Expert Witness Profiler

Tag: Disclosure

  • Intellectual Property Expert Witness Cannot Cloak her Testimony on Validity with her Experience

    Intellectual Property Expert Witness Cannot Cloak her Testimony on Validity with her Experience

    EPP and Paveloc both construct and sell “erosion prevention” systems that are used in retaining walls. The systems are made up of interlocking hiocks. EPP has a patent on its “Channel Lock II block” (US Patent No. 8,123,435) (“the 435 patent”).

    At some point the business relationship soured. Paveloc stopped making the EPP product and began manufacturing a competing product, the ARP block. EPP alleges that the ARP block is a “knock off” of the Channel Lock II block and that Paveloc was making the ARP blocks using the same molds that FPP had provided to Paveloc to make the Channel Lock II product.

    In 2020, Fort Bend County Levee Improvement District No. 2 opened a new project for bidding. It awarded the contract for the project to TLC, a general contractor for construction projects. TLC took bids from subcontractors for erosion prevention blocks. Both Paveloc and EPP submitted hids. TLC accepted Paveloc’s bid. According to EPP, Paveloc got the project by using the ARP block, the alleged knockoff of EPP’s Channel Lock II block. 

    With the trial just a week away, Plaintiff supplemented its expert Evans’ report, offering opinions on the USPTO patent process and the validity of the ‘435 Patent as a rebuttal to Defendants’ claim of invalidity. 

    Defendants argued that this supplementation is untimely and circumvented this Court’s ruling that Evans is not a person of ordinary skill in the art, unqualified to give opinions on invalidity.

    At this point, the Court is faced with several evidentiary motions, including the Defendants’ motion to strike Andrea H. Evans’ supplemental report and Plaintiff’s omnibus motion in limine to exclude the testimony of Defendants’ expert—Dan Bullock.

    Intellectual Property Expert Witness

    Andrea Evans is a former patent and trademark examiner, has a civil and environmental engineering degree from Georgia Tech, and worked at an engineering company between college and law school. 

    She has been a licensed attorney in good standing by the State of Texas since 2003. Evans has been a member of the USPTO Patent Bar since 2007. She has been a member of the U.S. Supreme Court Bar since 2009.

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

    Engineering Expert Witness

    Daniel B. Bullock is a principal at Bullock, Bennett & Associates, LLC, an engineering and geoscience firm. He is a licensed professional engineer in Texas and also holds inactive professional engineer licenses in Arkansas, New Jersey, and Louisiana. He has over thirty years of professional experience working in the field of water resources and geotechnical engineering.

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

    Discussion by the Court

    Andrea Evans

    As a patent examiner, however, Evans did not work in the field of erosion prevention or cement block manufacturing, but instead, examined time-measuring devices, keyboards, and press printing systems. Consequently, this Court held that she is not a person of ordinary skill in the relevant art, and thus, she cannot opine on invalidity of the patent.

    The question then becomes whether Evans can offer substantially similar expert opinions regarding the validity or invalidity of the ‘435 Patent as she did in the excluded report simply by couching it in her patent-examiner experience.

    Evans is a patent attorney with extensive experience in patent law and procedure. As this Court has held, however, she is not a qualified technical expert on the issues of infringement or validity. Thus, she is not qualified to give opinions on issues that are “exclusively determined from the perspective of ordinary skill in the art.” To hold otherwise would be to convert every former patent examiner into a person of ordinary skill in every art, regardless of how tenuous their patent-examination experience is to the patent dispute at hand. 

    EPP may argue, Evans can testify to what a patent examiner may determine. The Court held that Evans cannot establish any similar connection between her experience in time-measuring devices, keyboards, and press-printing systems and the claimed invention of certain concrete revetment blocks. Thus, Evans cannot cloak her expert testimony on validity with her experience as patent examiner. That would amount to a circumvention of this Court’s order that she is not qualified as a person of ordinary skill in the art.

    Dan Bullock

    Plaintiff asserts in parts of its Omnibus Motion in Limine that the testimony of Defendants’ expert—Dan Bullock—should be excluded. The Court observed that the two subparts regarding Bullock are verbatim duplicates of Plaintiff’s earlier motion to strike the declaration of Dan Bullock.

    This Court has already ruled on the motion to strike. The Court denied the motions in limine because the Plaintiff has not provided any new facts, reasons, or authority for it to deviate from its earlier ruling.

    Held

    The Court granted Defendants’ motion to strike Andrea Evans to the extent the report purports to discuss invalidity and/or what a reasonable patent examiner would or would not conclude regarding the 435 Patent.

    Moreover, the Court denied Plaintiff’s motions in limine regarding the testimony of Defendants’ expert—Dan Bullock.

    Key Takeaway:

    Evans is not a qualified technical expert on the issues of infringement or validity. Thus, she is not qualified to give opinions on issues that are “exclusively determined from the perspective of ordinary skill in the art.” To hold otherwise would be to convert every former patent examiner into a person of ordinary skill in every art, regardless of how tenuous their patent-examination experience is to the patent dispute at hand. 

    Case Details:

    Case Caption: Pave/Lock/Plus Ii Llc V. Erosion Prevention Products Llc Et Al
    Docket Number: 4:20cv3557
    Court: United States District Court, Texas Southern
    Order Date: October 8, 2024
  • Late Service of Psychology Expert Witness’ Report Might Cause Severe Prejudice

    Late Service of Psychology Expert Witness’ Report Might Cause Severe Prejudice

    Plaintiff, Rudolph Mills filed this action against Defendant, Steuben Foods, Inc., alleging employment discrimination based on race after numerous complaints about shocking and wildly inappropriate racial slurs used against him by supervisors and managers.

    Defendants moved, pursuant to Fed.R.Civ.P. 16(f)(1)(C), 26(a)(2)(A), (D), 37(c)(1)(C), for an order striking the expert report of Mark D. Lerner, PhD. Alternatively, Defendants requested the Court award Defendants’ expenses which may be incurred to counter Lerner’s opinions, including any costs
    Defendants incur in connection with taking Lerner’s deposition.

    Plaintiff e-mailed Defendants a copy of a Confidential Psychological Report prepared by Lerner who was also expected to testify concerning Plaintiff’s alleged psychological and emotional distress Plaintiff suffered as a result of the alleged discriminatory conduct of Defendants. According to the report, Lerner examined Plaintiff on December 9, 2023 and issued the report on December 10, 2023.

    Plaintiff’s opposition is based on Plaintiff’s assertion that a dispute between Plaintiff’s counsel and one of Plaintiff’s other expert which “resulted in [a] delay of production of the expert report” does not warrant striking Lerner’s report and preclusion.

    Psychology Expert Witness

    Mark D. Lerner, Ph.D. is a clinical and forensic psychologist with over 35 years of experience helping people through challenging times. He sees individuals, couples, and families in his office in Melville, New York, and works with clients virtually online.

    Moreover, as chairman and CEO of The National Center for Emotional Wellness, Inc., Lerner provides practical information, training, and support for organizations, corporations, educational institutions, healthcare providers, and emergency responders worldwide.

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

    Discussion by the Court

    The Court held that this reason for non-compliance fails to explain why Plaintiff’s counsel failed to secure a different psychological expert, presumably Lerner, prior to the deadline for Rule 26(b)(2) expert disclosure.

    To begin with, Plaintiff’s delay is not harmless as failing to strike Lerner’s report and preclude his expert testimony would necessitate granting Defendants an opportunity to secure a rebuttal expert who would need to interview Plaintiff thereby further prolonging the trial. Specifically, Lerner’s testimony would be limited to the question of Plaintiff’s damages, not Defendants’ liability, and, as such, is not critical to Plaintiff’s case. Moreover, the Defendants will be severely prejudiced by having the jury hear unrebutted expert testimony that Defendants’ racial slurs caused Plaintiff to suffer emotional distress.

    Finally, the Court saw that Plaintiff also failed to establish good cause required by Rule 16(b), for excusable neglect.

    Defendants also requested the Court, pursuant to Rule 37(c)(1)(A), award Defendants’ expenses in connection with taking Lerner’s deposition, or alternatively, pursuant to Rule 16(f) or Rule 37(c)(1)(A), Defendants’ expenses incurred in connection with bringing the instant motion.

    The Court decided that responsibility for the late service of Lerner’s report is solely attributable to Plaintiff’s counsel’s complete disregard of the deadline for service of Plaintiff’s expert report. Therefore, such responsibility should be assigned to Plaintiff’s counsel, Seamus P. Barrett, Esq. and the Derek Smith Law Group, PLLC, and not Plaintiff, should the Court award Defendants’ attorneys fees incurred in making the instant motion pursuant to Rule 16(f)(1)(C).

    Held

    The Court granted the Defendants’ motion to strike and preclude the report of Plaintiff’s expert Mark D. Lerner.

    Key Takeaways:

    The party that failed to comply with its discovery obligations bears the burden of proving that its failure was both substantially justified. Plaintiff’s delay is not harmless as failing to strike Lerner’s report and preclude his expert testimony would necessitate granting Defendants an opportunity to secure a rebuttal expert who would need to interview Plaintiff thereby further prolonging the trial.

    Moreover, harmlessness means an absence of prejudice. However, Defendants will be severely prejudiced by having the jury hear unrebutted expert testimony that Defendants’ racial slurs caused Plaintiff to suffer emotional distress

    Case Details:

    Case Caption: Mills V. Steuben Foods, Incorporated Et Al
    Docket Number: 1:19cv1178
    Court: United States District Court, New York Western
    Order Date: September 18, 2024
  • Accident Reconstruction Expert Barred From Testifying Due to Surprise Opinions

    Accident Reconstruction Expert Barred From Testifying Due to Surprise Opinions

    Elmedin Tinjak has been a life-long cyclist. On June 20, 2020, the carbon fiber fork of his brand-new Bianchi bicycle failed, causing him to crash face-first on the pavement. Tinjak was taken to Riverside Methodist Hospital, where he was treated for a concussion, chest contusions, a fractured vertebra, and multiple complex facial lacerations. 

    The injuries Tinjak sustained that day continue to affect him. He struggles to do things he was once able to do, such as ski and play golf. He can no longer ride his bike for long periods of time, play sports with his kids for long periods of time, or stand for more than 30-45 minutes. The Tinjaks filed suit against the against the bike’s manufacturer, Cycleurope USA, Inc. dba Bianchi USA., seeking damages for economic and non-economic loss suffered as a result of the crash.

    The Tinjaks sought to exclude Greg Dubois as an expert witness for failure to comply with the expert disclosure requirements. 

    Accident Reconstruction Expert Witness

    Greg DuBois manages the Materials and Product Testing Department of CTL Engineering and provides consulting services in the areas of failure analysis, accident reconstruction and product testing.

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

    Discussion by the Court

    Courts within the Sixth Circuit consider five factors to determine whether a party’s noncompliant disclosure was harmless or substantially justified:

    (1) Surprise to the party against whom the evidence would be offered;

    (2) Ability of that party to cure the surprise;

    (3) Extent to which allowing the evidence would disrupt the trial;

    (4) Importance of the evidence; and

    (5) Non-disclosing party’s explanation for its failure to disclose the evidence.

    Bianchi does not address any of the above mentioned factors; instead, it stresses that the Tinjaks knew Dubois had been retained as an expert as early as August 2020.  Although Bianchi asserted that its counsel “was of the impression that [Dubois’s December 18, 2020 report] had been supplied to Plaintiff counsel prior to [his] involvement in the litigation,” it offered no facts that would justify counsel’s mistaken impression.

    The Court’s own consideration of the five factors leads it to conclude that Bianchi’s noncompliance with the expert disclosure requirements of Rule 26(a) and the Court’s Preliminary Pretrial Order was neither harmless nor substantially justified. First, the Tinjaks were surprised by the substance of Dubois’ opinions, even if they were not surprised by his identity. Second, because the opinions were disclosed after the discovery period closed, the Tinjaks were unable to cure the surprise. Third, allowing Dubois’ opinions would fairly require the Court to re-open discovery in this years-old case. Fourth, although the underlying facts are such that expert testimony would likely be very important, Bianchi offers the Court no insight into the substance of Dubois’ primary opinions. And finally, Bianchi’s earlier-discussed explanation for its failure to comply is grossly insufficient.

    Held

    The Court excluded Greg Dubois as an expert witness for failing to comply with the expert disclosure requirements. 

    Key Takeaway:

    Expert disclosures go beyond just the expert’s identity; a party must also disclose the expert’s written report. When a party fails to comply with Rule 26(a)’s expert disclosure requirements, Rule 37(c) precludes the noncompliant party from using the “information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” The party seeking to avoid the Rule 37(c) sanction—here, Bianchi—bears the burden of showing that its failure to comply with the expert disclosure requirements was harmless or substantially justified. However, Bianchi’s explanation for its failure to comply is grossly insufficient.

    Case Details:

    Case Caption: Tinjak Et Al V. Bianchi Usa Inc/Cycleurope Usa Incs Et Al
    Docket Number: 2:22cv2853
    Court: United States District Court, Ohio Southern
    Order Date: September 16, 2024
  • Economics Expert Witness Employs a “Before and After” Methodology to Quantify Plaintiff’s Damages

    Economics Expert Witness Employs a “Before and After” Methodology to Quantify Plaintiff’s Damages

    This action arises out of an alleged October 22, 2016 arrest and subsequent criminal prosecution of Plaintiff, which concluded with Plaintiff’s conviction for misdemeanor battery upon Officer Ermeri.

    On October 20, 2020, Plaintiff Richard John Lucibella (“Lucibella”) filed a nine-count complaint in state court against Officer Richard Ermeri (“Ermeri”), Officer Savino (“Savino”), and the Town of Ocean Ridge (“the Town”).

    Defendants filed a motion to strike a supplemental report provided by Fishkind, arguing that Plaintiff cannot establish substantial justification for the untimely disclosure, that the disclosure constitutes unfair surprise, and that the disclosure is inherently harmful.

    Defendants also filed a Daubert motion to exclude testimony and opinions of Plaintiff’s purported expert witness, Henry Hank Fishkind. The crux of the motion to exclude Fishkind’s opinion testimony contended that he did not have the qualifications and experience necessary to render expert opinions on health care economics and that his methodology is neither reliable nor helpful to the jury. 

    Economics Expert Witness

    Henry Hank Fishkind is widely regarded as one of Florida’s premier economists and financial advisors. Fishkind’s career began in the public sector where he worked as an economist and associate professor at the University of Florida. In 1980, Fishkind became the associate director for programs at the University of Florida’s Bureau of Economic and Business Research. During his tenure at the university, Fishkind served from 1979-1981 on the governor’s economic advisory board. He began his career as a private sector consultant when he became president of M.G. Lewis Econometrics in Winter Park, Florida. In 1988, Fishkind formed Fishkind & Associates, Inc. as a full service economic and financial consulting firm.

    He has a Ph.D. in economics with specialties in Urban and Regional
    Economics and in Econometrics.

    Want to know more about the challenges Henry Hank Fishkind has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Defendants’ Motion To Strike Plaintiff’s Untimely Expert Disclosure

    The Court held that Fishkind was justified in providing the late-disclosed November Report because he did not have the necessary information, which was disclosed by Defendants after Fishkind’s initial report disclosure.

    The remainder of Fishkind’s November Report consisted of information that district courts in the Southern District of Florida have deemed admissible routinely. 

    Fishkind informed Defendants in his deposition that he would need to produce a supplemental report, and Fishkind’s tardy disclosure was justified based on the aforementioned difficulties with obtaining information, documents, and deposition testimony.

    The Court found that the untimely disclosure of Fishkind’s November Report was substantially justified, harmless, and that Defendants are not unfairly prejudiced by the untimely disclosure—thereby satisfying Rule 37‘s admissibility standard.

    Defendant’s Motion To Exclude The Testimony And Opinions Of Hank Fishkind

    Qualifications

    Defendants argued that Fishkind is not qualified to testify with respect to the subject-matter proffered by Plaintiff. The Court disagreed. Fishkind reviewed thousands of pages of financial and other records in this case.

    While Defendants argued that Fishkind lacked the qualifications and experience necessary to render opinions about health care economics, the Eleventh Circuit has allowed expert testimony in similar situations.

    Reliability and Helpfulness

    Fishkind used a “before and after” methodology to quantify Lucibella’s economic damages. 

    In calculating economic damages using the “before and after” method, Fishkind measured other factors such as economic considerations, regulatory changes, and Centers for Medicare & Medicaid Services policy changes, all of which could have explained the deterioration of the financial performance of Lucibella’s business outside of the impacts stemming from alleged wrongful acts. Fishkind’s report also supplied methodology explaining how he calculated the deterioration in risk rating of Lucibella’s business. 

    The Court found that most of the facts and/or data that Fishkind relied upon in calculating economic damages are the kind of information that economic experts would reasonably rely on in their field of expertise and in accordance with Federal Rule of Evidence 703.

    The Court, however, held that Fishkind’s report contains two specific opinions that are not rooted in well-established and reliable methodology and are therefore inadmissible. Fishkind merely relied on Lucibella’s own statements, never quantified the impact of Lucibella’s defense on the management of his business, and never quantified the amount of time that Lucibella devoted to his defense. 

    Finally, as it relates to the remaining claims in this matter—excessive force (Count II) and unlawful search of property (Count VII)—the Court found a sufficient nexus between the alleged acts from the date of the subject incident, the State of Florida disqualifying Lucibella from employment with State-licensed healthcare providers and the State’s Medicaid Program, and Fishkind’s economic calculations.

    Held

    The Court granted in part and denied in part the Defendant’s Daubert motion to exclude testimony and opinions of Plaintiff’s purported expert witness Hank Fishkind.

    Key Takeaway:

    • Fishkind’s expert report utilized metrics such as (1) risk rating impact and (2) reduction in growth rate to quantify his “before and after” methodology. The Court found Fishkind’s reasoning and usage of the “before and after” methodology sufficient to withstand Daubert scrutiny.
    • In calculating economic damages using the “before and after” method, Fishkind reviewed tax returns for Lucibella’s umbrella company along with detailed profit/loss statements for the underlying businesses. Additionally, Fishkind analyzed financial documents from 2012 to 2020 related to Lucibella’s businesses.
    • Fishkind’s damages opinion that relies upon the economic impact of the State’s disqualification is admissible—provided that sufficient facts are adduced and found at trial to support the existence of the alleged acts, the disqualification of Lucibella’s business, and causation that connects them.

    Case Details:

    Case Caption: Lucibella V. Town Of Ocean Ridge Et Al
    Docket Number: 9:20cv82156
    Court: United States District Court, Florida Southern
    Order Date: August 13, 2024
  • Criminal Law Expert Witness’ Disclosure Fails to Comply with Rule 16 Requirements with Respect to Three Bullet Points

    Criminal Law Expert Witness’ Disclosure Fails to Comply with Rule 16 Requirements with Respect to Three Bullet Points

    In a white-collar criminal case where Defendants were charged with conspiracy to commit securities fraud and wire fraud in a pump-and-dump scheme through a publicly traded company, Defendants Paul Spivak and Olga Smirnova filed a motion to exclude the testimony of Peter Melley under Rule 16 of the Federal Rules of Criminal Procedure. Melley is an expert the United States proffered.

    The disclosure contains a paragraph stating that the United States “anticipates that Melley will provide summary testimony regarding trading in U.S. Lighting Group, Inc. . . . , including USLG’s publicly reported trading prices and volumes, USLG blue sheet data, USLG press releases, online promotional campaign materials, and transfer share records that have been produced in discovery.”

    Criminal Law Expert Witness

    Peter Melley serves as the Director of the Criminal Prosecution Assistance Group the Financial Industry Regulatory Authority (also known as FINRA). He assists in investigations and the preparation of criminal indictments pertaining to securities fraud, money laundering, tax evasion, and other white-collar crimes for the Offices of the United States Attorney, Federal Bureau of Investigation, Internal Revenue Service, U.S. Postal Inspection Service, and local district attorney’s offices throughout the nation.

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

    Discussion by the Court

    Analysis

    The Court held that of the 17 bullet points summarizing Melley’s testimony, the first 11 and last 2 are definitions and provide helpful background for the jury. These bullets provide sufficient notice of the opinions and testimony the United States intends to elicit from Melley on these subjects.

    The remaining 4 bullet points focus on pump-and-dump schemes and have greater consequence for this trial. While the first is akin to to the 13 just discussed and more or less defines pump-and-dump schemes, the other three bullets do not identify any basis for the opinions stated on these topics. Nor does the disclosure do so elsewhere. Rule 16 requires disclosure of the bases for opinions to allow for adequate pretrial preparation and evaluation of whether to file a motion under Rule 104 challenging the reliability or methodology of an expert’s opinions under Rule 702. The Court held that the Melley disclosure fails to comply with the Rule 16 requirements with respect to these three bullets.

    As for the paragraph mentioned earlier which discloses that Melley will provide summary testimony regarding USLG trading, the United States recently provided the summary charts and graphics referenced in that paragraph, which provides notice of the summary testimony regarding which Melley will testify.

    But even with these charts and graphics, the Court held that the disclosure fails to state what opinions Melley has or will offer about the USLG trading data.

    Remedy

    Rule 16(d)(2) allows the Court to fashion an appropriate remedy, which could permit additional discovery or inspection, grant a continuance, exclude the evidence, or “enter any other order that is just under the circumstances.” Under the Rule, the Court has broad discretion. 

    Defendants sought exclusion of Melley’s testimony, specifically asking that “the Court exclude Melley’s testimony and prohibit the Government from offering him as an expert at trial.” While the United States argues that a less severe sanction is proper “such as requiring the government to amend its disclosure,” it acknowledges that at this point in time, on the eve of trial, “the government’s ability to cure any alleged defects in its disclosure” is “virtually eliminated.”

    The Court considered a lesser remedy, including further disclosure and discovery. But there is no time before trial to allow Defendants to prepare to meet such testimony, which might take weeks or longer. Under the circumstances, limiting expert opinion in these few areas balances prejudice to the parties and the requirements of the new Rule 16 expert disclosure regime.

    Held

    The Court granted in part and denied in part the Defendants’ motion to exclude the testimony of Peter Melley.

    Key Takeaway:

    Effective December 1, 2022, Rule 16(a)(1)(G) mandates that the United States make an expert disclosure that includes as relevant here, first, “a complete statement of all opinions that the government will elicit from the witness,” and, second, “the bases and reasons for” the opinions. The advisory committee note to the amendment makes clear that the first requirement does not require a verbatim recitation of an expert’s anticipated testimony.

    This amendment was based on Civil Rule 26(a)(2) and largely, but not entirely, imported from civil practice involving expert disclosures. One important aspect of expert practice in civil cases not included in the amendment to Rule 16 is the self-executing sanction of exclusion for failure to make the required disclosures. Instead, Rule 16(d)(2) gives the Court discretion to fashion an appropriate remedy under the circumstances.

    Case Details:

    Case Caption: USA V. Spivak, et al.
    Docket Number: 1:21cr491
    Court: United States District Court, Ohio Northern
    Order Date: August 12, 2024
  • Insurance Expert Witness’ Testimony About the Industry Norms and Customs of the Insurance Adjustment Process Admitted

    Insurance Expert Witness’ Testimony About the Industry Norms and Customs of the Insurance Adjustment Process Admitted

    This claim arises from 2B’s negligent handing of an auto insurance claim brought by Harold and Milagros Lacey against GoAuto insureds, Alisha and Kayranasia Hill resulting from a motor vehicle accident in Panama City Beach, FL on July 31, 2020 (the “Lacey Claim”). GoAuto is a Louisiana-based insurance company that writes policies in Louisiana, Texas, Ohio, and Nevada and whose senior claim adjusters are not licensed in the state of Florida. GoAuto therefore engaged 2B to handle the adjustment of this Florida-based claim.

    The parties, Plaintiff GoAuto and Defendant 2B Claims, each moved to exclude opposing expert witnesses. GoAuto filed a motion to exclude the expert testimony of Kelly Gray while 2B Claims filed a motion to strike expert witness Susan Kaufman based on GoAuto’s untimely disclosure.

    Insurance Expert Witnesses

    Kelly Kathleen Gray is an attorney licensed to practice law in the State of Florida since 1993. During the past thirty years, she has focused her practice on insurance coverage and extra-contractual matters, both as a litigation attorney and as a corporate claims attorney. This includes first-party property litigation. In addition, she has several years of experience litigating various types of personal injury matters, including catastrophic automobile accidents, construction defect litigation, and professional liability.

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

    Susan Kaufman has been retained as a claim handling expert or consultant in jurisdictions across the United States, including cases in Colorado, Florida, Kentucky, South Carolina, Utah, South Dakota, Indiana, Wyoming, Illinois, Nevada, Washington, and Arizona. She has given testimony as an expert in insurance claim practices on 80 or more occasions in state or federal court. She is presently a Florida Licensed All Lines Adjuster (620), and she has held such license since 1986.

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

    Discussion by the Court

    Kelly Gray

    GoAuto did not challenge Gray’s qualifications. Instead, it argued her testimony would not assist the jury for three reasons: it focused on irrelevant facts, did not articulate an objective industry standard, and constituted legal argument rather than expert opinion.

    As to relevance, GoAuto argued Gray’s differentiating between a third-party administrator (TPA) and independent adjuster (IA) is a “red herring” since “the crux of this case is not whether 2B’s relationship with GoAuto was that of an IA or that of a TPA, but whether 2B made negligent misrepresentations to GoAuto on proper Florida claims handling.” But regardless of “the crux” of the case, the Court held that the nature of the parties’ relationship (which is disputed) is relevant in determining what duties were owed. And to the extent GoAuto argued Gray was wrong about the relationship, that is a question for the jury.

    Next, GoAuto argued Gray did not articulate an objective, industry standard—that she provided only general statements of a professional standard without clearly defining it. But, the Court found that Gray described industry norms and customs of the insurance adjustment process that are “beyond the understanding of the average layperson.”

    GoAuto claimed Gray did little more than summarize the record and make legal conclusions that usurped the jury’s role.  Gray opines about the different relationships within the insurance industry, what the standards are for those relationships, and whether 2B Claims’ conduct was consistent with those standards, which, according to the Court, are admissible opinions.

    Susan Kaufman 

    2B Claims moved to strike expert witness Susan Kaufman based on GoAuto’s untimely disclosure. The expert disclosure deadline had been April 30, 2024. 2B Claims had served its expert disclosure by that deadline, but GoAuto had not. GoAuto disclosed Kaufman as a rebuttal expert witness on May 30. The parties disputed whether Kaufman was a true rebuttal witness and whether the disclosure had been timely.

    The Court held that the rule-breaking party has the burden to show its failure to disclose was harmless. Here, GoAuto has shown that the delay is harmless. As GoAuto argues, the disclosure came a month before the close of discovery and several months before trial, leaving ample time for discovery and trial preparation with the new information. Indeed, 2B Claims does not appear to contend that the disclosure’s timing prejudices it, but rather that the testimony itself is harmful. 

    Held

    The Court denied both motions to exclude the testimony of Kelly Gray and Susan Kaufman.

    Key Takeaways:

    • According to Rule 704, the fact that expert testimony may “embrace[] an ultimate issue” does not, in itself, make the testimony inadmissible. Gray opines about the different relationships within the insurance industry, what the standards are for those relationships, and whether 2B Claims’ conduct was consistent with those standards. 
    • Gray described industry norms and customs of the insurance adjustment process that are “beyond the understanding of the average layperson.”
    • The expert disclosure deadline had been April 30, 2024. 2B Claims had served its expert disclosure by that deadline, but GoAuto had not. GoAuto disclosed Kaufman as a rebuttal expert witness on May 30. As GoAuto argues, the disclosure came a month before the close of discovery and several months before trial, leaving ample time for discovery and trial preparation with the new information.

    Case Details:

    Case Caption: Goauto Insurance Company V. 2b Claims Services, Inc.
    Docket Number: 5:23cv188
    Court: United States District Court, Florida Northern
    Order Date: July 18, 2024
  • Petroleum Engineering Expert Witness’ Testimony Admitted Because his Supplemental Report Does Not Rely on New Information

    Petroleum Engineering Expert Witness’ Testimony Admitted Because his Supplemental Report Does Not Rely on New Information

    Plaintiff sued Berry Petroleum Company for injuries incurred while pumping oil for transport as a crude oil truck driver for Savage Industries Inc. In both the initial disclosure and the supplemental disclosure at issue here, Plaintiff designated Edward R. Ziegler as an “oil field, oil tank and oil tank’s ‘thief hatch’ safety expert as to all relevant safety issues involved in this injury incident.”

    Berry agreed that Plaintiff complied with the deadlines concerning Ziegler’s initial disclosures and report. Ziegler’s deposition was taken December 16, 2022. Per the fifth amended scheduling order, expert discovery closed January 29, 2024. On April 12, 2024, Plaintiff filed his Second Supplemental Expert Reports containing an updated expert report from Ziegler. Berry moved the Court to exclude this updated report on the grounds that it is untimely and that the delay was not substantially justified or harmless.

    Petroleum Engineering Expert Witness

    Edward R. Ziegler is a petroleum and natural gas engineer with a law degree. He is also a registered Professional Engineer (Texas and Wyoming), a Certified Safety Professional (C.S.P.), and has been trained several times as an OSHA 500-series instructor. Currently, Ziegler is the American Society of Safety Engineers’ appointee to the ANSI Z49.1 welding and cutting safety committee, and he has served on other industry safety committees.

    Besides, his diverse, international background includes oilfield, safety, pipeline, and construction employment. Particularly, he has extensive oilfield experience in drilling, completion, production, reservoir, and construction engineering—both onshore and offshore.

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

    Discussion by the Court

    Under Fed. R. Civ. P. 37(c)(1), “if a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information . . . unless the failure was substantially justified or is harmless.”

    Berry argued that “it will undoubtedly be prejudiced” if the report is not excluded and that this prejudice cannot be cured. Berry claimed that it will be prejudiced by increased costs, arguing that it will have to conduct a second Ziegler deposition, pay for its own experts to review the supplemental report, and the amount of prejudgment interest will be increased by delaying trial. The Court did not find this persuasive. Berry conceded that the supplemental report does not rely on new information, and further, there is no trial date set.

    Next, Berry argued that the supplemental report will disrupt the trial because it will further delay the trial. As there is not yet a trial date set, the inclusion of the supplemental report does not disrupt the trial setting. Accordingly, the Court found that this factor did not weigh in favor of exclusion.

    Finally, Berry argued that the untimely disclosure was willful because Plaintiff had waited so long to produce it. Berry also asserted that Plaintiff was using this supplemental report to add additional opinions or reinforce opinions already presented in the original report. They did not cite any part of the report to support this assertion. Berry also objected to Plaintiff’s explanation as to why he had filed the supplemental report. The Court did not need to consider Plaintiff’s explanation in finding that this factor did not weigh in favor of exclusion. Berry did not present evidence that suggested bad faith or willfulness by Plaintiff.

    Held

    The Court denied Defendant Berry Petroleum Company, LLC’s motion to exclude Plaintiff’s second supplemental expert reports containing an updated expert report from Edward Ziegler.

    Key Takeaway:

    Berry conceded that the supplemental report does not rely on new information, and further, there is no trial date set. As there is not yet a trial date set, the inclusion of the supplemental report does not disrupt the trial setting. In conclusion, the Court found that Berry did not present evidence that suggested bad faith or willfulness by Plaintiff.

    Case Details:

    Case Caption: Skinner V. Berry Petroleum Company Et Al
    Docket Number: 1:19cv124
    Court: United States District Court for the District of Utah, Central Division
    Order Date: July 31, 2024
  • Law Enforcement Expert Witness’ Supplemental Report on Deviation from Police Practices Admitted

    Law Enforcement Expert Witness’ Supplemental Report on Deviation from Police Practices Admitted

    Plaintiff Kevin Strickland filed this lawsuit against the Kansas City, Missouri, Board of Police Commissioners and five Kansas City police officers for alleged unconstitutional conduct that resulted in his wrongful conviction.

    On June 21, 2024, Plaintiff issued its police practices expert, Russell Fischer’s supplemental report. The supplemental report is 2.5 pages long, and the revisions are made based on three third-party deposition transcripts that Fischer states were not available to him at the time of his initial report dated April 5, 2024. The relevant deposition transcripts are those of Pete Edlund (deposed on April 3); Alfred Gordon (deposed on May 13); and Bridgett Gordon (deposed on May 13). Pete Edlund was a KCPD homicide detective who investigated the 1978 triple homicide. Alfred and Bridgett Gordon were both interviewed by the KCPD during the triple homicide investigation.

    Defendants moved to strike the supplemental report, arguing it contained new opinions untimely disclosed in violation of Rule 26(e).

    Law Enforcement Expert Witness

    Russell Fischer retired as the Chief of the Criminal Investigations Division specifically in charge of all investigative matters relating to homicide, robbery, sex crimes, domestic crimes and related functions task force operations.

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

    Discussion by the Court

    The Court held that the parties’ pretrial disclosures under Rule 26(a)(3) were not yet due, so the issue was whether the Supplemental Report contained “entirely new opinions” as Defendants alleged or rather newly discovered information that merely “completed” the initial report. To begin with, Defendants failed to provide specific examples of how the Supplemental Report provided “entirely new opinions,” and the Court found none. Both reports opined on whether officers deviated from minimally acceptable police practices during the homicide investigation. The Supplemental Report merely considered Alfred and Bridgett Gordon and Pete Edlund’s version of events in opining on the same.

    Defendants also took issue with the fact the Supplemental Report was disclosed after the discovery deadline passed and after Defendants’ deadline to depose Fischer. While the timing was not ideal, Plaintiff maintained two of the three deposition transcripts were not available until the day discovery closed, making it impossible to provide the Supplemental Report beforehand. Plaintiff also added that Defendants have never attempted to take Fischer’s deposition to date.

    The Court denied the Defendants’ motion since finding supplementation will best serve the purposes of Rule 26.

    To ensure Defendants were not disadvantaged in any way, the Court permitted Defendants to depose Fischer out of time.

    Held

    The Court denied the Defendants’ motion to strike as untimely and improper the supplemental report of Plaintiff’s expert witness, Russell Fischer.

    Key Takeaway:

    Rule 26(e)(1) provides that “a party who has made a disclosure under Rule 26(a) must supplement or correct its disclosure in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” 

    However, Rule 26(e) does not provide a vehicle for parties to merely “revise or change its disclosures,” “to bolster an expert’s opinion,” or “to present entirely new theories.”

    Case Details:

    Case Caption: Strickland V. Kansas City, Missouri Board Of Police Commissioners Et Al
    Docket Number: 4:23cv313
    Court: United States District Court, Missouri Western
    Order Date: July 19, 2024
  • Court refuses to exclude Pharmaceutical Expert Witness’ Opinions Regarding Breadth of Asserted Claims

    Court refuses to exclude Pharmaceutical Expert Witness’ Opinions Regarding Breadth of Asserted Claims

    A district judge in Florida refused to exclude the testimony of a pharmaceutical expert witness despite allegations of fundamental flaws in the assumptions on which her calculations are based.

    Defendant Aveva Drug Delivery Systems, Inc. of an Abbreviated New Drug Application (“ANDA”) No. 217221 to the U.S. Food and Drug Administration (“FDA”) sought approval to manufacture and sell a Lidocaine Topical System, 1.8% product (“Defendants’ ANDA Product”), a generic version of Scilex Pharmaceuticals Inc.’s ZTLIDO® (lidocaine topical system) 1.8% (“ZTlido®”), prior to the expiration of U.S. Patent Nos. 9,283,174 (the “’174 patent”), 9,925,264 (the “’264 patent”), and 9,931,403 (the “’403 patent”) (collectively “the Asserted Patents”).

    Plaintiffs alleged that the Defendants’ ANDA Product will be marketed as a generic competing product to ZTlido®, a product developed by Plaintiffs for the relief of pain associated with post-herpetic neuralgia (PHN) in adults.

    This patent infringement arises from Aveva’s notification to Scilex Pharmaceuticals Inc. by Notice Letter dated May 10, 2022, that it had filed an Abbreviated New Drug Application (“ANDA”) No. 217221.

    Defendant Aveva proffered expert witness Dr. Maureen Donovan who stated that that the claims of the Asserted Patents were extremely broad, and therefore that they were not enabled because it would require undue experimentation to practice the claims.

    Plaintiffs filed a motion to strike Donovan’s opinions and analysis regarding the breadth of the asserted claims from consideration at the bench trial in this case. Plaintiffs also accused her of improper supplementation and bolstering under Rule 26 in a separate motion.

    Pharmaceutical Expert Witness

    Maureen Donovan is a Professor of Pharmaceutical Sciences and Experimental Therapeutics at the University of Iowa College of Pharmacy. Donovan holds a Ph.D. in Pharmaceutics from the University of Minnesota College of Pharmacy and has over forty years of experience conducting research and consulting with companies in the field of pharmaceutical sciences.

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

    Discussion by the Court

    Rule 702

    Plaintiffs argued that Donovan’s exemplary calculations, analysis of the breadth of the claimed concentration ranges, and her opinions relying thereon did not meet the requirements of Rule 702. Plaintiffs added there were fundamental flaws in the assumptions on which her calculations are
    based.

    As to experience and qualifications, Plaintiffs did not contend that Donovan was not sufficiently qualified to offer her proffered opinions in this case.

    The Court determined that the proper remedy for any potential weaknesses identified is vigorous cross-examination and confrontation. In other words, Plaintiffs were not precluded from challenging the reliability of Donovan’s opinions at the bench trial. In conclusion, the Court may disregard any expert testimony at trial, if it “turns out not to meet the standard of reliability established by Rule 702.”

    Rule 26

    In a separate motion, Plaintiffs alleged that Donovan altered her written opinion to better align her opinion with another expert’s findings.

    Donovan, having discovered an error in her calculations, was required to correct her findings. Defendants argued that the corrections favored Plaintiffs’ position.

    The Court held that the revisions were both substantially justified and
    harmless. The Defendants filed Donovan’s amended report well before the 30-day deadline contemplated for pretrial disclosures under Rule 26(a)(3). The Court, therefore, denied Plaintiffs’ arguments on the grounds
    that any violation, should one exist, was substantially justified under the circumstances. Moreover, Defendants have both offered Plaintiffs the opportunity to re-depose Donovan and will not oppose supplemental reports from Plaintiffs’ expert.

    The Court added that the decision not to exclude Donovan’s corrected report in no way prevented Plaintiffs from vigorously cross-examining her on her alleged mistakes.

    Held

    The Court denied both motions to exclude the testimony of Defendants’ expert Maureen Donovan.

    Key Takeaway:

    The Court determined that the proper remedy for any potential weaknesses identified is vigorous cross-examination and confrontation. In other words, Plaintiffs were not precluded from challenging the reliability of Donovan’s opinions at the bench trial and the decision not to exclude Donovan’s corrected report in no way prevented Plaintiffs from vigorously cross-examining her on her alleged mistakes.

    Case Details:

    Case Caption: Scilex Pharmaceuticals, Inc. Et Al V. Aveva Drug Delivery Systems, Inc., Et Al
    Docket Number: 0:22cv61192
    Court: United States District Court, Florida Southern
    Order Dates: May 15, 2024 and May 23, 2024

  • Accounting Expert Witness’ Analysis of Costs and Markups Admitted

    Accounting Expert Witness’ Analysis of Costs and Markups Admitted

    The Trade Group’s (“TTG”) is a full-service event marketing and creative design firm well known for its award-winning designs and client-centered service mentality. BTC Media, LLC (“BTCM”), a Bitcoin and blockchain media company approached TTG about managing, planning, and producing Bitcoin 2021, the world’s largest bitcoin conference held in Miami, Florida.

    After a successful Bitcoin 2021, BTCM enlisted TTG’s services again in connection with Bitcoin 2022, but on a much larger scale. This case centers around a dispute between TTG and BTC over the financial ramifications of their business interactions, particularly surrounding the Bitcoin 2022 event. At the heart are disagreements over alleged overcharges and lost profits in planning and hosting Bitcoin 2022 in Miami.

    TTG sought to exclude the expert testimonies of BTC CEO David Bailey and CFO Didier Lewis as well as Dr. Kelly Semrad and Gary Durham for various reasons.

    Accounting Expert Witness' Analysis of Costs and Markups Admitted

    Accounting Expert Witness 

    Gary Durham has been assisting clients with economic damages calculations, valuation, forensic accounting, financial forecasting, and financial issues in bankruptcy since 1993. Durham’s considerable experience preparing expert witness testimony includes damage calculations and other valuation-related financial analysis.

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

    Tourism And Travel Industry Expert Witness

    Dr. Kelly Martinez Semrad, currently serves as a faculty member at the University of Central Florida (UCF) in the Rosen College of Hospitality Management. She is the former associate director for the University of Florida’s Eric Friedheim Tourism Institute. She has also helped provide policy for tax reform and economic structural adaptations as well legislation for social and environmental justice in the tourism and hospitality industry.

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

    Cryptocurrency Expert Witness

    David Bailey is an early bitcoin adopter, entrepreneur, and a prominent figure in the Bitcoin community. He is also the CEO of BTC Media, which includes Bitcoin Magazine and the Bitcoin conference, as well as UTXO. 

    Efficiently evaluate if investing further resources into vetting David Bailey is merited based on the findings in our Preliminary Screening Report.

    Finance Expert Witness

    Didier Lewis is the Finance Director of BTC Media, LLC (“BTC”). As Finance Director, he also has oversight of BTC’s finances, including its accounts receivable, accounts payable, and invoices payable to BTC’s vendors.

    Start your due diligence on Didier Lewis quickly and affordably by first reviewing key insights in our Preliminary Screening Report.

    Discussion by the Court

    A. Gary Durham

    TTG sought to exclude Durham’s testimony on the grounds that it was unreliable and irrelevant.

    According to TTG, Durham’s opinions were based on incomplete information given Durham’s role was to verify the costs TTG claims it incurred and to assess the reasonableness of those costs. Although Durham had multiple opportunities to review TTG’s documents, TTG argued that he failed to accurately compile the costs, thereby rendering his opinions unreliable.

    The Court found that while Durham’s methodology, like most, could have possessed flaws, it was sufficiently reliable for the purposes of expert testimony. Durham reviewed numerous documents and provided a detailed analysis of the costs and markups. His methodology involved a thorough examination of TTG’s invoices and other financial records, and he explained the basis for his conclusions. Any perceived deficiencies in his methodology went to the weight of his testimony, not its admissibility.

    The Court held that highlighting the potential disconnect between TTG’s Google Sheet entries and the underlying accounting documents was vital because it could suggest TTG’s billing practices may have been designed to obscure true charges. This made Durham’s testimony all the more reliable and relevant.

    B. Kelly Semrad

    TTG sought to exclude the testimony of Semrad on the grounds that it was unreliable and irrelevant. TTG argued that Semrad’s opinions were based on insufficient facts and data, and that she lacked the necessary expertise to opine on the reasonableness of TTG’s markups. Despite Semrad admitting that she did not have access to certain critical information, the Court held that her testimony was particularly relevant because it set a benchmark for evaluating TTG’s markups for Bitcoin 2022. 

    By comparing TTG’s charges with industry standards, Semrad provided a clear framework for the jury to assess whether TTG’s pricing was reasonable. Her testimony offered the jury a critical reference point for determining if TTG’s practices deviated from industry norms. 

    The Court found that her analysis was based on sufficient data and reliable principles, aligning with the requirements of Rule 702. 

    C. David Bailey and Didier Lewis

    TTG sought to exclude the expert testimony of BTC’s CEO, David Bailey, and CFO, Didier Lewis, on the grounds that Bailey and Lewis were untimely disclosed.

    Appealing to Federal Rule of Civil Procedure 37(c)(1), TTG argued that BTC’s failure to timely disclose these expert witnesses was neither substantially justified nor harmless, warranting exclusion of their testimony.

    Further, TTG opined that BTC made multiple representations to the Court that they did not seek to designate experts for their counterclaims, the absence of a request to extend the Initial Designation deadline was prejudicial to TTG given their late disclosure.

    However, BTC has consistently maintained that Bailey and Lewis will offer lay opinions under Federal Rule of Evidence 701, which allows business owners or officers to testify about the value or projected profits of their business based on personal knowledge. Both Bailey and Lewis have extensive firsthand knowledge of BTC’s financial operations and can provide valuable insights into the company’s lost profits.

    TTG did not dispute Bailey and Lewis’ knowledge of the company’s finances but contended that their testimony constituted expert opinion requiring timely disclosure under Rule 26(a)(2). However, BTC supplemented their disclosures to include Bailey and Lewis as expert witnesses under Rule 702, likely anticipating potential objections from TTG.

    The Court held that any prejudice to TTG was minimal, given their extensive personal knowledge and the supplemental disclosures.

    Held

    The Court denied that The Trade Group’s three motions to exclude the testimony of BTC CEO David Bailey and CFO Didier Lewis as well as Dr. Kelly Semrad and Gary Durham.

    Key Takeaways:

    • The Court found Durham’s methodology sufficiently reliable because he reviewed numerous documents and provided a detailed analysis of the costs and markups.
    • Semrad’s testimony offered the jury a critical reference point for determining if TTG’s practices deviated from industry norms. The Court held that her testimony met the requirements of Rule 702.
    • The Court held that both Bailey and Lewis’ extensive firsthand knowledge of BTC’s financial operations will assist the jury in understanding the financial impact of the alleged damages and are therefore admissible.

    Case Details:

    Case Caption: The Trade Group, Inc. V. Btc Media, Llc
    Docket Number: 4:23cv555
    Court Name: United States District Court, Texas Northern
    Date: June 5, 2024