Plaintiff John Thomas McReynolds, Jr. asserted claims for breach of contract and bad-faith delay arising from Defendant’s handling of a claim for underinsured motorist benefits under a Group Personal Excess Liability Policy issued by Vault.
Defendant Vault E&S Insurance Company filed a motion to exclude the testimony of Plaintiff’s vocational expert, Allison Shipp Berry.
Vocational Rehabilitation Expert Witness
Allison E. Shipp Berry has substantial education and experience in vocational assessment, work-capacity analysis, labor-market access, and earning-capacity evaluation. Her credentials include advanced degrees in rehabilitation counseling and an MBA, as well as certifications in rehabilitation counseling and life-care planning.
Berry plainly possessed specialized knowledge concerning vocational impairment and diminished earning capacity. The Court rejected Defendant’s broad contention that Berry is wholly unqualified to testify in this case.
The more difficult question concerned the scope and reliability of the specific opinions she proposed to offer.
Vocational Impairment and Diminished Earning Capacity
The Court first addressed Berry’s opinions regarding Plaintiff’s vocational impairment and diminished earning capacity arising from an asserted occupational change following the accident.
Berry reviewed Plaintiff’s medical records, interviewed Plaintiff regarding his post-accident functional limitations, reviewed certain financial materials, and utilized vocational resources and labor-market tools commonly employed in her field, including occupational classification and wage data.
She further opined that Plaintiff could no longer perform the interventional pain-management work that allegedly constituted a significant component of his pre-accident practice and instead transitioned into a more sedentary supervisory or medical-director role. Plaintiff himself testified that he could no longer perform interventional pain-management procedures at the same level after the accident and that he pursued the Baptist Hospital arrangement after recognizing he could no longer continue his prior work in the same manner. Berry’s opinions concerning occupational change and diminished work capacity are therefore not untethered abstractions. The Court concluded that Plaintiff has carried his burden under Rule 702.
Defendant correctly observed that Berry selected particular occupational codes and wage data that may be subject to challenge. The fact that Defendant believed that Berry selected imperfect comparators did not establish that she employed no identifiable methodology at all.
Defendant also emphasized that Plaintiff continued receiving a $240,000 salary both before and after the accident. But Berry expressly testified that her earning-capacity analysis was not intended as a reconstruction of Plaintiff’s historical W-2 compensation; rather, it was intended to estimate the difference in vocational earning capacity between Plaintiff’s pre-injury work and his post-injury occupational role. Whether that distinction is persuasive is a matter for the jury. The Court cannot conclude that Berry’s testimony on this issue is so disconnected from accepted vocational analysis as to require exclusion.
Lack of Specialized Training or Experience in Forensic Accounting
Although Plaintiff attempted to characterize Berry exclusively as a vocational expert offering vocational opinions, the reports themselves demonstrate that Berry went further. In both her 2023 and 2025 reports, Berry analyzed the financial performance of McReynolds Anesthesia, P.A., compared pre- and post-accident income figures, and calculated alleged annual income losses for the practice.
The Court concluded that Plaintiff has not demonstrated by a preponderance of the evidence that Berry is qualified or that her methodology is sufficiently reliable. Berry is not a CPA, economist, or business-valuation expert.
Berry’s business-income calculations were based largely upon a comparison of profit-and-loss statements from selected periods before and after the accident. Yet she admittedly did not review tax returns for either Plaintiff or the medical practice, did not verify the underlying financial data, and did not meaningfully analyze alternative economic causes affecting the practice’s revenue.
Berry’s methodology assumed that any reduction in the practice’s income was attributable to the accident while failing to account for an acknowledged and substantial change in the business model of the practice itself. Rule 702 requires more than a temporal comparison followed by an assumption of causation.
The Court is likewise persuaded that these opinions present substantial risks of jury confusion under Rule 403.
Held
The Court granted in part and denied in part Defendant Vault E&S Insurance Company’s motion to exclude the opinions and testimony of Plaintiff’s vocational expert, Allison Shipp Berry.
Key Takeaway
Berry was not permitted to testify regarding alleged net-income losses suffered by McReynolds Anesthesia, P.A., or to offer opinions calculating business-income damages based upon the practice’s profit-and-loss statements. Those opinions exceed the scope of her demonstrated vocational expertise and are not supported by a sufficiently reliable methodology under Rule 702. Moreover, because the opinions risk conflating Plaintiff’s individual earning-capacity claim with the financial performance of a separate business entity, any limited probative value they may possess is substantially outweighed by the danger of confusing or misleading the jury.
Case Details:
Case Caption:
McReynolds V. Vault E&S Insurance Company
Docket Number:
1:24cv173
Court Name:
United States District Court, Mississippi Northern
In this insurance bad faith case, Plaintiff James Won alleged that State Farm unreasonably denied his claim for business property damage and lost profits resulting from a fire that occurred at Won’s Tapioca Express store in Edmonds, Washington on September 11, 2021.
Won disclosed Michael Jack of Soundpoint as a financial expert but the Defendant sought to exclude Jack’s testimony, alleging that the opinions of Jack that the Plaintiff disclosed before the discovery cutoff on October 5, 2025 “are irrelevant and unhelpful to the jury in this case.”
Valuation Expert Witness
Michael Jack is a Certified Valuation Analyst (CVA). He has an Honors BS in Finance from Indiana University, an MBA from the University of North Carolina and is a graduate of General Electric’s Financial Management Program.
He has held leadership roles in finance, operations, technology, program management and product management in start-ups, mid-size fintechs and large financial services firms.
Initially, Defendant contested only the helpfulness of the opinions of Jack that were disclosed before the discovery cutoff on October 5, 2025.
On August 06, 2025, Plaintiff disclosed Jack as a financial expert and shared a report from Jack dated July 29, 2025. That report expressed Jack’s opinion concerning the fair market value of Plaintiff’s business as of the date of the fire that precipitated the insurance claim that is at issue in this action. Jack’s report presented the fair market valuation—$501,000—as being offered “for the purposes of a calculation of economic damages.” However, the report did not directly calculate economic damages.
However, on October 08, three days after the discovery cutoff, Plaintiff produced a second report from Jack. Conceding that the first report “is not a direct calculation of economic damages,” the second report offered a net economic damages calculation of $434,700. A third report from Jack, dated October 20, 2025, offered a calculation of “the total annual lost income to Won incurred from the closure of Northwest Tea Station . . . due to a fire in September 2021.”
Defendant added that these post-discovery-cutoff opinions should be stricken and are essentially an effort by the Plaintiff to “change the heart of his case without giving State Farm an opportunity to fairly respond.”
Analysis
Given the totality of the circumstances, the Court allowed the reports from Jack that were disclosed after the discovery cutoff. Having allowed those reports from Jack, the Court has no doubt that Jack’s analyses, taken together, are helpful. Thus, the Court will deny Defendant’s Daubert motion and Defendant’s motion to strike. However, the Court did not accept Plaintiff’s argument that his post-discovery-cutoff disclosures were timely supplements under Fed. R. Civ. P. 26(e) given that Plaintiff has been aware since at least March 2025 that Defendant had requested a specific, itemized list of Plaintiff’s damages.
Nor did the Court accept Plaintiff’s argument that his post-discovery-cutoff disclosures were “substantially justified” and “harmless” under Fed. R. Civ. P. 37(c)(1). Therefore, the Court is willing to consider a motion by Defendant for reasonable expenses, including attorney fees, caused by Plaintiff’s failure to timely disclose a damages calculation.
Held
The Court denied Defendants’ Daubert motion to exclude the testimony of Michael Jack and strike his untimelyexpert report.
Key Takeaway
While Jack’s analyses are helpful, Plaintiff’s initial disclosures did not provide a “computation of each category of damages” as required by Fed. R. Civ. P. 26(a)(1)(A)(iii), nor did Plaintiff provide the “itemized list of damages” requested by Defendant in Defendant’s discovery requests.
Case Details:
Case Caption:
Won V. State Farm Fire And Casualty Company
Docket Number:
2:24cv507
Court Name:
United States District Court for the Western District of Washington
Plaintiff Misty Blanchette Porter was previously employed as a physician in the Reproductive Endocrinology and Infertility (“REI”) Division within Dartmouth Health’s Department of Obstetrics and Gynecology (“OB/GYN”).
After Dartmouth Health made the decision to shut down the REI Division entirely and to terminate all three physicians employed therein—including Porter—Porter filed suit against Dartmouth Health citing disability discrimination.
Dartmouth Health argued that the testimony of Porter’s damages expert, Dr. Robert L. Bancroft, should have been excluded due to untimely disclosure under Rule 26.
Economics Expert Witness
Robert L. Bancroft holds a bachelor’s degree in economics from the University of Vermont (“UVM”); a Master of Science in agricultural economics from UVM; and a Ph.D. in agricultural economics from Purdue University.
From June 1979 until August 1981, Bancroft worked for the United States Department of Agriculture to develop an econometric forecasting model to forecast farmers’ participation in certain government programs and to provide testimony and research to the U.S. House of Representatives. Next, Bancroft began work as an assistant professor in the Department of Agriculture and Resource Economics—later renamed the Department of Community Development and Applied Economics—at the University of Vermont in August 1981. Bancroft continued as an assistant professor of economics until 1991, when he became an adjunct professor. He worked as an adjunct professor of economics until 1996.
Dartmouth Health contended that the Court erred by admitting testimony and exhibits offered by Porter’s expert damages witness, Bancroft, because Porter failed to timely disclose several of his expert opinions under Rule 26.
The Court found that the timing of the disclosure of Bancroft’s March 19, 2025, supplemental report did not warrant a new trial. The March 2025 supplemental report was a direct response to defense counsel’s cross-examination of Bancroft at a hearing on Dartmouth Health’s motion to exclude Bancroft from testifying as an expert witness at trial.
Cross-examination elicited that Bancroft was unaware of certain information relevant to his calculations. Bancroft subsequently updated his report on March 19 to incorporate this new information. Dartmouth Health plainly knew this information before Bancroft issued his March 19 report, as defense counsel raised the issue at the evidentiary hearing.
Moreover, Bancroft did not change the substance of his opinion. He used the same methodology in his March supplemental report as in his prior reports, changing only the inputs to produce updated damages calculations.
The Court did not share Defendants’ view that Bancroft issued his corrective March 2025 report because his testimony at the March 12 evidentiary hearing revealed that his August 2024 report “had not included key facts and assumptions . . . such as Porter’s promotion to full professor in July 2023 and her most recent earnings from UVMMC at a higher rate of pay than what Bancroft had projected.”
Rule 37
Even if the disclosures were untimely, admitting Bancroft’s testimony was not error because the disclosures were substantially justified or harmless under Rule 37.
The first factor—the willfulness of the non-compliance regarding the March 2025 report and the reason for the noncompliance—did not weigh definitively in either party’s favor. Porter knew well before March 2025 that she had received a $7,698 tuition credit for her son’s undergraduate education at UVM in 2019, and Bancroft could have included that information in his August 2024 report. On the other hand, Dartmouth Health knew that it had approved salary freezes in 2020 and 2021, and Dartmouth Health did not allege that Porter or Porter’s expert had that information until March 2025.
The efficacy of lesser sanctions and the possibility of a continuance weigh against excluding Bancroft’s testimony. Dartmouth Health’s proposed alternative—introducing its own expert witness to rebut Bancroft’s supplemental report—was simply not feasible only four days before a three-week trial.
The duration of noncompliance factor was inconclusive. Although Porter was aware of some information that impacted her expert’s damages calculations well in advance of the March 2025 report, other information was only in the possession, custody, or control of Dartmouth Health until the March evidentiary hearing. Bancroft submitted his updated report one week after the evidentiary hearing.
The Court is unaware of any previous warning to Porter that an untimely supplemental expert report could result in exclusion of the expert witness.
Moreover, Dartmouth Health already had a significant amount of the updated information Bancroft relied on for his March 2025 supplemental report. It is difficult to conceive how admitting the March 2025 report, or Bancroft’s testimony consistent with that report, prejudiced Dartmouth Health given that the report estimated substantially lower damages figures than any of Bancroft’s previous reports.
Held
The Court held that the relevant factors weighed against excluding Robert Bancroft’s testimony.
Key Takeaway:
Without Bancroft’s testimony, Porter would have been severely disadvantaged in quantifying her claimed economic damages. Such a sanction would have been disproportionate to the alleged noncompliance given that the late disclosure had a reasonable basis; Bancroft’s methodology did not change from one report to the next, and Bancroft’s final report substantially reduced Porter’s estimated damages.
Case Details:
Case Caption:
Blanchette Porter V. Dartmouth Hitchcock Medical Center
Plaintiff Brian Menge, a former police detective with the City of Highland Park, Michigan, brought a claim against Defendant Khursheed Ash-Shafii, a Highland Park city councilman, alleging that Ash-Shafii unlawfully retaliated against him in violation of the First Amendment because of Menge’s successful settlement of a prior lawsuit against the City. The retaliation consisted of statements published by Ash-Shafii falsely accusing Menge of stealing money from the City’s criminal forfeiture fund while Menge was a police officer there. Menge retained Sameer Somal, to testify to the amount of damages Menge incurred to his income, reputation, and psyche as a result of Ash-Shafii’s false statements.
The Defendant filed a motion to exclude Somal’s testimony arguing that Somal did not meet the requirements of Rule 702.
Defamation Expert Witness
Sameer Singh Somal CFA, CFP®, CAIA is a CFA Charterholder, a CFP® professional, and a Chartered Alternative Investment Analyst. He is the CEO of Blue Ocean Global Technology, a company that assists individuals and entities with building and repairing their online reputation. He has co-authored Continuing Legal Education (CLE) programs about defamation and related topics and is a former member of the Legal Marketing Association (LMA) and the Education Advisory Council (EAC).
Somal opined that Menge suffered “significant” damages based on Defendant Ash-Shafii’s alleged retaliatory statements. Somal separated the damages into four categories: economic, rehabilitative, reputational, and emotional distress. He determined that Menge suffered at least $283,500 in economic damages.
Economic Damages
Ash-Shafii objected first to Somal’s assessment of Menge’s economic damages of $283,500. Somal opined that Menge was entitled to economic damages in that amount based on Somal’s own “conservative estimate” that he lost the opportunity to work over the next three years with between eight and ten attorneys. He reckoned that each of these attorneys would have retained Menge for at least six to eight projects per year for an average of $1,000 per project. Ash-Shafii asserted that this testimony is unreliable because it strays from the facts of the case. He asserted that Somal failed to review certain “Request for Payment” forms that are submitted in indigent criminal cases to obtain payment for Menge’s work on an investigation and did not review Menge’s 2023 tax return.
While these points may all be grounds for impeachment, the Court held that they do not necessarily fatally undermine the admissibility of Somal’s testimony.
The problems with Somal’s testimony are more basic. For one, Somal did not appear to be assessing the economic damage to Menge’s investigation business based on any independent body of expertise — that is, based on any knowledge of the legal field in the metro Detroit region. He did not offer any foundation for innate or acquired knowledge of the practices for assignment or retention of investigators in indigent criminal defense cases or the networking customs among defense attorneys. Instead, his conclusions ultimately were based on “estimate[s]” of Menge’s lost work, which he deemed “conservative.” He projected that Menge lost the opportunity to work with between eight and ten attorneys per year, but the source of this estimate is entirely unexplained and does not correspond with any evidence in the record.
Rehabilitation Damages
Ash-Shafii next asserted that Somal offered no methodology for his opinion that a twelve-to-eighteen-month rehabilitation campaign, costing approximately $180,000, will be necessary to rehabilitate Menge’s online reputation. He pointed out that the recording of the City Council meeting containing the offending comments only has been viewed approximately 300 times on Facebook, and Somal never searched for references to Menge on Google to determine the extent of the spread of the alleged defamatory statements on the internet.
However, Ash-Shafii did not appear to take issue with Somal’s qualifications as an expert in the field of online reputation management, and Somal’s report contains a sufficiently clear basis for his $180,000 estimate. He explained that his team would have to conduct ongoing analysis and testing on important “keywords” related to Menge, and as part of their work to rehabilitate his reputation, the team would create “backlinks” — apparently prioritized by search engine algorithms — to more prominently highlight certain favorable results. In his report he quoted a cost of $15,000 a month for twelve months for these tasks. While this number may well be excessive, the Court held that Somal, by dint of his knowledge of the field, is qualified to offer his view.
While Ash-Shafii faults Somal for failing to assess the extent of the spread of the defamatory content before coming up with this estimate, it did not appear that the amount of work necessary to address harmful online content is dependent on the volume of material circulating on the internet. Moreover, Somal did opine that it was problematic that the alleged defamatory video still was published to Facebook and explained that the fact court documents mentioning the defamatory statement were readily accessible on the internet “adds another layer of complexity to the rehabilitation process.”
Reputational Damages
Ash-Shafii also took issue with Somal’s conclusion that Menge is entitled to $550,000 to $750,000 in damages based on more generalized harm to his reputation.
In his report, Somal stated that “there is no set standard to determine the actual value associated with [reputational damages]” and that calculating damages in this area “is subjective.” He then explained that in his experience, a “solid structure” for assessing damages would consider three “rings”: Menge’s immediate contacts, his prospective contacts, and strangers.
“Adding the three reputational rings together,” he “calculated and estimated that damages” totaled to “no less than $550,000 – $750,000.” How he calculated a value for each ring is not explained, and his deposition does not shed much further light, but it appeared that the figures may be based on his review of damages awards in other defamation cases.
The Court held that this opinion suffers from the twin faults of no stated methodology and no factual tether.
Held
The Court granted in part and denied in part the Defendant’s motion to exclude testimony of Sameer Somal.
Key Takeaway:
Rule 702 requires an expert to articulate some methodological basis before he may present his testimony to a jury. And his work must bear some relation to the facts of the case. The danger of allowing Somal’s opinion based on his calculations is that it could suggest to the jury damages that do not in fact exist.
Moreover, with proper foundation, calculating Menge’s economic damages would not necessarily even require expert testimony. Trial witnesses could testify about the effects of Ash-Shafii’s defamation on Menge’s businesses and his attorney can develop testimony about the size of his business and the comparative reduction in revenue.
This copyright infringement case was brought by JBrick, LLC (“JBrick”) against Chazak Kinder, Inc., Chazak Distribution, Inc., Marav USA LLC, and Yaacov Schwartz (collectively “Defendants”) in the United States District Court for the Eastern District of New York. JBrick alleged that the Defendants infringed on their copyright for a lego model of the Second Holy Temple by creating and selling a similar product.
JBrick was established in 2014 by Yitzchok and Channie Kasowitz with the goal of creating Jewish-themed custom lego sets, one of which was an accurately scaled lego model of the Second Holy Temple. In November 2018, Kasowitz displayed JBrick’s completed Second Holy Temple model at a convention where he met Defendant Schwartz. Shortly thereafter, Defendants began selling a model that JBrick alleged was nearly identical to their copyrighted Second Holy Temple model.
In May 2021, JBrick filed a complaint against the Defendants for copyright infringement. On April 25, 2022, Plaintiff filed its second amended complaint. On August 19, 2022, the parties completed expert discovery. JBrick hired a damages expert, Michael D. Pakter, to calculate the actual damages suffered by JBrick and any profits earned by the Defendants that were attributable to the alleged infringement. The Defendants retained their own rebuttal expert on damages, Trevor McClain-Duer. Plaintiff moved to exclude certain of McClain-Duer’s opinions and testimony in response.
After discovery concluded, the Defendants filed a motion to strike the expert opinions of Pakter. Specifically, Defendants had raised several objections to Pakter’s opinions. These objections included his assertion that Plaintiff would have sold an equal number of the copyrighted set as Defendants sold of the accused product, his claim that damages should encompass the Temple Mount Product and the unsold inventory of the Temple Mount Product, his evaluation of Defendants’ profits from the allegedly infringing product, and his suggestion that “JBrick can recover both its lost profits and a disgorgement of Defendants’ profits.” During that time, Plaintiff had maintained that Pakter’s opinions were grounded in “complex but transparent calculations” designed to help the jury comprehend the financial aspects underpinning the damages asserted in the case.
Accounting Expert Witnesses
Michael D. Pakter is a certified public accountant, registered and licensed in the State of Illinois, with over 40 years of experience in accounting and forensic accounting. He holds a Bachelor of Commerce and a Bachelor of Accountancy from Witwatersrand University, in South Africa. The American Institute of Certified Public Accountants has recognized him as “Certified in Financial Forensics” and as a “Chartered Global Management Accountant.” He has earned several other certifications including as a “Certified Valuation Analyst” and “Master Analyst in Financial Forensics” from the National Association of Certified Valuators and Analysts, and as a “Certified Insolvency and Restructuring Advisor” from the Association of Insolvency and Restructuring Advisors. Michael Pakter has over 20 years of experience in determining economic damages and performing business valuations. He is currently the Managing Member of Gould & Pakter Associates, LLC (“G&P”). He was retained on account of his extensive accounting experience to opine about the Plaintiff’s damages assuming Defendants’ liability.
Trevor McClain-Duer is a certified public accountant, registered and licensed in the State of Illinois. He holds a Bachelor of Business Administration from the University of Notre Dame and a Master’s Degree in Accounting from Ohio State University. He is a Chartered Financial Analyst with over 15 years of experience in valuation and determining economic damages. He is currently the Director of Valuation at Caliber Advisors, Inc., an expert valuation and economic consulting firm.
Discussions by the Court
The Court first examined Pakter’s qualifications and found he had significant accounting and damages calculation experience to serve as an expert on economic damages. Turning to the reliability of Pakter’s opinions, the Court addressed four disputed aspects of his testimony.
First, it denied striking Pakter’s opinion that JBrick would have sold an equivalent number of temple models as Defendants, despite the price difference between the products. Pakter had suggested that, assuming the Defendants’ liability, one possible method for calculating actual damages was to consider “JBrick’s lost profits for its Holy Temple product.” This calculation involved assuming that Plaintiff would have made all or various fractions of the infringing sales that Defendants had made. However, the Defendants had raised objections to this calculation, deeming it speculative. They pointed out a significant disparity in the sale price between the two products, with Plaintiff’s Second Holy Temple Product priced at $613 compared to the Defendants’ allegedly infringing product priced at $60.
Nonetheless, it was argued that nothing indicated that Pakter’s conclusion, which suggested that Plaintiff would have sold an equal number of its Second Holy Temple Product as Defendants, was so unrealistic or contradictory as to imply bad faith on his part.
Second, Plaintiff contended that its Second Holy Temple Product and a second product known as the “Temple Mount Product” were “directly related.” Consequently, they argued that Pakter could factor in the lost sales of the Temple Mount Product when calculating Plaintiff’s damages. The Temple Mount Product was designed to complement and enhance the educational value of the Second Holy Temple Product. Court determined that while such a damages theory was not inconceivable, the Plaintiff had failed to provide credible evidence of a clear relationship between the sales of the two products absent evidence of lost customers or canceled orders for the Temple Mount Product as a direct result of the alleged infringement.
Third, Defendants argued that Pakter’s calculation of their profits was not reliable. They pointed out that his use of a “per unit cost” figure and his failure to account for the total loss of 300 products donated by Defendants to charity were issues of concern. In response, the Plaintiff had maintained that Pakter’s methodology was indeed reliable. According to the Plaintiff, the core of the dispute between the parties revolved around whether profits and costs should be calculated on a per-unit bought-and-sold basis or based on all products manufactured at one time and the decisions made by the Defendants regarding the disposition of those products. Court held that the Defendants showed no authority proving Pakter’s approach was unreliable. At most, the parties disagreed on the appropriate profit analysis, weighing on Pakter’s credibility rather than admissibility. The Court ruled the jury should resolve this battle of the experts.
Fourth, Defendants argued that Pakter had inappropriately opined that the Plaintiff should be entitled to profits from Chazak’s downstream distributors. Furthermore, the Defendants had contended that Pakter’s opinion was based on the premise that the Plaintiff could not only recover for Chazak’s alleged infringement but also claim downstream profits resulting from the same alleged infringement of a single product.
However, the Court had determined that in cases where two or more individuals were involved in or contributed to a single infringement, they were all jointly and severally liable. In such instances, within a single infringement action, only a single set of statutory damages could be considered. This was because the Copyright Act allowed for only a single recovery for a single sale, and the Court’s decision addressed the issue of multiple parties and liability in the context of copyright infringement.
Plaintiff had sought the exclusion of specific opinions and testimony from McClain-Duer. Their basis for this exclusion request rested on the assertion that McClain-Duer lacked the qualifications to provide expert opinions on three key aspects: (i) the size of the market for JBrick’s Second Holy Temple Product; (ii) “price-point comparisons” related to the Second Holy Temple Product; and (iii) JBrick’s manufacturing capabilities.
In response to this request, the Defendants had argued that McClain-Duer was functioning as a rebuttal expert. His role was primarily focused on identifying deficiencies in Pakter’s report, specifically highlighting the Plaintiff’s failure to establish, using competent evidence, the size of the market for the Second Holy Temple Product and the manufacturing capabilities of JBrick. This dispute had centered on the qualifications and role of McClain-Duer in the case.
The Court found McClain-Duer qualified as an expert on economic damages but lacking in foundation to opine on the size of the market for JBrick’s product or its manufacturing capabilities. McClain-Duer was capable of identifying deficiencies in Pakter’s report. However, he was not qualified to go further and provide an opinion based on research indicating that lego branded sets from popular movies and TV shows sold for significantly less, indicating an insufficiently large market for the Temple product. Similarly, while McClain-Duer could point out that Pakter’s calculations assumed that the Plaintiff could have produced and sold over 15 times the number of sets he actually sold during the same time period, he lacked the qualifications to opine that the Plaintiff did not have the product manufacturing capabilities or capacity to manage such a significant increase in sales. This was because McClain-Duer did not possess the necessary expertise in the field more closely aligned with this opinion, which would be industrial engineering.
Therefore, the Court struck McClain-Duer’s testimony regarding the potential market for JBrick’s temple model, comparisons to other lego prices, and JBrick’s ability to meet higher production levels. It found these opinions exceeded McClain-Duer’s economic damages expertise and amounted to advocacy without qualification.
Court excluded the portions of Duer-McClain’s report and testimony purporting to describe the size of the market for JBrick’s Second Holy Temple Product, “price-point comparisons” related to the Second Holy Temple Product, and JBrick’s manufacturing capabilities.
Held
The Court granted in part and denied in part the Defendants’ motion to strike the opinions of Michael Pakter, and granted the Plaintiff’s motion to strike certain opinions and testimony of Trevor McClain-Duer. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
This case demonstrates the importance of scrutinizing the scope and reliability of expert witness testimony through Daubert motions. The Court served a gatekeeping role to restrict expert opinions to only what the witness was qualified to offer and exclude speculative or unsupported theories.
For Pakter, most of his damages calculations passed muster as grounded in reasonable methodology for the jury to assess. However, his assumption of losses on a non-infringed product went too far without evidence of causation. This highlights how courts will strike expansive expert opinions that lack factual support in the record.
Meanwhile, for McClain-Duer, his opinions on the size of the market for the Second Holy Temple Product and manufacturing capability of the Plaintiff required demonstration of expertise in the field more closely aligned to such opinions. This shows how rebuttal experts cannot provide opinions that go beyond the scope of their own expertise.
In summary, this case reinforces the principles that expert testimony must stay within the witness’s area of specialized knowledge and have a reliable factual basis.
