Americold was not negligent in a way that contributed to cause the accident, and a jury may give Legge’s opinions less or no weight if it believes either fact to be false. Basically, Frez-N-Stor’s alleged alternative causes did not provide a basis for excluding Legge’s opinions. 

    Moreover, there is insufficient evidence in the record establishing Frez-N-Stor’s alleged alternative causes to warrant excluding Legge’s opinions. No evidence creates a sufficiently compelling link between some excessive-force event and the falling pallets to warrant excluding Legge’s opinions. Frez-N-Stor also has not proffered enough evidence of Americold’s negligence to warrant excluding Legge’s opinions.  

    Finally, the Court ruled that Legge’s failure to conduct a root-cause or fault-tree analysis is not fatal to the reliability of his opinions. 

    The Association of American Railroads Standards

    Frez-N-Stor argued that Legge cannot testify that the Association’s guidelines are the industry standards. However, the Court held that Legge can reliably opine that the Association’s guidelines reflect the industry’s standard of care. Additional evidence in the record supports Legge’s testimony. Mike Dickmeyer, Union Pacific’s corporate representative, testified that the Association sets the industry’s safety guidelines and that they are used as the industry standard.

    When Frez-N-Stor responded that Legge’s reliance on Union Pacific’s Terms and Conditions transforms his expert testimony into impermissible legal arguments about contract interpretation, the Court held that Legge is not offering inappropriate legal conclusions by identifying references in record evidence to the guidelines that he argues are the industry standard. The Terms and Conditions provide “affirmative evidentiary support” of industry “customs.” 

    Frez-N-Stor also argued that Union Pacific’s Terms and Conditions undermine Legge’s testimony because the contract refers to the Association’s “rules”—which require a high standard for approval and on which Legge does not rely—as opposed to the Association’s “guidelines”—which have a looser standard of approval and on which Legge relies. However, these arguments do not warrant excluding Legge’s opinions. Legge testified in his deposition that the difference between “rules,” as used in the Union Pacific contract, or “guidelines” or “industry-setting standards” is irrelevant: the point is that the Association promulgates—whether as “rules” or as “guidelines”—concrete safety recommendations based on field testing.

    Frez-N-Stor argued that the Association’s standards are irrelevant because they do not address unloading and because they are focused on avoiding freight damage, not worker safety. These arguments are, however, not a basis for excluding Legge’s opinions. First, Legge did not apply the Association’s standards to how workers unloaded the railcar. Second, the Association’s standards did address worker safety. 

    Failure To Timely Supplement

    Frez-N-Stor finally argued that Legge untimely disclosed his supplemental report because he released it six months past the expert designation deadline.

    Legge issued his initial report on November 15, 2024 and completed his supplemental report on March 27, 2025. It appeared that the Plaintiffs did not produce Legge’s supplemental report until June 10, 2025. This timeline suggested that the Plaintiffs failed to serve Legge’s supplemental report until the day of his deposition despite having it prepared well before then. 

    Under Rule 26, Rodriguez timely supplemented Legge’s opinions. In addition, the Court’s scheduling order set the relevant pretrial-disclosure deadline as September 23, 2025.  The deadline for filing the Joint Pretrial Order was initially July 25, 2025, but the Court extended it to September 23, 2025, on Frez-N-Stor’s motion for continuance. Under all relevant deadlines, Legge timely supplemented his disclosures.

    Finally, Frez-N-Stor did not show prejudice. If Frez-N-Stor felt it could not properly cross-examine Legge on the opinions in his supplemental report during his deposition, it could have sought to continue Legge’s deposition to another date or raise with the Court the need for an additional deposition on that supplemental report. Frez-N-Stor did not request either.

    Held

    The Court denied Frez-N-Stor’s motion to exclude Stephen W. Legge’s opinions and testimony.

    Key Takeaways:

    • Legge can reliably opine that the Association’s guidelines reflect the industry’s standard of care. An expert’s experience and qualifications can support his or her identification of industry standards.
    • Legge’s failure to conduct a root-cause or fault-tree analysis is not fatal to the reliability of his opinions. Daubert requires that experts use reliable, rather than optimal or flawless, methodology.

    Case Details:

    Case Caption: Rodriguez, Et Al. V. Frez-N-Stor, Inc. Et Al
    Docket Number: 4:23cv3944
    Court Name: United States District Court, Texas Southern
    Order Date: September 05, 2025