Expert Witness Profiler

Tag: Disclosure

  • Untimely Disclosure of Neurosurgery Expert Permitted in Damages-Only Case

    Untimely Disclosure of Neurosurgery Expert Permitted in Damages-Only Case

    Plaintiff, Pearl R. Kline was driving her vehicle eastbound on Interstate 70, near the Clear Springs exit in Washington County, Maryland. At the same time, a vehicle owned by Defendant Road Range Express and operated by Defendant Sukhjinder Singh was traveling directly behind Plaintiff’s vehicle. When Plaintiff stopped for traffic, Singh’s vehicle struck the rear of her vehicle. This incident led Plaintiff to file a negligence action against Road Range Express and Singh.

    On June 19, 2025, Defendants filed a motion to strike Plaintiff’s Rule 26(a)(2) disclosure of Dr. Ira M. Garonzik. In their motion, Defendants argued that Plaintiff’s Rule 26(a)(2) expert disclosure should be stricken because it is (1) untimely and (2) insufficient, in violation of Rule 26(a)(2) of the Federal Rules of Civil Procedure. 

    Neurosurgery Expert Witness

    Dr. Ira M. Garonzik is the founder and president of the Baltimore Neurosurgery and Spine Center which began in 2005. The Baltimore Neurosurgery and Spine Center specializes in the comprehensive treatment of a wide variety of intracranial and spinal disorders. Garonzik is widely published, having authored more than fifty peer reviewed articles, book chapters and abstracts.

    He completed his neurosurgical residency at the Johns Hopkins Hospital after earning his medical degree from the Emory University School of Medicine Summa Cum Laude and his undergraduate degree with highest honors from Johns Hopkins University. During his training, Garonzik completed specialized fellowships in complex spinal surgery and functional neurosurgery.

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

    Discussion by the Court

    Defendants argued that they would be severely prejudiced if the Court were to permit the untimely disclosure of Plaintiff’s expert because discovery had closed and the deadlines for their own disclosures had elapsed, leaving them with no opportunity to rebut or respond to Garonzik’s opinions.

    Plaintiff’s disclosure included the expert’s curriculum vitae and fee schedule, but omitted the expert’s report and did not otherwise summarize the expert’s opinions. There is no dispute that Plaintiff’s disclosure of Garonzik was untimely. And because the disclosure lacked the required written report when Plaintiff served it on Defendants, it was plainly insufficient.

    There is no dispute that Plaintiff’s disclosure of Garonzik was untimely. And because the disclosure lacked the required written report when Plaintiff served it on Defendants, it was plainly insufficient under Rule 26(a)(2) of the Federal Rules of Civil Procedure. Moreover, as Plaintiff’s own opposition admitted, the untimely disclosure was not substantially justified. Consequently, the real inquiry is whether the error was harmless.

    In determining whether a party’s failure to disclose was substantially justified or harmless so as to exclude a witness pursuant to Rule 37(c)(1), this Court has broad discretion and is guided by consideration of five factors: “(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the non-disclosing party’s explanation for its failure to disclose the evidence.” 

    Analysis

    The first factor, surprise, weighed in Defendants’ favor, as the disclosure came more than two months after the disclosure deadline and without advance notice.

    The second factor—the ability to cure—cuts both ways. Because the discovery period has closed, Defendants’ ability to identify a rebuttal expert is limited. However, reopening discovery for the narrow purpose of allowing Defendants to serve their own expert disclosures provides an adequate cure. Indeed, there are several cases in this District that have permitted limited extensions of discovery to mitigate the prejudice from untimely expert disclosures. 

    The third factor, disruption of trial, did not weigh heavily against Plaintiff, as no trial date has been set, and a modest extension of expert discovery will not substantially disrupt proceedings. The fourth factor, the importance of the evidence, strongly favored Plaintiff, as Garonzik is Plaintiff’s sole expert on damages, which is the only remaining issue in this case. Finally, the fifth factor, the explanation for the delay, weighed against Plaintiff, as no justification has been provided for failing to comply with the Scheduling Order.

    Given the broad discretion afforded to district courts in weighing these factors and fashioning appropriate sanctions, the Court will treat Plaintiff’s disclosure of Garonzik as an untimely Rule 26(a)(2) disclosure that can be rendered harmless by modifying deadlines in the Scheduling Order. 

    Held

    The Court denied the Defendants’ motion to strike Plaintiff’s Rule 26(a)(2) disclosure of Dr. Ira M. Garonzik.

    Key Takeaway:

    On balance, although Plaintiff’s disclosure was untimely, insufficient, and unjustified, precluding Plaintiff’s expert from testifying altogether in this damages-only case would be an extreme result. 

    The Court can adequately minimize the prejudice to Defendants through a limited reopening of expert discovery. The Court will re-open discovery for a 45-day period for the sole purpose of allowing Defendants to conduct discovery related to Garonzik’s report (including a deposition of Garonzik) and to designate rebuttal witnesses.

    Case Details:

    Case Caption: Kline V. Singh Et Al
    Docket Number: 1:25cv63
    Court Name: United States District Court, Maryland
    Order Date: August 28, 2025
  • Legal Expert Allowed to Testify Despite His Lack of Particularized Expertise

    Legal Expert Allowed to Testify Despite His Lack of Particularized Expertise

    The Federal Trade Commission contended that Amazon tricked, coerced, and manipulated consumers into subscribing to Amazon Prime. According to the FTC, this was accomplished by failing to disclose the material terms of the subscription clearly and conspicuously and by failing to obtain the consumers’ informed consent before enrolling them. The FTC also alleged that Amazon did not provide simple mechanisms for subscribers to cancel their Prime memberships. The FTC sued Amazon.com, Inc. and three of the company’s executives, Neil Lindsay, Russell Grandinetti, and Jamil Ghani.

    Defendants’ expert James C. Cooper offered opinions on two issues: (1) What a reasonable market participant would have expected, prior to March 2021, was required to comply with Restore Online Shoppers’ Confidence Act (“ROSCA”); and (2) The extent to which the FTC’s allegations in this case are consistent with such reasonable expectations predating March 2021.

    The FTC filed a motion to exclude Cooper’s testimony on three grounds. First, it said that his testimony is irrelevant to whether Defendants violated the FTC Act or ROSCA and the availability of civil penalties. Second, it contended that his methodology is unreliable because he applied his case coding technique inconsistently. Third, it asserted that he offers legal conclusions that are inadmissible under Federal Rule of Evidence 702. 

    Law And Legal Expert Witness

    James Campbell Cooper is a law professor at George Mason University’s Antonin Scalia Law School (ASLS). He has a Ph.D. in economics from Emory University. At ASLS, he teaches courses on the digital economy and consumer protection law; the consumer protection law course covers, among other things, the FTC’s authority to regulate deceptive conduct and FTC disclosure requirements. 

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

    Discussion by the Court

    To generate his opening report, Cooper reviewed complaints and judicial decisions from ROSCA enforcement actions initiated before March 2021, when Amazon received a Civil Investigative Demand from the FTC. He then coded these materials to determine the prevalence of certain allegations in ROSCA enforcement actions. If an element was included in the document, it was coded as a “1” but if an element was not included then it was coded as a “0.” This method purportedly allowed him to calculate the relative frequency of certain allegations and understand the conduct a “reasonable market participant” would expect to violate ROSCA. 

    Cooper found that “the FTC’s allegations against Amazon in this case lay out a new ROSCA standard that represents an unpredictable departure from the standard prior to March 2021 in two ways.” First, he said that the allegations suggested a new standard to “balance” the options to accept or decline an offer to enroll in a subscription service. Second, he said that the FTC’s complaint sets out more stringent standards for clear and conspicuous disclosure, express informed consent, and simple cancellation than a “reasonable market participant” would have expected ROSCA to require. His report also found that “a reasonable market participant would not have believed, prior to March 2021, that the enrollment and cancellation flows alleged in the Complaint violated ROSCA.”

    Relevance of Cooper’s Testimony

    Defendants said that Cooper’s opinions are relevant to the FTC’s request for civil penalties. But the FTC said that Cooper’s opinions are irrelevant to this request because the understanding of a “reasonable market participant” is unrelated to any Defendant’s actual knowledge, which is the relevant question in the civil penalty inquiry. The FTC also contended that Cooper’s opinions are flawed because they were formed on the basis of non-ROSCA guidance.

    The Court held that Cooper’s opinions are relevant to the FTC’s request for civil penalties because his report may help the trier of fact determine whether Defendants should have known their actions were unlawful. The FTC argued that Cooper did not offer an opinion on this subject because the relevant implied knowledge inquiry for Amazon is whether “a sophisticated company with virtually unlimited resources and near-constant involvement of in-house and outside counsel should have known.” 

    And it said, for the individual Defendants, whether “executives in charge of the largest subscription program in the United States, essentially unlimited legal resources, and constant involvement with in-house or outside counsel” should have known. But these arguments that Cooper did not account for the actual circumstances of this case concerned the weight—not admissibility—because they attacked the factual basis of his opinions.

    In addition, Cooper’s reliance on non-ROSCA guidance for his opinions did not render them irrelevant. As the FTC’s designated representative recognized in her deposition, non-ROSCA sources provide “guidance relating to clear and conspicuous online disclosures” that are the same as “clear and conspicuous disclosure[s] in the context of ROSCA.”

    Reliability of Cooper’s Testimony

    The FTC next argued that Cooper’s opinions must be excluded because they are unreliable. It said that Cooper failed to demonstrate how his experience informs his conclusions. It also said that Cooper’s case coding methodology was applied inconsistently because he used a different method to code for “dark patterns” than he used to code for past FTC ROSCA enforcement actions.

    The FTC’s first two arguments, that Cooper lacked experience with ROSCA and he did not show how his experience informed his conclusions failed to persuade the Court.

    Even though the FTC said that Cooper did not perform any work pertaining to ROSCA while working at the FTC and that he has not written substantively on ROSCA, these arguments merely concerned to the weight of his conclusions. Cooper added that the methodology he employed is common in the field of law and economics.

    The FTC’s other argument about reliability, that Cooper applied his coding method inconsistently, also did not persuade the Court. The FTC took issue with Cooper’s methodology because he reviewed and analyzed past FTC ROSCA complaints to code them, but then coded past FTC cases for “dark patterns” based on the explicit use of that term. 

    The FTC likewise contended that Cooper did not consider consent orders from past FTC ROSCA enforcement actions to code for sub-categories of alleged deficiencies, but he did review consent orders from past FTC ROSCA enforcement actions to code for allegations of fraud.

    Defendants explained in response that the FTC has not defined “dark patterns” clearly enough to allow coding by any means other than searching for this explicit term. At his deposition, Cooper explained that he did not consider some information, such as FTC consent orders, because he was coding for the presence of certain allegations made in each case.

    Testimony on Legal Conclusions

    The FTC maintained that Cooper’s report included four impermissible legal conclusions: (1) that “the FTC’s allegations against Amazon in this case lay out a new ROSCA standard”; (2) that “the first departure from prior guidance is the novel theory of liability grounded in the subjective concept of ‘dark patterns’”; (3) that “the FTC employed much more stringent tests for ‘clear & conspicuous disclosure,’ ‘express affirmative consent,’ and ‘simple cancellation’ in this case than in its other ROSCA cases”; and (4) that “a reasonable market participant would not have believed, prior to March 2021, that the enrollment and cancellation flows alleged in the Complaint violated ROSCA.”

    The FTC did not identify any portion of his report that claimed to interpret ROSCA. Nor did the FTC identify any portion of his report that opines on whether Defendants had knowledge of ROSCA or that Defendants knew or should have known that their actions violated ROSCA. Instead, as Defendants acknowledged, Cooper reviewed, interpreted, and analyzed the FTC’s past ROSCA enforcement actions. He then noted where he believed the FTC departed from its prior guidance. This is not an interpretation of ROSCA. He also concluded that a “reasonable market participant” would have expected to have complied with ROSCA under certain conditions, but he never says that Defendants did not violate ROSCA or that Defendants would not have expected to have complied with ROSCA under these conditions. 

    The Court found this testimony permissible because an expert is allowed to “discuss industry conditions, standards, and practices” as well as “factual corporate norms.”

    Held

    The Court denied the Plaintiff FTC’s Rule 702 motion to exclude the testimony of Defendants’ expert James C. Cooper.

    Key Takeaway:

    Cooper’s report does not go so far as to decide the ultimate legal questions. Instead, it stays within proper bounds by addressing industry conditions, standards, practices, and common corporate norms.

    Please refer to the blogs previously published about this case:

    Marketing Expert Employed Techniques Widely Accepted in Market Research Community

    Human Factors Expert’s Testimony on Dark Patterns Excluded

    Case Details:

    Case Caption: Federal Trade Commission V. Amazon.Com, Inc., Et Al.
    Docket Number: 2:23cv932
    Court Name: United States District Court, Washington Western
    Order Date: August 15, 2025
  • Any Rule 26 Violation in the Accounting Expert’s Disclosure was Substantially Justified

    Any Rule 26 Violation in the Accounting Expert’s Disclosure was Substantially Justified

    Plaintiffs Michael Sutherland and Comfy Materials LLC sued Defendant Wellshow Machining Parts, Inc. for copyright infringement and false advertising relating to Defendant Wellshow’s Amazon listings of its
    competing products.

    Per the Amended Case Management and Scheduling Order, Plaintiffs disclosed one expert witness, Charleen Purdy, on March 14, 2025, who will “opine on Plaintiffs’ economic losses in connection with their claims brought against Defendant, and to prepare any rebuttal analysis and report related to any alleged damages incurred by Wellshow as to its tortious interference claim.”

    In her report, Purdy disclosed that discovery was ongoing at the time of her expert report, and therefore, she could not form an opinion on damages due to the outstanding requested discovery. Specifically, Plaintiffs’ expert report indicated that she had only received incomplete and insufficient documents from Defendant on March 7, 2025, and requested a list of additional documentation from Defendant “in order to determine, if any, the economic loss suffered by the Plaintiffs” and Defendant. Plaintiffs’ expert report also reserved the right to supplement her report following full and complete discovery. 

    Therefore, Defendant, Wellshow Machining Parts, Inc., sought an order precluding Plaintiffs from offering undisclosed expert testimony and precluding Plaintiff Michael Sutherland, corporate representatives, or employees of Defendant Comfy Materials, LLC from providing expert testimony under Federal Rule of Evidence 702.

    Accounting Expert Witness

    Charleen E. Purdy is a principal at Perzel & Purdy Forensic CPA’s, LLC. She is licensed as a Certified Public Accountant (CPA), credentialed as a Certified Valuation Analyst (CVA), Master Analyst in Financial Forensics (MAFF), and trained in Collaborative Divorce.
    Her experience includes services in the areas of forensic accounting, damage claims, business valuations, economic loss analysis, money laundering, shareholder disputes, trust and estate litigation, Ponzi schemes, personal injury claims, litigation support, and expert witness services.

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

    Discussion by the Court

    Plaintiffs conceded that its expert witness disclosure is noncompliant with Rule 26(a)(2)(B) and Federal Rule of Evidence 702. As such, Plaintiffs’ expert report has no “facts or data” under Rule 26(a)(2)(B)(i)-(ii) because she could not properly form an opinion. Nevertheless, to comply with the Amended CMSO, Plaintiff’s timely disclosed Purdy to meet “the requirements of Rule 26(a)(2)(B) to the extent possible.”

    Here, the Court found that even if Purdy’s expert report is insufficient under Rule 26(a)(2)(B), Plaintiffs still have time to supplement Purdy’s expert report within a timely manner under Rule 26(e).

    As for the timing of the supplement, Rule 26(e)(2) states that for a Rule 26(a)(2)(B) expert (i.e., a retained expert), “any additions or changes to this information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.” Rule 26(a)(3)(B) provided that “these disclosures must be made at least 30 days before trial.” The CMSO has set the trial on November 3, 2025, and directs the parties to “meet the pretrial disclosure requirements and deadlines in Fed. R. Civ. P. 26(a)(3).” Thus, the Plaintiffs still have until October 4, 2025, to supplement Purdy’s expert report.

    Analysis

    To begin with, the Court found that any Rule 26(a)(2)(B) violation in Purdy’s disclosure on March 14, 2025, was substantially justified. First, Defendant’s motion did not make any argument about potential prejudice or surprise.  Nor could Defendant make such arguments since, following Plaintiff’s timely expert witness disclosure on March 14, 2025, Defendant had the opportunity to provide the documents requested by Purdy and/or depose her before the discovery cut-off on April 28, 2025.

    Additionally, Plaintiffs’ failure to provide a sufficient disclosure was harmless under Rule 37 because (1) Defendant has been on notice as to the subject matter of Purdy’s testimony since the expert witness disclosure deadline, and (2) any prejudice resulting from Plaintiffs’ insufficient disclosure can be cured by a supplemental disclosure.

    Held

    The Court denied Defendant Wellshow’s motion in limine to preclude the testimony Plaintiff’s expert Charleen Purdy.

    Key Takeaway:

    Substantial justification exists if there is justification to a degree that could satisfy a reasonable person that parties differ as to whether the party was required to comply with the disclosure request.

    The Court found any violation of Rule 26(a)(2)(B) in Charleen Purdy’s disclosure was substantially justified.

    Case Details:

    Case Caption: Sutherland V. Wellshow Machining Parts, Inc. Et Al
    Docket Number: 8:24cv854
    Court Name: United States District Court, Florida Middle
    Order Date: August 1, 2025
  • Psychology Expert’s Failure to Disclose Does Not Warrant Exclusion

    Psychology Expert’s Failure to Disclose Does Not Warrant Exclusion

    Kiel Green fell to the ground after hitting the back of his elbow on a pallet of metal shelving while returning from a wooden wagon display containing beef jerky. At the time Green entered Atwood’s, Defendant was in the process of conducting a “reset” and various departments and merchandise were in the process of being rearranged. As part of the reset, a pallet of metal shelving had temporarily been placed near the beef jerky.

    Kiel and Melissa Green filed this action against Atwood Distributing, L.P. seeking to recover for negligence and loss of consortium arising from this incident, and requesting both compensatory and punitive damages.

    Plaintiffs filed a motion to strike Defendant’s expert witnesses Elizabeth Speck-Kern, Ph.D. and Irmo Marini, Ph.D.

    Plaintiffs argued that the Court should strike Speck-Kern as an expert witness because: (a) Speck-Kern did not send the raw data from her Rule 35 examination of Green to Green’s neuropsychologist until the day Daubert motions were due, violating Rule 26(a)(2)(B)(ii); and (b) Defendant failed to disclose a deposition given by Speck-Kern in the last four years, violating Rule 26(a)(2)(B)(v) while Marini has failed to disclose a list of all other cases in which he has been deposed or testified in the last four years under Rule 26.

    Psychology Expert Witness

    Elizabeth Speck-Kern is the Founder and Partner of Arkansas Neuropsychology Associates, P.A. She performs neuropsychological, psychological, and forensic examinations on children and adults. She obtained her Ph.D. in School Psychology from the University of South Carolina.

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

    Vocational Evaluation & Rehabilitation Expert Witness

    Irmo D. Marini obtained his PhD in rehabilitation from Auburn University and a master’s degree in clinical psychology from Lakehead University in Thunder Bay, Ontario, Canada. He is a 2009 recipient of the National Council on Rehabilitation Education’s Distinguished Career Award in rehabilitation education, and 2010 recipient of the American Rehabilitation Counseling Association’s James F. Garrett Distinguished Career Award in rehabilitation research.

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

    Discussion by the Court

    Elizabeth Speck-Kern

    In response, Defendant filed an affidavit by Speck-Kern explaining these two lapses. The affidavit sets forth that Speck-Kern’s failure to timely transfer the raw data to Green’s neuropsychologist was the result of a series of increasingly unfortunate events.

    Specifically, Plaintiffs’ counsel requested the raw data from defense counsel on February 7, the day after the Rule 35 examination, and defense counsel forwarded that request to Speck-Kern three days later. At that point, the raw data had not yet been compiled, and, unfortunately, Speck-Kern overlooked the emailed attachment that contained Plaintiffs’ request. As a result, the request went unanswered.

    Subsequently, two months later—and approximately six weeks after the full disclosure deadline—on April 11, Plaintiffs’ counsel contacted defense counsel to explain that Green’s neuropsychologist never received the raw data and to renew his request. Defense counsel forwarded this second request to Speck-Kern on April 14. At that time, Speck-Kern and her assistant (the only other person in her practice) were dealing with multiple familial illnesses and deaths. Consequently, on May 5—the first day Speck-Kern and her assistant were both back in the office and the day Daubert motions were due—Speck-Kern forwarded the raw data to Green’s neuropsychologist.

    As for Speck-Kern’s failure to disclose a prior deposition, she explained in her affidavit that, at the time she was retained and disclosed in this case, she did not recall any testimony she had given in the last four years. It was only when she reviewed Plaintiffs’ motion to strike and saw the attached portions of the testimony that she recalled the deposition.

    Irmo Marini

    Plaintiffs filed a motion to strike Marini as an expert on the basis that Marini has failed to disclose a list of all other cases in which he has been deposed or testified in the last four years under Rule 26.

    However, Marini provided a list of all cases in which he has been retained—approximately seventeen pages long, mostly single spaced—in which he includes his client’s name, the type of opinion given, the attorney’s name, and the location.

    While Plaintiffs argued that it did not denote which cases he offered testimony in, Defendant pointed out that Marini includes a “d” or “t” at the end of the client information for each case in which he testified.

    Plaintiffs cited various out-of-circuit courts for the proposition that Rule 26(a)(2)(B)(v) requires the parties’ names, case number, court, and whether the testimony was by trial or deposition. There is no binding precedent on this matter, and “courts in this Circuit have not necessarily required such rigorous case data from experts, although this Court agreed that the sort of information required is largely ‘a matter of common sense.’”

    Held

    The Court denied Plaintiffs’ motions to strike the opinions of Elizabeth Speck-Kern and Irmo Marini. While Plaintiffs may seek leave to supplement their Daubert motion as to Speck-Kern—provided they file such motion within ten (10) days—the Court ordered Defendant to supplement Marini’s disclosures within fourteen (14) days.

    Key Takeaway:

    “When a party fails to provide information” under Rule 26(a), “the district court has wide discretion to fashion a remedy or sanction as appropriate for the particular circumstances of the case.” However, the exclusion of evidence is a harsh penalty and should be used sparingly.

    Case Details:

    Case Caption: Green Et Al V. Atwood Distributing, L.P.
    Docket Number: 5:24cv5040
    Court Name: United States District Court, Arkansas Western
    Order Date: July 03, 2025
  • Hospitality Expert’s Testimony on Corporate Structure Excluded

    Hospitality Expert’s Testimony on Corporate Structure Excluded

    The Plaintiffs had purchased timeshares at the Westgate Smoky Mountain Resort. They alleged that the Defendants, comprising various entities linked to the resort, operated a high-pressure sales scheme. According to the Plaintiffs, this scheme persuaded prospective buyers to invest in the vacation timeshare program without properly disclosing critical and legally mandated information.

    In June 2020, Defendants disclosed Howard Nusbaum as an expert. Nusbaum provided an overview of timeshare history and its industry. He then set forth his disagreements with Plaintiffs’ expert, Mr. Kenneth Christopher Free.

    Plaintiffs filed a motion to exclude certain opinions of Mr. Howard Nusbaum. 

    Hotel And Hospitality Expert Witness

     Howard C. Nusbaum was the president and chief executive officer (“CEO”) of American Resort Development Association (“ARDA”) from 2000 to 2019.

    For the past thirty-seven years, he has held leadership positions in hotels and resorts with the last twenty years focused solely on timeshare standards, education, and communications with the goal of sharing these best practices.

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

    Discussion by the Court

    Nusbaum’s Opinions Regarding Defendants’ Sales Practices

    According to Plaintiffs, “Nusbaum opined that ‘Free’s assertions that somehow [Defendants] did not adequately or clearly disclose information about the use plan and booking availability is truly perplexing and is just plain wrong.’”

    Plaintiffs argued that Nusbaum’s opinion was not grounded in sufficient facts and relied on three unsupported bases. First, they claimed that Nusbaum relied on Defendants’ Public Offering Statement (“POS”) and made “a legal argument masquerading as an expert opinion.” Second, they argued that Nusbaum relied on Defendants’ experience, which they considered irrelevant. Finally, they asserted that Nusbaum based his opinion on his belief that Defendants had sufficient inventory.

    The Court had already excluded Free’s testimony regarding inadequate disclosures, finding it unhelpful to the jury. In light of that ruling, Plaintiffs’ challenge to Nusbaum’s critique of Free’s opinions appeared moot. To the extent Defendants sought to rely on Nusbaum’s opinions, the Court found them unhelpful for the same reasons it had excluded Free’s.

    Although Defendants argued that “Nusbaum opines that the disclosures in the POS ‘meet industry standards’,” Nusbaum, like Free, failed to explain the specific industry standards he referenced.

    Accordingly, to the extent Plaintiffs’ challenge was not moot, the Court concluded that Nusbaum’s opinions regarding Defendants’ sales practices were not helpful and should be excluded.

    Nusbaum’s Opinions about Corporate Structure

    Plaintiffs stated that, “Nusbaum’s opinion that Defendants’ use of multiple company entities is ‘legal’ is obviously, a legal conclusion, and thus, inadmissible.” In addition, Plaintiffs submitted that “Nusbaum’s opinion is not based on any information or data about the specific interrelationships between the various [Defendant] entities that are Defendants in this case.”

    The Court agreed that Nusbaum’s discussion of Defendants’ structure is not reliable.  Nusbaum stated that he did not “read any financial documents showing the interrelationship of the various Defendant entities in connection with the Resort.”  And his expert report reflected that he “did not review any documents regarding the relationships between the various Defendant entities.”

    Nusbaum’s Opinions about Free’s Experience

    According to Plaintiffs, “Nusbaum takes particular issue with the background and qualifications of Plaintiffs’ expert Kenneth Free.” But Plaintiffs stated that “Nusbaum . . . had no first-hand knowledge of Free’s role in the founding of Hilton Grand Vacations Company (HGV), which predated Nusbaum’s entry into the industry by nearly a decade.”

    Upon review, the Court held that Nusbaum’s statements appeared to be factual testimony as opposed to expert testimony. Even if Nusbaum’s statements could be considered expert testimony, Plaintiffs did not challenge any methods of collecting the information for his commemorative publications; instead, they challenged that Nusbaum did not review certain records or talk to certain individuals. These challenges go to the weight of Nusbaum’s statements.

    Plaintiffs also argued that “Nusbaum has no first-hand knowledge of Free’s role.”  But Nusbaum’s statement flows from his “two-decade experience” in the timeshare industry and his role in collecting information for the commemorative book.  If Plaintiffs believe that Nusbaum’s statements are speculative or constitute hearsay, they may object to them at a later date.

    Held

    The Court granted in part and denied in part the Plaintiffs’ motion to exclude certain opinions of Howard Nusbaum.

    Key Takeaways:

    • It is not proper for the Court to exclude expert testimony merely because the factual bases for an expert’s opinion are weak.
    • Claiming that an industry standard exists is not the same as discussing that standard.

    Case Details:

    Case Caption: Moore Et Al V. Westgate Resorts Ltd., L.P.
    Docket Number: 3:18cv410
    Court Name: United States District Court, Tennessee Eastern
    Order Date: June 27, 2025
  • Neurology Expert’s Testimony on the Future Anticipated Effects of SCA2 Admitted

    Neurology Expert’s Testimony on the Future Anticipated Effects of SCA2 Admitted

    Michael Braun filed a lawsuit against his former employer, Norton Healthcare, Inc., claiming that he was fired from his job as a Staff Pharmacist due to disability discrimination and retaliation. He alleged that this conduct violated the Americans with Disabilities Act (ADA).

    Subsequently, on November 29, 2024, Braun disclosed Dr. Mark Bazant as his treating physician and indicated that Bazant might be called as a witness.

    According to the disclosure, Bazant was retained to provide testimony regarding “the future anticipated effects of SCA2 on Plaintiff,” the “future anticipated treatment of Plaintiff’s SCA2,” and the “reasonable accommodations he recommended,” all “based on his medical training and his ongoing treatment of Plaintiff.”

    Nevertheless, Plaintiff denied that Bazant qualifies as an expert witness, asserting instead that Bazant is a treating physician who may testify only as a lay witness. In response, Defendant filed a motion to strike Bazant as an expert witness or, alternatively, to limit his testimony “only to what he directly observed while treating [Plaintiff].”

    Neurology Expert Witness

    Dr. Mark Paul Bazant, M.D., is a board-certified neurologist with Norton Neurology Services. Bazant earned his medical degree from the University of Nebraska College of Medicine in Omaha. He completed his residency in neurology and fellowship in clinical neurophysiology – electromyography (EMG) at the Indiana University School of Medicine in Indianapolis. His areas of special medical interest are EMG and neuromuscular neurology. Bazant is a member of the American Academy of Neurology and the American Association of Neuromuscular & Electrodiagnostic Medicine.

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

    Discussion by the Court

    Despite Plaintiff’s assertion that Bazant is not an expert witness, Plaintiff intended to call him to provide expert testimony

    The Plaintiff argued that the Court should deny the Defendant’s motion as moot, stating that he had not identified Bazant as an expert witness. However, the Court found that whether or not Bazant was formally designated as an expert was irrelevant to the disclosure requirements under Rule 26(a)(2). When a witness’ testimony will be based on scientific, technical, or other specialized knowledge, then a party cannot evade the requirements of Rule 26(a)(2) simply by designating that witness as a lay witness.

    The Court held that Bazant’s proposed testimony qualified as expert testimony under Rule 26(a)(2) because it relied on medical judgments based on his specialized knowledge and training. While Bazant’s testimony about his treatment of the Plaintiff and his efforts to assist Plaintiff in obtaining a reasonable accommodation could be considered lay testimony under Rule 701, the rest of his testimony went beyond that.

    Specifically, Bazant was expected to testify about the future anticipated effects of SCA2 on the Plaintiff, the future course of treatment, and the reasonable accommodations he recommended—all based on his medical training and his ongoing treatment of the Plaintiff. The Court concluded that this portion of his testimony clearly involved expert opinions requiring proper disclosure under Rule 26(a)(2).

    Plaintiff’s disclosure of Bazant did not comply with Rule 26(a)(2)(C)

    In this case, the Court found that the Plaintiff’s disclosure of Bazant was deficient under Rule 26(a)(2)(C). The disclosure failed to include a summary of the facts and opinions that Bazant was expected to testify about. Instead, it merely listed the general topics of his anticipated testimony without providing his actual opinions or conclusions relevant to the case. Furthermore, the disclosure did not explain the factual basis on which Bazant formed his opinions. As a result, the Court concluded that the Plaintiff had not satisfied the requirements of Rule 26(a)(2)(C).

    Although Plaintiff’s noncompliance with Rule 26(a)(2)(C) was harmless, the Court permitted Plaintiff to remedy the deficiency of his disclosure

    If the Defendant had already deposed Bazant without access to all the information related to his opinions on the Plaintiff’s future treatment, impairments, and recommended accommodations, it might have resulted in unfair surprise. However, the Court could not determine from the record whether Bazant had actually been deposed. The fact that the Defendant filed a Motion to Strike based solely on the Plaintiff’s disclosure suggested that the Defendant had recognized the disclosure’s deficiencies early enough to avoid being unfairly surprised. Additionally, neither party cited any of Bazant’s opinions in support of a motion. Therefore, the Court concluded that the Defendant was not unfairly surprised by the Plaintiff’s inadequate disclosure.

    The Court also considered the importance of Bazant’s testimony. While the significance of the evidence could be argued in both directions, courts generally hold that the more important the testimony, the more it weighs in favor of the party who disclosed the witness. Since the Plaintiff sought relief for the Defendant’s alleged failure to accommodate his condition under the Americans with Disabilities Act, expert testimony on reasonable and necessary accommodations was considered important to the Plaintiff’s claim.

    Lastly, the Court evaluated the Plaintiff’s explanation for failing to adequately disclose Bazant as an expert witness. The Plaintiff argued that Bazant was not disclosed as an expert because he was a treating physician and therefore should be treated as a lay witness not subject to Rule 26(a)(2)(C). However, because the legal standards under Rule 26(a)(2)(C) had become more settled since the rule’s amendment, the Court found the Plaintiff’s explanation to be insufficient.

    Taking these factors together, the Court held that Plaintiff’s mistake was harmless. The Court, consequently, permitted Plaintiff to supplement his disclosure of Bazant to remedy the deficiencies while bearing in mind the requirements of Rule 26(a)(2)(C).

    Held

    The Court denied the Defendant’s motion to strike the testimony of Mark Bazant without prejudice.

    Key Takeaway:

    Under Rule 701, a lay witness may testify in the form of an opinion only if it is not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Thus, a witness that provides opinion testimony beyond the scope of Rule 701 must be disclosed under Rule 26(a)(2) of the Federal Rules of Civil Procedure. Treating physicians may provide lay opinion testimony under Rule 701 provided such testimony is based on their first-hand observations and treatments of their patients.

    Here, the Court held that Bazant’s intended testimony is expert testimony governed by Rule 26(a)(2) because it includes medical judgments based on his specialized knowledge and training.

    Case Details:

    Case Caption: Braun V. Norton Healthcare, Inc.
    Docket Number: 3:24cv39
    Court Name: United States District Court, Kentucky Western
    Order Date: June 17, 2025
  • Orthopedic Surgery Expert’s Opinions About an Aggravation of Pre-Existing Degenerative Disc Disease Admitted

    Orthopedic Surgery Expert’s Opinions About an Aggravation of Pre-Existing Degenerative Disc Disease Admitted

    Plaintiff Myles Childress brought his claims against Defendant Wal-Mart Stores East I, LP. after he allegedly sustained injuries while delivering goods to a Walmart store in Bridgeton, Missouri. 

    Plaintiff raised claims against both Defendant Walmart and Walmart’s employee, an unknown Doe Defendant. 

    Dr. Richard Kube is an orthopedic spine surgeon practicing in Peoria, Illinois. Defendant argued that Kube’s conclusions regarding causation are deficient because Kube relied on Plaintiff’s inaccurate representation of his medical history.

    Orthopedic Surgery Expert Witness

    Richard A. Kube II, MD, FACSS, FAAOS, CIME is a fellowship trained spine surgeon and Founder/Owner of Prairie Spine & Pain Institute, in Peoria, Illinois. He also founded and owns Prairie Surgicare, an AAAHC certified surgical facility. He holds Board Certifications from the American Board of Spine Surgery, American Board of Orthopaedic Surgery and American Board of Independent Medical Examiners.

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

    Discussion by the Court

    While there is no dispute that Plaintiff’s medical records indicate that he had degenerative back problems before the alleged injury occurred, Kube specifically testified that the alleged incident aggravated Plaintiff’s degenerative spine condition, causing it to become symptomatic when it was previously asymptomatic. Kube further testified that surgical intervention was necessary to treat this aggravated condition. Kube also testified that the injuries to Plaintiff’s spine are consistent with the way Plaintiff describes being knocked to the ground by the pallet. 

    Defendant’s Arguments

    Defendant contended that the incident cannot be the “but for” or the proximate cause of Plaintiff’s back injuries because Plaintiff already had records of degenerative changes in his spine before the incident occurred. Essentially Defendant argued that Plaintiff’s degenerative injuries were always present and were not a result of acute trauma, and therefore any treatment he received from Kube was going to occur anyway.

    Defendant also raised a side argument regarding whether Plaintiff properly disclosed Kube as an expert witness under Rule 26, and therefore questioned whether Kube can even testify in this matter as an expert. 

    Defendant contended that (1) to establish causation in this case, Plaintiff must present expert testimony; (2) Kube provides the only causation testimony in this case; and (3) Plaintiff’s failure to properly disclose Kube as an expert within the timeframe permitted by the Court’s case management order precludes the use of his testimony in defeating the Defendant’s motion for summary judgment.

    Plaintiff’s Response

    Plaintiff contended that Defendant has not filed a motion to exclude Kube’s testimony, and therefore its assertion that there is no record evidence that could establish causation is futile.

    Plaintiff stated that Kube is a treating physician and not a retained expert witness, so Plaintiff had no duty to supply a written expert report. Moreover, Defendant’s counsel waived his right to a discovery deposition of Kube.

    Analysis

    The Court found that Defendant has had sufficient notice of Kube’s opinions regarding causation and has not been prejudiced by Plaintiff’s alleged failure to timely disclose him. The Court has reviewed the email exchange between the parties’ counsel from before the disclosure deadline regarding (1) whether Kube was required to produce an expert report, and (2) what will be the purpose of his deposition. 

    These emails indicate that Defendant knew as early as July 24, 2024, that Kube was going to testify in this case and that, prior to Kube’s deposition, Defendant stated he was not taking the deposition as a “discovery” deposition. 

    Kube’s deposition occurred on September 30, 2024, before the deadline for Plaintiff to make his experts available for deposition.

    At this stage in the case and on this record, the Court found that Defendant was at least on notice that Kube would be testifying in this case before the deadline for expert witness disclosure and that Defendant’s argument in the motion for summary judgment are not sufficient to exclude Kube from offering his causation testimony at trial without some additional showing of prejudice.

    Held

    Because Kube’s causation testimony was sufficient to create a genuine issue of material fact that must proceed to trial, so the Court denied Defendant’s motion for summary judgment.

    Key Takeaway:

    Defendant’s only argument is that Plaintiff did not properly disclose Kube as an expert witness before the deadline set to disclose experts under the Court’s case management order.

    The Court found that Defendant has had sufficient notice of Kube’s opinions regarding causation and has not been prejudiced by Plaintiff’s alleged failure to timely disclose him. 

    Case Details:

    Case Caption: Childress V. Wal-Mart Stores East I, LP
    Docket Number: 4:24cv580
    Court Name: United States District Court, Missouri Eastern
    Order Date: May 30, 2025
  • Psychology Expert’s Opinions Regarding Suicide by Cop Excluded

    Psychology Expert’s Opinions Regarding Suicide by Cop Excluded

    This civil rights case arises out of the officer-involved detention and shooting of Hector Puga (“Decedent”) by California Highway Patrol officers Isaiah Kee, Michael Blackwood, and Bernardo Rubalcava (“State Defendants”) and County of San Bernardino deputies Jake Adams and Robert Vaccari (“County Defendants”) that resulted in Decedent’s death on February 17, 2021.

    At the Final Pretrial Conference, Plaintiffs raised concerns regarding State Defendants calling County Defendants’ expert Dr. Kris Mohandie as a witness because State Defendants had not designated Mohandie as an expert. Thus, the Court ordered Plaintiffs to file briefing regarding the admissibility of expert witness Mohandie’s testimony no later than Monday, May 19, 2025. The Court also ordered any opposition to be filed by Wednesday, May 21, 2025. 

    On May 19, 2025, Plaintiffs filed the instant motion in limine to exclude the testimony of Mohandie. State Defendants failed to file an opposition.

    Psychology Expert Witness

    Kris Mohandie is a board-certified specialist in police and public safety psychology through the American Board of Professional Psychology.

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

    Discussion by the Court

    It was Mohandie’s opinion that the decedent committed suicide by cop. According to him, the Decedent had an Antisocial Personality Disorder, including psychopathy, with life-threatening addictions to alcohol and methamphetamine.

    In this case, State Defendants failed to designate Mohandie as an expert witness prior to the deadline to designate an expert witness.

    Moreover, State Defendants failed to oppose Plaintiffs’ motion. Thus, State Defendants’ failure to file an opposition is deemed consent to the granting of the motion. 

    Held

    The Court granted the Plaintiffs’ motion in limine to exclude the testimony of Dr. Kris Mohandie.

    Key Takeaway:

    Failure to file any required document, or to file it within the stipulated deadline, may constitute consent to the granting of the motion. Moreover, arguments for which no response is provided are considered to be conceded.

    Case Details:

    Case Caption: L.C. Et Al V. State Of California Et Al
    Docket Number: 5:22cv949
    Court Name: United States District Court, California Central
    Order Date: May 22, 2025
  • Economics Expert’s Testimony About Tivity’s Stock Price Drop Excluded

    Economics Expert’s Testimony About Tivity’s Stock Price Drop Excluded

    This securities fraud putative class action is based on allegations that Tivity, a publicly traded company, as well as various high-ranking executives, made false or misleading statements and omissions, and had a scheme to defraud investors regarding, facts material to both: the purported success of Tivity’s acquisition of Nutrisystem, Inc. (“Nutrisystem”) in Q1 of 2019 (“Nutrisystem Claim”); and the valuation of Tivity’s goodwill and the Nutrisystem tradename throughout 2019 (“Goodwill Claim”). 

    According to Lead Plaintiff, Defendants’ materially false or misleading statements and omissions on these issues led to significant losses in shareholder value when, on February 19, 2020, Defendants disclosed Tivity’s financial results for 2019 and forecasts for 2020, and announced the resignation of the Nutrition Segment’s President, Keira Krausz as well as the termination, without cause, of Tivity’s CEO, Donato Tramuto.

    Predictably, the effect (or lack thereof) of the allegedly fraudulent statements and omissions on the Corrective Disclosure and Tivity’s eventual decreased stock price is a central contested factual issue of this case. W. Scott Dalrymple sought to opine on the amount of loss Tivity shareholders experienced from Defendants’ scheme to defraud them, as well as their false and misleading statements and omissions, through evaluation of five items in the Corrective Disclosure.

    Defendants filed a motion to exclude the testimony of Dalrymple.

    Economics Expert Witness

    W. Scott Dalrymple is an economist specializing in quantitative valuation, econometrics, statistics, securities analysis, antitrust, financial markets, and intellectual property.

    Dalrymple has led numerous consulting, commercial litigation, and restructuring engagements on behalf of multinational companies, investors, financial institutions, and government agencies in the U.S., Europe, and Australia.

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

    Discussion by the Court

    Dalrymple is supposed to analyze the impact of the Corrective Disclosure on Tivity’s stock price.

    Dalrymple’s Analysis

    First of all, Dalrymple assumed that Tivity’s stocks had been trading on a semi-strong form of an efficient market prior to Tivity’s release of the Corrective Disclosure on February 19, 2020. Then, Dalrymple conducted a market model event study by using a regression model to predict expected returns on Tivity’s stock during the event window (i.e., the day of the Corrective Disclosure).

    Tellingly, Dalrymple made no attempt to separate the varying purported causes of Tivity’s stock drop included in the Corrective Disclosure—to determine whether some, all, or none of that information was attributable to Defendants’ fraud. 

    Dalrymple explained this seemingly glaring omission in his analysis. He contended that isolating the effects of the five items in the Corrective Disclosure is unnecessary given all that information is within what Lead Plaintiffs believe to be the zone of risk of Defendants’ concealed fraud.

    The Court held that Dalrymple failed to both (1) bridge any connection between the alleged corrective information, Defendants’ fraud, and Tivity’s stock decline, and (2) apply any principled or economic method to support his conclusion that the items in the Corrective Disclosure did not constitute confounding information that required removal from his total damages calculation.

    Dalrymple Fails to Properly Analyze the “Corrective” Nutrition Segment Financial Disclosures

    The Court held that Dalrymple’s aggregation of the five items in the Corrective Disclosure (the Q4 and 2019 earnings results, Q1 and FY 2020 earnings guidance, impairments to Tivity’s goodwill and the Nutrisystem tradename, and the announcements of Tramuto’s termination and Krausz’s resignation) as a single bundle of new information, despite acknowledgement that some of the information implicated information beyond Defendant’s alleged fraud, demonstrated the issue with his approach. 

    Dalrymple made no effort to determine whether the Q4 and 2019 earnings results, Q1 and FY 2020 earnings guidance, and impairments to Tivity’s goodwill and the Nutrisystem tradename were actually “corrective.”

    Nor did he account for that some of that financial information—information that, according to Lead Plaintiff, made the stock price fall—had already been anticipated by the market based on prior disclosures that the Nutrisystem acquisition may prove unsuccessful. 

    Because Dalrymple knew the market already anticipated that the Nutrisystem merger may have failed irrespective of Defendants’ fraud, the Court held that his analysis “should have carefully considered whether other factors [other than Defendants’ alleged fraud] might have been at play” in causing Tivity’s stock price decline. 

    Dalrymple Fails to Properly Analyze the “Corrective” Executive Departure Announcement Disclosures

    Dalrymple’s treatment of Tivity’s executive departures revealed in the Corrective Disclosure is equally flawed. As with Dalrymple’s acknowledgement that Tivity’s financial information could contain non-fraud related information, he understood “that Tramuto’s eventual departure from the company may have been anticipated.”

    The Court held that Dalrymple’s analysis of the purported corrective disclosures announcing Tramuto’s termination and Krausz’s resignation suffers from another flaw: these items are, as a matter of law, not within the zone of risk of Defendants’ alleged fraud. There is no evidence in the record that Tivity’s announcements of Krausz’s resignation and Tramuto’s termination revealed any fraud perpetuated by Defendants.

    Because Dalrymple does not provide any bridge between his opinion that the announcement of Tivity’s executive departures had “limited, if any, negative impact” on Tivity’s share price and an analytical framework supporting that conclusion, the Court held that Dalrymple’s attempt to remove this non-fraud information from his equation is merely inadmissible ipse dixit.

    Dalrymple’s Demeanor at the Daubert Hearing Underscores Why His Opinions Should Be Excluded

    The shortcomings of Dalrymple’s analyses are compounded by his demeanor on the stand. Dalrymple has extensive experience as an expert in litigation. He has appeared as an expert at trials and hearings on nine prior occasions and has sat for twenty depositions.

    However, during one exchange with Defendants’ counsel, Dalrymple directly contradicted his prior deposition testimony that he it did not causally connect any alleged misstatements to any of the five items from the Corrective Disclosure he based his opinions on by attempting to assert the opposite during the Daubert hearing. While testifying is no doubt a stressful experience, even for those familiar with the courtroom, Dalrymple’s contradictory positions about such basic elements of his reports and the tone and tenor of his testimony further underscores the problems with Dalrymple’s testimony and opinions.

    Dalrymple’s Testimony and Opinions Are Inadmissible Under Rule 702

    In this case, Dalrymple ignored the possibility that a portion of the five items in the Corrective Disclosure did not relate to Defendants’ fraud, and he also chooses to ignore his own knowledge confirming as much. 

    He then failed to properly deploy any reliable methodology based on sufficient data about the market to analyze whether there were any non-fraudulent factors within the Corrective Disclosure contributing to a drop in Tivity’s stock.

    Because Dalrymple did not reliably determine whether the information he relied upon was corrective of Defendants’ fraud, and did not reliably calculate the loss in value, if any, of Tivity’s stock that was caused by only non-fraudulent factors, the Court held that his testimony is also unhelpful to the jury. 

    Held

    The Defendants’ motion to exclude W. Scott Dalrymple’s testimony was granted by the Court.

    Key Takeaway:

    By presuming that analysts had already priced in all goodwill, integration, and diet-season risks in the Nutrition segment, Dalrymple treats any price drop from the five items in the Corrective Disclosure as necessarily fraud-related. But he finds support of this assumption only in the stock drop itself. For this, and the reasons stated above, his lack of methodological reasoning in disaggregating the fraud and non-fraud information in the Corrective Disclosure raises several “red flags that caution against certifying an expert includ[ing] reliance on anecdotal evidence, improper extrapolation . . . lack of testing, and subjectivity.” 

    Case Details:

    Case Caption: Strougo V. Tivity Health, Inc. Et Al
    Docket Number: 3:20cv165
    Court Name: United States District Court, Tennessee Middle
    Order Date: May 15, 2025
  • Belated Production of the Accounting Expert’s Report Was Not Justified

    Belated Production of the Accounting Expert’s Report Was Not Justified

    Asserting various state and federal claims arising from alleged trademark infringement, Sacks Holdings, Inc. (the “Plaintiff” or “Sacks”) sued Grin Natural USA Limited, Grin Holdings Limited, Grin Natural US Limited, and Grin Natural Products Limited (collectively, the “Defendants” or “Grin”) for, inter alia, trademark infringement.

    In July 2024, Defendants’ counsel contacted Julianne “Juli” Saitz at FTI Consulting, asking her “to take a look at” the instant “trademark infringement dispute,” as well as to “give [defense counsel Saitz’s] thoughts on potential damages.”

    At 8:12 p.m. on Wednesday, October 30, 2024, Defendants produced a second expert report from Saitz (the “New Report”) as well as certain documents (the “New Evidence”) that contain “information relied on by Saitz in forming her opinions.” 

    Plaintiff sought to exclude the New Evidence and strike the New Report. Defendants opposed both Motions.

    Accounting Expert Witness

    Julianne Saitz has more than 25 years of experience providing forensic accounting and financial and economic analysis to attorneys in litigation and arbitration, as well as private general ledger accounting expertise. 

    Saitz holds a B.S. from New York University’s Stern School of Business. She is a Certified Public Accountant in New York, is Accredited in Business Valuation and is Certified in Financial Forensics by the American Institute of Certified Public Accountants.

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

    Discussion by the Court

    First of all, Defendants failed to establish either harmlessness or substantial justification for their belated production of the New Evidence.

    Defendants contended that the New Report qualifies as a “timely and proper” supplementation. 

    To begin, as Defendants tacitly concede, the Initial Report opines solely on the parties’ sales, whereas the New Report additionally opines on the parties’ profits. Thus, the New Report offers “new opinions” and calculations; it does not merely “offer[] more details on [Saitz’s] prior calculations” or otherwise supplement her prior opinions.

    However, Defendants just failed to provide the (basic) information necessary to begin the five-day objection window until August 26, 2024, a delay that extended the objection window beyond the expert report deadline.

    “Second,” Defendants maintained, they “created new financial statements after receiving guidance from Saitz on the details of costs and expense information necessary from deduction of sales to determine profits. That effort took until October.” The Court held that this argument does not show good cause for the violation of Rule 26.

    The exclusion of the New Evidence independently necessitates exclusion of those portions of the New Report that rely thereon, and the determination that Plaintiff possesses priority rights to the disputed mark lessens the importance of the New Report’s calculation of Plaintiff’s profits to resolution of this action. 

    This case, filed more than seventeen months ago, goes to trial in less than three months and even Defendants’ proposed alternative sanction would interject further delay into these proceedings. 

    In sum, the Court held that the Defendants failed to establish good cause for their belated production of the New Report.

    Held

    The Court granted the Plaintiff’s motion to exclude the New Evidence and strike the New Report. 

    Key Takeaway:

    Rule 26(e) requires a party to “supplement or correct its disclosure or response . . . if the party learns that in some material respect the disclosure or response is incomplete or incorrect.”

    Case Details:

    Case Caption: Sacks Holdings, Inc. V. Grin Natural USA Limited Et Al
    Docket Number: 1:23cv1058
    Court Name: United States District Court, North Carolina Middle
    Order Date: May 09, 2025