Expert Witness Profiler

Tag: Discrimination

  • Law And Legal Expert Not Allowed to Opine on Implicit Bias

    Law And Legal Expert Not Allowed to Opine on Implicit Bias

    Plaintiff Amanda Howland brought employment discrimination claims against her former business and romantic partner Christian Kjaer and the company they operated, Ellevet Sciences Inc.

    Defendants Ellevet Sciences Inc. and Kjaer filed motions in limine seeking to exclude the testimony of Amanda Levine, Esq., PI and Charles H. Heller, Ph.D.

    Law And Legal Expert Witness

    Amanda Levine, Esq., PI is a graduate of Middlebury College and of Boston College Law School. She is licensed to practice law by the Commonwealth of Massachusetts and is licensed as a Professional Investigator by the State of Maine.

    Levine regularly conducts neutral and comprehensive workplace investigations involving allegations of harassment, discrimination and serious employment misconduct. She also serves as an outside and neutral investigator for higher education institutions in Title IX matters.

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

    Psychology Expert Witness

    Charles Harris Heller, Ph.D is a licensed psychologist who specializes in the effects of intimate partner violence. He earned his Ph.D. from the University of Wisconsin-Madison in 1979. His work experience includes: working as a clinical and forensic psychologist with inmates of various correctional facilities; working as a staff forensic psychologist at Rutgers, The State University of New Jersey, Department of Biomedical and Health Services; and performing forensic and clinical duties at East Jersey State Prison (EJSP) in Rahway, New Jersey.

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

    Discussion by the Court

    A. Testimony of Amanda Levine, Esq., PI

    Plaintiff designated Amanda Levine, an attorney and a professional investigator, to testify regarding the workplace conduct that Plaintiff experienced while working at Defendant ElleVet. Defendants contended that Levine should not be permitted to testify regarding: (1) implicit bias, (2) that women are more likely to experience harassment at work, (3) that Plaintiff was the victim of implicit bias, (4) that certain of Defendant Kjaer’s actions were discriminatory, and (5) the assessment of Defendant Kjaer’s credibility.

    There is evidently no dispute that Levine, as an attorney and professional investigator with experience in investigating complaints of employment discrimination, had the requisite experience to testify regarding the need to conduct discrimination investigations, as well as the adequacy and substance of such investigations.

    Analysis

    It should be noted that the Defendants’ concerns regarding Levine’s qualifications and specialized knowledge to testify more extensively about unconscious bias and how it might affect the Plaintiff’s claims are valid. In particular, Levine evidently lacked specialized training, experience, or research in sociology, psychology, or neuroscience that would permit her either to establish the existence of novel or contested unconscious stereotypes or biases—that is, biases not yet well established in the legal context or still scientifically disputed—or to opine on the cognitive processes that might explain such biases.

    Furthermore, even if Levine had the requisite qualifications and expertise to offer additional testimony on unconscious or implicit bias, the Court questioned whether such testimony would be helpful to the jury and whether its probative value would be substantially outweighed by the risk of juror confusion or improper reliance.

    Similarly, Levine’s proffered opinion that women are more likely to experience harassment at work, which was apparently informed by statistical evidence from studies she had read, presented similar and additional concerns. As noted above, Levine evidently had not conducted any of those studies, nor did she have specialized training or research experience in any of the relevant fields of research.

    Likewise, Levine’s opinions that the Plaintiff was the victim of implicit bias and that some of Defendant Kjaer’s acts and words were discriminatory presented the same concern. For similar reasons, Levine’s testimony regarding Defendant Kjaer’s credibility, or the factors she considered when assessing credibility, had to be excluded because it would not have been particularly helpful to the jury and would have risked misleading the jury and interfering with the Court’s instructions regarding credibility.

    B. Testimony of Charles Heller, Ph.D

    Defendants asserted that Heller’s proposed testimony involving the words “domestic violence,” “intimate partner violence,” and “domestic violence assessment,” should be excluded under Federal Rules of Evidence 402 and 403 as irrelevant and unfairly prejudicial because in the mind of a layperson, the term “violence” implies physical abuse, which was not present here.

    Plaintiff contended, however, that Heller should be permitted to use the term “violence” because, as an expert in the field, Heller considered the emotional abuse alleged here to be a form of domestic violence.

    Heller’s view is supported by others, including the American Psychiatric Association, which defines domestic violence or intimate partner violence as not only physical force, sexual acts without consent, and stalking, but also “psychological aggression,” meaning “verbal and non-verbal behaviors intended to harm emotionally or exert control.”

    While Heller’s possible reference to domestic violence and related terms generates concerns of unfair prejudice under Rule 403, at this stage, the Court cannot determine that, in all instances, the prejudice to Defendant Kjaer from the use of such terms substantially outweighs the probative value. Because the Court cannot assess all potential uses of the term outside the context of the trial, the Court defers ruling on the issue and will decide the issue at trial.

    Defendants also argued that Heller should not be permitted to opine as to the way Plaintiff felt as a result of Defendants’ conduct and whether her beliefs were reasonable, including whether Plaintiff reasonably believed that she was in imminent danger. When diagnosing a condition, a treatment provider often accepts the client’s representations as accurate in the absence of any objective evidence to the contrary. As to Heller’s assessment of Plaintiff’s condition, therefore, the Court discerns no basis for exclusion.

    Held

    • The Court granted in part the motion to exclude the testimony of Amanda Levine.
    • The Court granted in part, denied in part, and deferred in part the motion to exclude the testimony of Charles Heller.

    Key Takeaway

    The witness’ familiarity with certain statistics or studies from having read them in connection with discrimination investigations is not enough.

    Even if Levine had sufficient experience to opine based on the cases she has personally investigated, the opinion would have little, if any, relevance to the individualized assessment the jury must undertake. Such an opinion resembles a propensity argument that courts generally prohibit (i.e., because women are more likely to experience discrimination at work, Plaintiff is more likely to have experienced discrimination in this case).

    Case Details:

    Case Caption: Howland V. Ellevet Sciences Inc.
    Docket Number: 2:24cv442
    Court Name: United States District Court, Maine
    Order Date: May 22, 2026
  • Nursing Expert’s Infection Preventionist Testimony Excluded

    Nursing Expert’s Infection Preventionist Testimony Excluded

    Plaintiffs Elizabeth Combs, Thomas Johnston, Kimberly Herechberger and Michelle Boltz brought religious discrimination claims against their former employer PeaceHealth for failure to accommodate their religious beliefs in opposition to COVID-19 vaccination.

    In addition to bringing a religious discrimination claim, Boltz brought a disability discrimination claim against PeaceHealth for failure to accommodate her disability under the ADA and Oregon law.

    Defendant filed a motion to strike the testimony of Plaintiffs’ expert witness, Rose Walker Patterson, because she is “unqualified to render the opinions in her reports” and because her opinions are unreliable and irrelevant.

    Nursing Expert Witness

    Rose Walker Patterson is a Registered Nurse with a master’s degree in nursing administration—not epidemiology, virology, or infectious disease—who earned a certificate in infection control and prevention from the Certification Board of Infection Control and Epidemiology.

    From April 2017 through October 2022, Patterson worked as the Infection Preventionist and Employee Health nurse for Sky Lakes Medical Center (“SLMC”), a small, rural hospital in Klamath Falls, Oregon. Patterson was part of a committee that developed a “playbook planning for the pandemic” with which she was “heavily involved.” 

    Want to know more about the challenges Rose Walker-Patterson has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    A. Patterson is Qualified to Offer Infection Preventionist Testimony

    PeaceHealth contended that Patterson is not qualified to offer expert testimony because she lacked relevant education, training, and experience.

    Patterson is not a medical doctor and has no advanced education or training in epidemiology or in infectious diseases or any other medical field. Further, she has no research experience or publications related to COVID-19. And she has never taught at a college or university.

    Patterson, however, testified that in her role as nurse infection preventionist, she helped develop the weekly testing program at SLMC for employees with approved accommodations.

    Accordingly, the Court concluded that although Patterson is not qualified to offer scientific or medical opinion, she is qualified to offer expert testimony based on her knowledge and experience as a nurse infection preventionist at SLMC during the pandemic.

    B. Patterson’s Opinions are not Reliable

    First, Patterson’s opinions are not based on sufficient facts or data because (1) she based her opinions on an incorrect understanding of the Oregon Health Authority (“OHA”) Rule requiring all Oregon healthcare providers and staff to either be fully vaccinated against COVID-19 by September 30, 2021, absent medical or religious exception, or to “undergo COVID-19 testing at least weekly” and (2) she provided no documentation or data to support the work she claims to have done at SLMC.

    Patterson also provided no documentation for the program she claimed to have developed or implemented, and she provided no data about the clinical variables or outcomes of that program.

    The Court concluded that Patterson’s testimony is not based on sufficient facts and data because Patterson’s opinions rely on her misunderstanding of the OHA Rule and because Patterson failed to provide any underlying documentation or data to support her testimony.

    Second, Patterson’s opinions are not reliable because, in addition to failing to provide documentation and data, she also did not use reliable principles and methods to produce her opinions. In fact, Patterson did not produce her opinions at all.

    The Court concluded that Patterson did not conduct her own research, she did not undertake an independent analysis of the facts and data, and she did not author significant parts of her own Reports. Patterson’s opinions not only lacked factual basis; they also are not the product of reliable principles and methods.

    2. Patterson’s Opinions are not Relevant

    Even if Patterson’s testimony were reliable, it is not relevant. Patterson lacked the relevant facts and data to compare SLMC to PeaceHealth. Patterson testified generally about the differences between the two healthcare employers.

    She also testified that she lacked the relevant facts and data to compare PeaceHealth to SLMC. Importantly, the undue hardship standard at issue requires that an employer, when making an accommodation decision, consider the facts before them at the time the decision is made.

    Held

    The Court granted the Defendant’s motion to strike the testimony of Rose Walker-Patterson.

    Key Takeaway

    Recalling facts, data, and policy from memory without underlying documentation or data is insufficient to support expert testimony. Basically, Patterson’s testimony is neither reliable nor relevant. Patterson’s testimony is not based on sufficient facts or data, is not the product of reliable principles and methods, and failed to reflect a reliable application of the principles and methods to the facts of the case.

    Case Details:

    Case Caption: Combs V. Peacehealth
    Docket Number: 6:23cv1486
    Court Name: United States District Court for the District of Oregon
    Order Date: March 17, 2026
  • Psychiatric Expert Was Allowed to Opine on Occupational Experiences

    Psychiatric Expert Was Allowed to Opine on Occupational Experiences

    Mamnoon Khan (“Khan” or “Plaintiff”) brought this action against Sedgwick Claims Management Services, Inc. (“Sedgwick”), Kim Hottel (“Hottel”), and Colleen Van Tuyl (“Van Tuyl”) (together, “Defendants”), alleging workplace maltreatment and racial discrimination.

    Dr. Joshua Kriegel is a board-certified psychiatrist that has been treating Plaintiff since August of 2023.

    Defendants Sedgwick Claims Management Services, Inc. (“Sedgwick”), Colleen Van Tuyl and Kimberly Hottel filed a motion to disqualify Kriegel from testifying at trial as Plaintiff’s designated expert witness.

    Psychiatry Expert Witness

    Joshua Kriegel, M.D. is a board certified psychiatrist licensed in Massachusetts and faculty member at UMass Chan Medical School.

    He completed his medical degree at Boston University School of Medicine and his adult psychiatry residency at the UMass Chan Medical School.

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

    Discussion by the Court

    On the record before the Court, Kriegel appears only to have drawn the conclusion that Plaintiff suffers from PTSD related to cumulative experiences over ten years in the workplace, including, at least in part, an incident with a coworker that involved a knife.

    Kriegel’s specialized training and knowledge, his role as Plaintiff’s treating psychiatrist, and the evidence he received through his treatment of Plaintiff together appear adequate to support his expert opinion. Even if those experiences predated Plaintiff’s employment at Sedgwick, they are relevant for purposes of damages.

    On the other hand, the fact that he is Plaintiff’s treating psychiatrist did not free him of the requirements of Rule 702 of the Federal Rules of Evidence, which will govern his testimony assuming that he is admitted as an expert.

    Held

    The Court denied the Defendants’ motion to disqualify Dr. Joshua Kriegel as Plaintiff’s expert.

    Key Takeaway:

    Kriegel’s testimony is relevant and helpful to the jury. As Plaintiff’s treating physician, he is uniquely situated to provide testimony regarding Plaintiff’s symptoms and their causes.

    Case Details:

    Case Caption: Khan V. Sedgwick Claims Management, Inc.
    Docket Number: 1:22cv11893
    Court Name: United States District Court, Massachusetts
    Order Date: November 17, 2025
  • Toxicology Expert’s Testimony on Hair Follicle Testing Admitted

    Toxicology Expert’s Testimony on Hair Follicle Testing Admitted

    Plaintiff Darius Danzy filed this suit against CSX Transportation Inc. in this action under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”) alleging “unlawful employment practices on the basis of race.”

    Plaintiff’s claims arise out of a pre-employment drug-screening that Defendant administered to Plaintiff through third party drug testing companies, Psychemedics Corporation (“Psychemedics”) and Omega Laboratories, Inc. (“Omega”).

    According to the Plaintiff, Defendant discriminated against him because of his race as a “Black-African American” by subjecting him to narcotic testing that disparately impacts the “class of Black African Americans” due to the allegedly unreliable and inaccurate method of hair follicle testing used by Defendant through Psychemedics in its pre-employment drug screening.

    The Defendant retained Dr. R.H. Barry Sample to review the testing performed by Psychemedics of Plaintiff’s underarm hair specimen.

    Plaintiff sought to exclude the testimony of Sample and the hair test results provided by Psychemedics pursuant to Rules 702 and 104(a) of the Federal
    Rules of Evidence.

    Toxicology Expert Witness

    Dr. R.H. Barry Sample is a forensic toxicologist with a Ph.D. in the field of Pharmacology from Indiana University and has worked in the field of forensic toxicology for over thirty-five years.

    For over twenty years Sample worked as the Director of Science and Technology for Quest Diagnostics, “one of the largest forensic workforce (workplace) drug testing laboratory providers in the United States.” Sample served two separate four-year terms as a member of the Substance Abuse and Mental Health Services Administration (“SAMHSA”) Drug Testing Advisory Board (“DTAB”) and advised on the SAMHSA drug testing activities and laboratory certification program.

    Sample continues to serve as a commissioner and laboratory inspector for the College of American Pathologists (“CAP”) in its Forensic Drug Testing (“FDT”) accreditation program (“CAP-FDT”). Sample has been licensed or certified by various states as a laboratory director in the area of forensic workforce drug testing.

    Want to know more about the challenges R.H. Barry Sample has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    Sample opined that Psychemedics’ test results are accurate and scientifically reliable and that Omega’s test results confirmed the accuracy of Psychemedics’ test results.

    Plaintiff primarily brought a relevance-based argument that hair follicle testing itself is legally improper as this methodology is not included in the regulations of SAMHSA.

    A. Relevance

    According to the Plaintiff, SAMHSA in its 2020 Proposed Hair Guidelines explicitly excludes Benzoylecgonine (“BZE”) as a reliable confirmatory marker due to its low concentrations in hair and the absence of validated thresholds.

    Plaintiff contended that “Congress explicitly assigned SAMHSA the exclusive
    role to regulate drug testing in Federally regulated industries through the Omnibus Transportation Employee Testing Act.”

    Sample served two (2), four-year terms as a Member of the SAMHSA Drug Testing Advisory Board which advises the Assistant Secretary of SAMHSA, on the review of the direction, scope, balance, and emphasis of the SAMHSA drug testing activities and the drug testing laboratory certification program.

    The Court found that his experience provided him with unique insights into the scope and requirements of SAMHSA drug testing. Sample acknowledges that “only urine drug testing is possible under DOT rules” and that the hair sample test that Defendant undertook “is not covered by the requirements of the DOT, Federal Railroad Administration (‘FRA’), or [SAMHSA].”

    Sample noted that “neither the DOT nor SAMHSA (which the DOT relies on for technical guidelines) have published final requirements for hair testing.”

    The Omnibus Transportation Employee Testing Act of 1991 directed the Secretary of Transportation to develop regulations for the testing of employees for drugs and alcohol in four sectors of the transportation industry, including railroads.

    Notably while the statute requires that “laboratories and testing procedures for controlled substances, incorporate the Department of Health and Human Services scientific and technical guidelines,” they do not prohibit a private employer in the railroad industry from conducting additional drug testing procedures beyond those prescribed by the DOT.

    In sum, the Court held that Sample’s opinions are outside the common experience of lay persons and, therefore, explains the unique process of hair follicle testing for drug usage.

    B. Reliability

    Plaintiff’s primary objections to Sample’s report focus on its reliability. Specifically, Plaintiff contended that there is a lack of reliable, scientific evidence surrounding the use of BZE as a biomarker in hair testing.

    However, Sample provided a thorough summary of the documents he reviewed in support of his report, as well as the work he undertook in forming his opinions.

    Sample noted that both of the laboratories that tested Plaintiff’s hair follicle “are accredited under the CAP-FDT Accreditation Program for hair testing as well under the New York State Department of Health – Clinical Laboratory Evaluation Program for hair testing” and that they both hold “ISO/IEC 17025 accreditation.”

    Plaintiff’s critique did not make detailed arguments finding fault with specific elements of Sample’s methodology or approach. Rather, Plaintiff appeared to argue that because other sources, including the federal government, have allegedly come to different conclusions, Sample ’s methodologies must be flawed. The Court, however, held that Plaintiff’s objections relate to the weight to be given to Sample’s opinions, not their admissibility.

    The Court found that the Defendant has demonstrated by a preponderance of the evidence that Sample and his report satisfied the standard for expert
    scientific testimony.

    Held

    The Court denied the Plaintiff’s motion to exclude the testimony of Dr. R.H. Barry Sample.

    Key Takeaway:

    The Court’s reliability analysis focuses on the “‘principles and methodology’ employed by the expert, not on the conclusions reached.”

    In addition to his own experience, Sample explained that his opinion is based on “peer-reviewed scientific literature regarding forensic workforce drug
    testing.” Sample also cited peer-reviewed sources in support of his
    conclusions.

    Case Details:

    Case Caption: Danzy V. CSX Transportation, Inc.
    Docket Number: 5:23cv621
    Court Name: United States District Court, North Carolina Eastern
    Order Date: September 19, 2025
  • Internal Medicine Expert’s Testimony About a Reasonable Accommodation Excluded

    Internal Medicine Expert’s Testimony About a Reasonable Accommodation Excluded

    Plaintiff Taplice Stapleton filed suit against her former employer, Prince
    Carpentry, Inc., and individual Defendants Thomas Voss and John Punis. Plaintiff brought claims for unequal pay and disability discrimination. Defendant Prince Carpentry, Inc., is a drywall and carpentry subcontracting company owned by Defendant Thomas Voss. At the time of Plaintiff’s termination she was earning an annual salary of $62,000.

    Defendants filed a motion to strike the expert report of Dr. Balvindar S. Sareen. Defendants argued that Sareen’s report consisted of legal conclusions that are impermissible under the Federal Rules of Evidence, and those portions of his report that did not contain legal conclusions otherwise constituted a narration of irrelevant facts.

    Internal Medicine Expert Witness

    Dr. Balvindar S. Sareen graduated from the University of Delhi, Maulana Azad Medical College, in 1977, and completed an internship and residency in Internal Medicine at North Shore University Hospital in 1989. Sareen is board certified in Internal Medicine and Geriatrics, is a Diplomate of the American Board of Quality Assurance and Utilization Review Physicians, and holds a Master of Business Administration.

    He is licensed to practice medicine in the state of New York. He has actively practiced medicine clinically for over 30 years and has also served in various executive positions. Sareen is currently the Senior Medical Director/Vice President for Healthcare Partners in Garden City, New York, and continues to practice clinically.

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

    Discussion by the Court

    Sareen’s report concluded that Plaintiff was “within her rights” to insist on returning to work full-time, notwithstanding her doctor’s medical advice to work only 20 hours per week, and that her request to do so was reasonable.

    This determination, as to whether the Plaintiff’s request to work more than 20 hours per week would be a reasonable accommodation, is a conclusion to be reached by the jury in determining Defendants’ liability on Plaintiff’s
    failure to accommodate claims.

    Sareen’s report also stated: “to conclude, the common decision to override physician’s instructions, and make one’s own health-related decision, was here one to be made entirely by Plaintiff.”

    However, whether Defendants were reasonable in refusing to grant Plaintiff an accommodation that conflicted with medical guidance is also a determination to be made by the jury. Therefore, the Court agreed that Sareen’s report consisted of legal conclusions unfit for expert evidence, and these conclusions must be stricken from his report.

    However, the Court found that Sareen’s testimony regarding the issue of patients failing to comply with their doctor’s orders, and how commonplace that occurrence is, may be admitted to provide helpful background information to the jury. Additionally, the factual narration provided by Sareen in the report is limited and did not impermissibly “invade the province of the jury by finding facts that are in contention in this case.”

    Held

    The Defendants’ motion in limine to strike the testimony of Balvindar Sareen is granted in part and denied in part.

    Key Takeaway:

    In sum, it is common for expert reports to contain some background information situating their expert opinion, and the Court declined to strike Sareen’s report in its entirety on that basis.

    Case Details:

    Case Caption: Stapleton V. Prince Carpentry, Inc. Et Al
    Docket Number: 2:22cv4044
    Court Name: United States District Court, New York Eastern
    Order Date: September 08, 2025
  • Economics Expert Allowed to Testify Despite Not Considering Job Tenure

    Economics Expert Allowed to Testify Despite Not Considering Job Tenure

    Plaintiffs Donrudy Loiseau, Quinton L. Hebron, and Dwayne Small (together, “the Plaintiffs”), brought an individual and class action suit against their former employer, Bozzuto’s Inc., alleging discrimination against black employees with respect to promotions, warehouse position assignments, pay, workplace discipline, and terminations.

    Plaintiffs retained Dr. David M. Lang “to analyze employment data provided by Bozzuto’s Inc. to determine whether there were racial disparities between White and Black employees, especially in pay, job roles, promotions, and terminations (but also in discipline), and if so, the extent of those disparities and whether they are statistically significant.”

    Defendants filed a Daubert motion to exclude the opinions of Lang.

    Economics Expert Witness

    Dr. David M. Lang is a Full Professor and Chair of the Economics Department at California State University, Sacramento (CSUS). He routinely teaches courses at the University of California, Davis, across the Economics, Statistics, and Mathematics Departments, with a particular focus on labor economics and econometrics.

    Lang has published eight research papers and presented his work at more than 30 academic conferences. He earned his B.A. in Economics from Stanford University and both his M.A. and Ph.D. in Economics from Washington University in St. Louis.

    Discover more cases with David Lang as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    Defendants challenged the Lang Reports on two grounds: that Lang’s analyses failed to consider major non-discriminatory factors, rendering his conclusions unreliable and Lang’s analyses cannot be tested or reproduced because Lang has not produced the data underlying his opinions.

    Lang’s Analysis is Unreliable Because it Failed to Account for Major Non-Discriminatory Factors

    Defendants first alleged that Lang’s analysis is unreliable because it failed to account for major non-discriminatory factors: job type and tenure, employee qualifications, and whether an employee applied for a position or sought a promotion. Defendants urged that not only is Lang’s analysis so flawed as to lack any probative value, but that the alleged lack of consideration of certain non-discriminatory factors is fatal to its admissibility altogether.

    Lang’s analysis controlled for several variables, including job title, race, and
    base pay. Other factors Lang employed included corrective reviews, voluntary termination rates, and involuntary termination rates. Therefore, the Court held that the Defendants’ characterization of Lang’s analysis as aggregated and obfuscatory is inaccurate and ignored the disaggregated data Lang included across his two reports.

    Moreover, Lang’s decision not to consider certain factors (such as job tenure) is within his discretion and implicates, at most, the probative weight of his conclusions. Lang explained that tenure is not an appropriate control variable because it is tainted by discrimination, i.e., that Black employees are more likely to be terminated or disciplined as a result of discriminatory practice, thereby resulting in a shorter tenure. Moreover, Lang explained that certain other variables, such as “experience” are not amenable to review based on the data Bozzuto’s supplied. The assessment of Lang’s conclusions, in light of those factors he did and did not include within his analysis, rests with the factfinder in assessing their ultimate credibility.

    Lang Failed to Provide the Data Underlying his Opinions, Preventing Reproduction or Testing of his Analysis

    Defendants argued that “Lang’s testimony is unreliable and should be excluded because he has not produced the data underlying his opinions, and thus his analyses cannot be recreated.”

    Defendants claimed that Lang “prevented anyone from recreating or testing the accuracy of his work by purposefully conducting his work in a manner to leave no trail or evidence of his analysis.”

    However, Lang did supply the materials underlying his reports. Plaintiffs sent
    Defendants Lang’s expert materials on September 13, 2024, something Defendants acknowledged in their January 30, 2025 correspondence with Plaintiffs’ Counsel.

    Defendants tempered their initial assertion that Lang did not supply any of the materials underlying his reports by stating instead that the information supplied has not allowed the Defendants’ expert to replicate his results. As described above, this demonstrates a misunderstanding of the requirements of Rule 702 with respect to replication. Admissibility under Daubert does not demand that dueling experts supply one another with step-by-step instructions on how to replicate their results.

    Held

    The Court denied the Defendants’ Daubert motion to exclude the opinions of David M. Lang.

    Key Takeaway:

    As a general matter, variables excluded from a regression analysis impact the probative weight, not the admissibility, of expert evidence. Moreover, which variables to include in a regression analysis are within the professional judgment of the expert where certain variables may be tainted by discrimination.

    In this case, Lang explained that tenure is not an appropriate control variable because it is tainted by discrimination, i.e., that Black employees are more likely to be terminated or disciplined as a result of discriminatory practice, thereby resulting in a shorter tenure.

    Case Details:

    Case Caption: Loiseau V. Bozzuto’s Inc
    Docket Number: 3:22cv1485
    Court Name: United States District Court, Connecticut
    Order Date: August 27, 2025
  • Expert Testimony on Human Resources Practices Limited

    Expert Testimony on Human Resources Practices Limited

    Plaintiff Brian Kniffen brought claims against Defendant East Wenatchee Water District under the Washington Law Against Discrimination, the federal Americans with Disabilities Act, and the Washington common law tort of wrongful discharge in violation of public policy.

    Kniffen was a Utility Field Inspector (“UFI”), and his job consisted, at least in part, of inspecting various entities served by the water district, which involved opening and closing water valves. In May 2019, Kniffen experienced an on-the-job injury to his back while torquing a valve.

    After the injury, Kniffen was restricted with respect to lifting, squatting, and crawling. In August of 2019, he underwent an extraforaminal discectomy, a procedure on his lower back, and continued to work on a light duty basis, including the assistance of another employee to turn valves. In June of 2020, Kniffen called for assistance with a water valve, but no one was available, and he reinjured his back while twisting. As a result, he reopened his original worker’s compensation claim from May 2019.

    Defendant sought to exclude Plaintiff’s expert witness, Allison West‘s testimony on its human resources practices.

    Human Resources Expert Witness

    Allison Kracov West received a Bachelor of Arts from the University of Colorado, Boulder, and a Juris Doctor from Golden Gate University School of Law in 1994. She maintained a practice in employment law in San Francisco until she opened a consulting service in 2000, dealing with workplace investigations and human resource training.

    West has delivered trainings on employment issues to public and private entities and has been a speaker at human resources association conferences. She holds certificates demonstrating proficiency in human resource practices and attends continuing education courses.

    Want to know more about the challenges Allison K. West has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Defendant moved to exclude West’s testimony, arguing that she offered legal conclusions and made speculative assertions about human resource practices. Plaintiff assured that West will not provide testimony at trial on what reasonable accommodation law is or any legal conclusions about whether the law was violated, but argued that her opinion is well supported and will provide the jurors with additional context beyond the scope of general knowledge.

    Defendant argued that West’s testimony would offer nothing more than what the jurors may deduce for themselves after the presentation of evidence and is essentially full of legal conclusions.

     In forming her opinion and amendment, West reviewed the record as well as a “variety of resources that assist Human Resource (HR) professionals to develop industry standards that are recognized as ‘standard,’ ‘reasonable,’ or ‘best practices’ for the handling of employer-employee issues in all aspects of human resources.” Given her background in employment law and consulting work, West appeared to be well versed in such standards.

    Analysis

    The Court agreed with Defendant that some of West’s testimony unduly usurped the role of the Court and the jury, and therefore is excluded. West’s report detailed instruction on Washington State law, included findings that appeared speculative—such as the assertion that potential points for accommodation “fell through the cracks”—and offered conclusions that were properly left for the jury.

    Though Plaintiff argued that the ultimate issue of law is whether an accommodation is reasonable, not whether Defendant failed to engage in the interactive process, the Court disagreed, finding them intertwined. Therefore, to be admissible at trial, West had to limit her testimony to: (1) what the accommodation and interactive process looks like, including the proper role of administrators; (2) examples of reasonable accommodations; (3) how employers typically engage in the process of accommodating disabled employees; and (4) what steps Defendants took in the accommodation and interactive process. 

    By focusing her opinion on these specific topics, West could help the jury evaluate whether the Defendant followed human resource standards—without directly stating a legal conclusion herself.

    Held

    The Court granted in part the Defendant’s motion to exclude the testimony of Allison West.

    Key Takeaway:

    The admissibility of expert testimony, whether scientific or not, must assist the trier of fact to determine a fact in issue by providing information “beyond the common knowledge. While an opinion is not objectionable just because it embraces an ultimate issue, an expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law. 

    Case Details:

    Case Caption: Kniffen V. East Wenatchee Water District
    Docket Number: 2:23cv344
    Court Name: United States District Court, Washington Eastern
    Order Date: June 27, 2025
  • Expert Testimony on the Professional Standard of Law Enforcement Officers Excluded

    Expert Testimony on the Professional Standard of Law Enforcement Officers Excluded

    Plaintiff Suzanne Stewart filed a gender discrimination and retaliation suit against the City of Arcola after Mayor Fred Burton terminated Stewart’s employment as “a direct result of policy violations related to insubordination and [her] unprofessionalism.”

    Plaintiff filed a motion to strike the opinion of Defendant’s expert Michael W. Thaler.

    Law Enforcement Expert Witness

    Michael W. Thaler has extensive experience in law enforcement. He served as a law enforcement officer for over 40 years, during which he has served as the Assistant Chief of Police and Executive Assistant Chief of Police for the City of Houston and the Chief of Police for the City of Pasadena. 

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

    Discussion by the Court

    Defendant argued that Thaler offered an opinion on whether Plaintiff’s conduct could be considered insubordination. However, the Court held that Thaler’s declaration went well beyond that scope.

    Thaler purported to analyze “the civil action filed on behalf of Suzanne Stewart regarding her allegations of being discriminated against and terminated when she complained of ‘inappropriate comments’ made by the Mayor which were directed at her.” However, that merely summarized the case. It was the responsibility of the Court to analyze the civil action, not that of a non-lawyer expert.

    He further wrote that his “conclusions and opinions are based on an analysis of these materials by applying his law enforcement and administrative experience, education, and training regarding application of the applicable provisions of Texas and federal laws … Texas Administrative Code, Title 37; Texas Local Government Code 614; and Texas Occupational Code § 1701.452(a), (b).”

    The Court found that these were attempts by a non-lawyer expert to present legal conclusions under the guise of a legal analysis on a case-dispositive issue.

    At times, Thaler opines without rendering conclusions of law. For example, he writes that “there is no greater show of disrespect to the authority of a superior than to publicly challenge the decisions of a ranking officer with the type of profane laden language and unsupported salacious accusations as those made by the Plaintiff.” Nevertheless, the Fifth Circuit has recognized that expert testimony is unnecessary if “the jury could adeptly assess this situation using only their common experience and knowledge.”

    The Court concluded that Thaler’s opinion was, at best, unnecessary and, at worst, untethered to his qualifications.

    Held

    The Court granted the Plaintiff’s motion to strike the opinion of Defendant’s expert Michael W. Thaler.

    Key Takeaway:

    Experts cannot render conclusions of law or provide opinions on legal issues. A jury, using their common experience and knowledge, could adeptly assess that publicly challenging a supervisor with profanity-ridden language while accusing them of extramarital affairs is indeed disrespectful.

    Case Details:

    Case Caption: Stewart V. City Of Arcola
    Docket Number: 4:23cv4387
    Court Name: United States District Court, Texas Southern
    Order Date: June 24, 2025
  • Emergency Medicine Expert Witness’ Opinions on the Safety and Efficacy of the COVID-19 Vaccine Excluded

    Emergency Medicine Expert Witness’ Opinions on the Safety and Efficacy of the COVID-19 Vaccine Excluded

    Plaintiff Shane Goff filed a religious discrimination lawsuit against his former employer, PeaceHealth (Defendant), alleging that PeaceHealth failed to reasonably accommodate his religious opposition to receiving a COVID-19 vaccine. PeaceHealth defended its actions, asserting that it had provided reasonable accommodations and that continuing to employ Goff without vaccination would have created an undue hardship on its operations.

    The Defendant also sought to exclude the opinions and report of Goff’s expert, Dr. Richard Scott French, arguing that the evidence failed to meet the standards outlined in Rule 702 and Daubert.

    Emergency Medicine Expert Witness

    Richard Scott French, MD, is a board-certified emergency medicine physician and an active and experienced clinician who managed emergency departments, clinics, and at-risk populations during the pandemic and was able to successfully mitigate COVID-19 transmission without the use of a vaccine mandate. He also has professional experience teaching and presenting at medical schools on immunology, as well as viral transmission prevention, diagnosis, treatment, and management. 

    Want to know more about the challenges Richard Scott French has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    Defendant argued that Plaintiff’s expert, French, relied on unreliable methodologies and reasoning in his opinions and report. Dr. Seth Cohen, Clinical Associate Professor in the Division of Allergy and Infectious Diseases at the University of Washington and Medical Director of Infection Prevention at the University of Washington Medical Center, reviewed French’s report and provided a detailed rebuttal. Plaintiff did not respond to Cohen’s rebuttal.

    The Court reviewed French’s report, which can be categorized into two overarching opinions: (1) the safety and efficacy of the COVID-19 vaccine are unproven, and (2) COVID-19 exposure risks can be effectively mitigated without requiring vaccination. The Court found these opinions inadmissible under Rule 702 and Daubert, identifying three significant deficiencies.

    A. Rancourt Study

    First, French relied on the “Rancourt Study” to support his opinion that the COVID-19 vaccines are neither safe nor effective. He described the study as comprehensive, citing its graphs, charts, and methodological descriptions. However, the Court determined that the study’s length and visual data did not establish its scientific legitimacy, labeling it as junk science.

    Plaintiff failed to rebut the compelling opinion of Defendant’s expert, Cohen, who noted that the Rancourt Study “inexplicably… ignores that excess deaths across the world correlated with spikes of confirmed COVID-19 cases rather than vaccine rollouts.” Additionally, French did not provide a valid explanation for why the Rancourt Study, and his opinion based on it, should be considered reliable, especially given that it contradicts the broad scientific consensus that COVID-19 vaccines are safe.

    B. Outbreak Report

    Second, French cited an outbreak report to argue that COVID-19 vaccines were ineffective in mitigating transmission. The report found that 74% of the COVID-19 cases occurred in fully vaccinated individuals. From this finding, French opined that “even as early as 2021, the literature did not demonstrate that the COVID-19 vaccines were effective in transmission mitigation of COVID-19 infection.” However, the outbreak report explained that this result reflected high vaccination rates in the geographic area studied, not vaccine inefficacy. It concluded that the data was insufficient to evaluate vaccine effectiveness against variants like Delta and emphasized that vaccination remained the most critical strategy to prevent severe illness and death.

    The Court found that French’s interpretation of the outbreak report misrepresented its findings, as the report explicitly stated that vaccination was key in reducing severe illness. This misinterpretation further undermined the reliability of French’s reasoning and conclusions.

    C. Cohort Study

    Third, French relied on a cohort study to assert that COVID-19 vaccines increased the risk of transmission. However, the cohort study explicitly recommended “increasing population immunity via booster programmes and vaccination” and concluded that “this analysis suggests that direct protection of individuals at risk of severe outcomes, via vaccination and non-pharmacological interventions, will remain central to containing the burden of disease caused by the delta variant.” French’s opinion directly contradicted the scientific research it relied on, misrepresenting the study’s findings.

    The Court concluded that French’s overarching opinions regarding vaccine safety and alternative COVID-19 mitigation strategies were based on flawed methodologies and misinterpretations of the studies he cited. Further, the Court also found that French’s opinion on this subject falls below accepted standards of reliability, as his conclusions were repeatedly shown to contradict the very scientific research he relied upon. As a result, the Court excluded his opinions and report as inadmissible evidence under Rule 702 and Daubert.

    Held

    The Court granted the Defendant’s motion in limine to strike Richard Scott French’s testimony.

    Key Takeaway:

    • French’s reliance on the Rancourt Study to argue that COVID-19 vaccines are neither safe nor effective was deemed inadmissible by the Court. The Court dismissed the study as junk science, highlighting that its methodology lacked scientific credibility and failed to meet the standards of Rule 702 and Daubert.
    • French’s opinion that vaccines increase the risk of transmission was unsupported by reliable scientific data or consensus. In fact, he misinterpreted key studies, including the Outbreak Report and Cohort Study, which he cited to support his claims. These studies were used incorrectly to bolster his flawed argument.
    • Both the Outbreak Report and the Cohort Study explicitly recommended vaccination as an essential measure to prevent severe outcomes and reduce the disease burden. Contrary to French’s interpretation, the studies emphasized the importance of vaccination in controlling the spread of COVID-19 and preventing serious health risks.

    Case Details:

    Case Caption: Shane Goff V. Peacehealth
    Docket Number: 6:22cv1991
    Court: United States District Court for the District of Oregon
    Order Date: December 4, 2024
  • Court Approves of Economics Expert Witness’ Ex Ante Approach to Damages Calculation

    Court Approves of Economics Expert Witness’ Ex Ante Approach to Damages Calculation

    Plaintiffs are a group of current and former KCS employees working as conductors and engineers, collectively referred to as Train, Engine & Yard (“TE&Y”) employees by the parties. They alleged an FMLA (Family and Medical Leave Act) discrimination claim based on KCS’s practice of placing on-call employees at the bottom of job boards (i.e., at the bottom of the list to be called to work) after returning from FMLA leave.

    Plaintiffs alleged that certain policies violate the FMLA because they reduce the hours of work—and thus the ultimate take-home pay—of TE&Y employees who take FMLA leave.

    TE&Y employees who work on-call schedules may be assigned to one of a few types of job boards. The basic functioning of the board types is the same: TE&Y employees assigned to a board are placed on a rotating list based on when they last worked and are generally called to work in that order.

    Plaintiffs retained Andrew D. Schwarz, an economist, to provide expert testimony as to a class-wide, formulaic methodology to assess the damages arising from the bottom-of-the-board policy. At the core of Schwarz’s expert testimony is the assumption that, by being placed at the bottom of a job board upon returning from FMLA leave, TE&Y employees are harmed because of the additional waiting time before being called to a job.

    Economics Expert Witness

    Andrew D. Schwarz is an economist specializing in antitrust, class actions, and damages analysis, and has served as an economic expert in a variety of state and federal litigation.  Schwarz’s primary practice is as a consulting expert, providing privileged advice to counsel and working with experts in very large, complex litigation matters in antitrust, intellectual property, sports and entertainment, and banking and insurance. He has extensive experience in class action litigation, providing assistance to counsel for Defendants and for Plaintiffs.

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

    Discussion by the Court

    Schwarz identified two ways waiting-time damages present themselves: Schwarz called damages arising from the time an employee spends waiting on a board prior to taking leave, and losing the spot gained by that waiting, “Lost Priority Damages.” He referred to damages arising from an employee being placed on OK Hole Status, even after being marked up, as “Off-the-Board Damages.”

    KCS moved to exclude Schwarz’s testimony on the bases that it is legally irrelevant and unreliable.

    Timing

    Plaintiffs seek class certification in this action. In doing so, they cite Schwarz’s expert testimony as support for the existence of a class-wide, formulaic methodology to assess damages arising from the Defendant’s “bottom-of-the-board” policy. Plaintiffs also contend that the class-certification stage is not the proper time for resolution of the admissibility of expert testimony.

    The Court held that the admissibility of Schwarz’s expert opinion is relevant to the pending motion for class certification. In their class certification briefing, Plaintiffs point to Schwarz’s testimony as evidence that there is a “class-wide, formulaic methodology to assess the damages each Class member suffered” in relation to their bottom-of-the-board claim. Before a Court may certify a Rule 23(b)(3) “damages class,” the Plaintiff must show that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”

    Relevancy

    KCS first argued that Schwarz’s testimony is not legally relevant because it does not calculate a type of damages recognized by the FMLA. Under the FMLA, an employee—upon proving a violation—may recover “damages equal to the amount of any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation.” The Court, however, held that Schwarz has provided a method with relevant insight to the question of damages.

    Plaintiffs claimed actual monetary loss in the form of lost pay as a result of the alleged FMLA discrimination. Schwarz has attempted to articulate a method to capture the actual monetary damage employees suffered as a result of KCS’s “bottom-of-the-board” policy. Schwarz calculates “the expected earnings per marked-up timeslot.” Then he multiplies this number by the “number of timeslots each Class member was denied the benefit of being marked up.” The result is one potential calculation for earnings expected, but not received. In other words, lost wages, or at least a reasonable proxy for them.

    KCS argued that the measure of damages must be the exact “pay that the employee would have received but for the challenged policy.” Admittedly, Schwarz does not calculate the exact difference between any particular employee’s pay and what they would have received had they not been moved to the bottom of the board upon returning from FMLA leave. However, his method, which considers time marked up, time worked, and take-home pay, arguably makes more or less probable Plaintiffs’ allegations of lost wages.

    The Court does not relieve Plaintiffs of their burden to prove damages. However, Schwarz’s method provides insight into the damages calculation by serving as a proxy for a highly difficult, if not impossible, calculation of exact wages lost as a result of the FMLA discrimination allegation.

    Reliability

    KCS asserts Schwarz does not reliably apply the ex ante principles he relies on to the facts of the case. KCS’s argument is premised on alleging that (1) Schwarz relies on incorrect factual assumptions, and (2) he does not consider clearly known or knowable later circumstances apparent in the facts of the case in his model, as is required by an ex ante approach.

    The Court finds that Schwarz’s discussion of Plaintiff Scott Carter’s experience shows that employees returned to the bottom of the board may face longer waits for work, and that these longer waits may even compound into the future.

    Schwarz properly accounts for this “knowable” event in his ex ante method

    The Court noted that Schwarz accounts for a number of knowable events— including that some employees will receive minimum compensation regardless of taking leave. Schwarz provides three examples, only one of which he attributes harm to the employee upon taking FMLA leave, marking up, and going back on FMLA leave prior to working a job (this is the case where the employee is returned to the board at a lower spot each time they return from FMLA leave).

    In other words, it seems KCS believes no harm accrues from the wait time between the first and second leave, even if the employee loses spots upon returning from leave both times, because the employee did not expect to work in the time between the first and second leave. However, the Court acknowledged Schwarz’s point that if an employee loses their spot on the job board both times, this would put the employee further away from work after each leave (a sort of compounding effect). This then correlates to a longer wait for work and less take-home pay than if the employee had taken only one leave.

    The Court also finds Schwarz’s opinion is based on sufficient data. Schwarz’s opinion reflects and relies on the best data available to him—KCS’s own records of employees’ time spent marked up, time spent working, and ultimate take-home pay.

    Held

    The Court denied KCS’ motion in limine to exclude the testimony of Plaintiffs’ economist Andrew Schwarz.

    Key Takeaways:

    • Schwarz’s ultimate method is an ex ante approach to damages calculation, which is a well-established calculation in economic literature.
    • Schwarz’s method provides insight into the damages calculation by serving as a proxy for a highly difficult, if not impossible, calculation of exact wages lost as a result of the FMLA discrimination allegation.

    Case Details:

    Case Caption: Roberson Et Al V. The Kansas City Southern Railway Co.
    Docket Number: 4:22cv358
    Court: United States District Court, Missouri Western
    Order Date: October 16, 2024