Expert Witness Profiler

Tag: Efficacy

  • Safety Expert Allowed to Opine on Effectiveness of Warning Signs 

    Safety Expert Allowed to Opine on Effectiveness of Warning Signs 

    Plaintiff Anthony Rebmann sues Astec, Inc. d/b/a Astec of Tennessee and Astec Industries, Inc. (collectively, “Astec”) based on an incident on March 19, 2020, when, in the course of his employment at an asphalt plant, his left hand became entangled in an Astec baghouse screw conveyor. Astec has answered and has also filed a Third-Party Complaint against Rebmann’s employer at the time, Gernatt Asphalt Products, Inc. (“Gernatt”), claiming contribution and negligent training and supervision.

    Astec sought to strike the report of Plaintiff’s life-care expert, Nadeem I. Hussain, M.D. and has also filed motions in limine to exclude the testimony of Plaintiff’s products-warnings (or “human factors”) expert, Gerald M. Goldhaber, Ph.D. and Plaintiff’s products-liability expert Thomas A. Berry, P.E.

    Plaintiff has filed his own motion to exclude or limit the opinions of Astec’s expert, Dennis B. Brickman, P.E.

    Safety Expert Witness

    Dr. Gerald Martin Goldhaber has emerged as the nation’s leading safety warnings and communication expert. He is the publisher of the Goldhaber Warnings Report. His clients have included over 100 of the top 500 corporations in the U.S. Fifty of the top 100 law firms and government agencies, including the FDA (for whom he consulted on a new nutritional label). Goldhaber’s clients have also included the Consumer Product Safety Commission (CPSC) to establish guidelines for products ranging from All Terrain Vehicles (ATV’s) to soda bottles to in-line skates, the USDA for whom he has consulted about potential warnings for sugary products.

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

    Physical Medicine And Rehabilitation Expert Witness

    Dr. Nadeem Imran Hussain is a Physical Medicine & Rehabilitation specialist who has practiced medicine in New York since 2014.

    Hussain is a licensed physician in the state of New York, and he is certified by the American Board of Physical Medicine & Rehabilitation.

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

    Mechanical Engineering Expert Witness

    Dennis Barry Brickman is an industry veteran with over 40 years of mechanical engineering and materials science experience.

    Brickman has developed specialized expertise in the safety of children’s products, outdoor power equipment, tree care machinery, elastic cord products, and automatic door sensor systems.

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

    Engineering Expert Witness

    Thomas Alan Berry holds a Master of Science in Mechanical Engineering from Wichita State University and a Bachelor of Science in Mechanical Engineering from the same institution.

    He has authored at least 15 peer-reviewed papers presented at ASAE/ASABE and ASME conferences between 1985 and 2013, covering topics such as PTO safety, agricultural equipment accidents, forklift tipover risks, pallet truck accidents, mower stability, and gasoline geysering hazards.

    Gain a comprehensive understanding of Thomas Berry’s qualifications and casework history with his Expert Witness Profile report.

    Discussion by the Court

    A. Thomas Berry, P.E.

    Plaintiff has retained Thomas Berry, P.E., as an engineering expert in this case. Berry has opined that Astec “knew or should have known of technically and economically feasible design alternatives that would have significantly reduced and/or eliminated the risk to operators without unnecessarily affecting the utility of the [baghouse] machine.”

    Astec sought to exclude Berry’s opinions regarding causation and alternative designs, arguing that he “failed to properly test and validate his opinions, basing them instead on unsupported assumptions.”

    1. Clearance Between Door and Nip/Shear Point

    The first alternative design is to add “clearance between the access door opening and the nip/shear point created by the extremely small distance between the auger flighting and the housing.” According to Berry, “this could be accomplished by raising the edge of the access door opening or providing a grate guard for the lower area of the opening, or by utilizing a left-hand flighted screw that would move the nip area to the back of the auger rather than directly below the access opening.”

    a. Testing

    The Court concluded that Berry did not need to perform testing as to his alternative of raising the edge of the access door opening. Astec’s expert has asserted that “[f]lighted screw augers typically have a close clearance with respect to their housing [because] otherwise, material builds up and does not adequately move near the housing interior structure.” That is sensible and understandable, but the housing in the area at issue appears to be rectangular, containing a cylindrical auger. With that geometry, the Court concluded that no testing would be required to support Berry’s opinion that raising the lower edge of the access door opening could put the pinch/nip point beyond the reach of fingers when the hand is grasping the lower edge of the housing.

    b. Cost

    Astec asserted that Berry has failed to conduct a “meaningful” comparison of the cost versus utility of his proposed alternative designs.

    Plaintiff did not dispute the importance of cost in the analysis. But Plaintiff maintained that the associated costs were zero, nominal, required by industry standards, or otherwise based on Berry’s training, education, and experience.

    As to cost, Berry asserted that raising the lip of the access opening could be provided “at no or little difference in cost.”

    Absent special considerations that are not immediately apparent and that could be the subject of cross-examination, the Court agreed that no further explanation or analysis is necessary for Berry’s opinion that designing or cutting the port in the auger housing to place the lip of the access door at a higher point would carry little or no cost difference.

    c. Efficacy

    Astec also argued that Berry’s report lacks evidence that the proposed alternative designs “could have prevented” Rebmann’s injuries. Plaintiff maintained that the standard is not whether the design would have “prevented” the injury, but whether the design would have resulted in greater safety.

    The Court agreed with Astec that designing the crossover screw with left flighting instead of right flighting would not have been materially safer. Berry asserted that the change “would move the nip area to the back of the auger.”

    Raising the lower edge of the inspection door opening, however, does not suffer from the same problem. Astec correctly observed that Berry’s supplemental report recommends raising the edge by “a few inches” which is not a particularly precise specification. And if “a few inches” means just two or three inches, then Astec may be correct that the modification would not eliminate the risk of entanglement for a hand grasping the bottom edge of the inspection door opening. But the Court is not persuaded that Berry needed to calculate precisely how many inches the edge would have to be raised. It is apparent from the layout and geometry of the inspection door opening that raising the bottom edge by some number of inches—more than two but less than half the height of the inspection door opening—would put the nip/shear point more than a finger’s length away.

    2. Bars on Lower Area of Access Opening, or Grate

    a. Testing

    Similar to the alternative of raising the bottom edge of the inspection door opening, the Court concluded that Berry did not need to test the alternative of adding bars across the lower area of the access opening. This solution is functionally identical to raising the edge of the door opening. The main difference is that that lower area of the access opening would be covered with parallel bars instead of solid metal.

    b. Cost

    Like the alternative of raising the bottom edge of the inspection door opening, Berry asserted that the cost of adding bars would be low; in his view, “less than $10-15.” Astec maintained that Berry’s cost estimate should be excluded for lack of any “meaningful explanation.”

    The Court is not persuaded that more explanation is required; the proposed alternative design appears to involve ordinary components that could be incorporated into the inspection door opening at modest cost.

    c. Efficacy

    Similar to raising the bottom edge of the inspection door opening, adding a sufficient number of bars at the lower area of the opening would put the nip/shear point more than a finger’s length away. Astec argued that dust accumulation in the area would prevent visibility through the bars.

    At his deposition, Berry conceded that dust accumulation between the bars would obstruct visibility if the bars were not cleaned off. Even if not cleaned off, the alternative design is for bars only on the lower area of the access opening; the upper area would still offer views into the enclosure. The Court concluded that Berry can testify to the bars as an alternative design.

    3. Interlock

    a. Testing

    Berry’s third proposed alternative design would be to provide an interlock system “such that the augers could not operate with the access doors open or [without] a grate guard in place” to prevent contact with the running auger that would “still allow the dust to escape during the clearing operation and would allow visual inspection of the augers and shafts.”

    There appears to be no dispute that interlock technology existed at the time the baghouse was designed and manufactured in the 1980s, But Astec asserted that Berry should have conducted testing to determine whether such a device “would work on the Baghouse.”

    The Court agreed that adding an interlock device would be a “more substantial modification” to the Baghouse, and that the practicality and specifics of installation of an interlock depends on the machine to which it would be applied.

    Although it appeared that it would at least be possible to conduct testing of an interlock system applied to the Baghouse, the Court concluded that the lack of any testing or modeling weighs somewhat against admission of Berry’s opinions on the interlock design.

    b. Cost

    In his report, Berry asserted that integrating “interlocked doors and grate guards” into the Baghouse would cost “approximately $200 per opening.”

    Astec maintained that Bery “gives no explanation, sources, or support” for that assertion.The Court agreed with Astec that further support is necessary for Berry’s price estimate because the cost estimate must consider more than purchase price.

    Astec noted that Conveyor Equipment Manufacturers Association (CEMA) industry manual is “an industry group not focused on regulation (or authorized to regulate) but on voluntary standardization of conveyor design.” Even assuming that the CEMA manual purported to require interlocks for applications like the Baghouse, the manual would not constitute regulatory or binding authority. Thus, the cost of an interlock system remains relevant to the reliability inquiry.

    c. Efficacy

    Perhaps the most important consideration as to the interlock design is whether it would improve safety without negatively impacting maintenance and inspection. Berry and Rebmann both testified that Rebmann needed the crossover screw to be running while he was looking into the inspection door because he needed to determine whether the repair to the screw was successful.

    The Court is unpersuaded on this point. If disabling the proposed interlock were the only way to accomplish the inspection, Plaintiff could argue that the time spent doing so could have called extra attention to the need for caution near the spinning auger. Moreover, disabling the interlock would not have necessarily been the only way for Rebmann to complete his task. One version of the interlock that Berry proposes is that it would prevent the augers from operating unless a grate guard was in place. In that scenario, Rebmann would likely have simply replaced the grate guard, rather than attempting to disable the interlock mechanism. The Court concluded that all of these questions about testing, cost, and efficacy of an interlock system are suitable for cross-examination but are not a basis to exclude Berry’s testimony on that alternative.

    4. Safety Signs

    There appears to be a dispute about whether Astec supplied safety signs on or near the inspection door when the product was delivered to Gernatt in 1984. No warning signs or labels are visible on or near the inspection door in the contemporaneous photographs. However, Astec Vice President George Francisco testified in 2024 that he worked for Astec for over 31 years, and that in his experience during that time, Astec would affix warning labels to areas like the inspection door on the baghouse at issue in this case.

    a. Testing

    Aster’s arguments about the proposed addition of safety signs or warning labels do not appear to include a lack-of-testing criticism. In the context of warning labels, the testing that is often most relevant involves “creating several warning labels that varied with respect only to a single characteristic and then gauging peoples’ reactions to the various labels.”

    Here, in contrast, the inquiry is only the presence or absence of any warning labels at all. Testing might be helpful to determine how long a safety sign would remain attached or visible in a dusty and vibrating environment, but the court does not conclude that such testing was necessary here.

    b. Cost

    Berry asserted that safety signs at each access door could have been provided “at a cost of less than $3 each.” Astec faults that assertion as unsupported by any explanation or sources.

    The Court concluded that no further support is required for the proposition that, at least compared to the total cost of a baghouse, industrial safety signs were relatively inexpensive in the 1980s. Whether special adhesion or paint might be required for equipment in a dusty and vibrating environment would be fair game for cross examination.

    c. Efficacy

    Astec contended that “there is a complete absence of factual support for Berry’s conclusion that the alleged failure to warn was a proximate cause of Plaintiff’s injuries.”

    Astec cited Berry’s testimony stating that he agreed that “it’s reasonable to expect that [warnings on equipment] [are] not going to be read.” Plaintiff countered that “the general concept that not all warnings are followed, does not negate Astec’s responsibility to adequately warn.”

    The Court agreed with Plaintiff on this point; safety signs and placards have long been established as “resulting in greater safety.” The Court’s reasoning below as to Astec’s motion to exclude Plaintiff’s products-warnings expert, Goldhaber, supports this conclusion.

    B. Gerald Goldhaber, Ph.D.

    1. “Unsupported Assumptions” on Effectiveness of Warnings

    Astec contended that Goldhaber’s opinions are “premised on the false narrative that Plaintiff was told to get close to the moving screw to check it.”

    At his deposition, Goldhaber asserted that Robert Rebmann, Anthony Rebmann’s uncle and immediate supervisor, directly ordered Anthony Rebmann to “first clean the dust out, and inspect those augers.”

    The fact that Robert Rebmann agreed that the “check” required the augers to be turning does not prove that he expressly instructed Anthony Rebmann to perform the check. Based on its review of Robert Rebmann and Anthony Rebmann’s testimony, the Court agreed with Astec that there is no support for the proposition that Robert Rebmann expressly instructed to carry out a “check” or “inspection” of the repaired crossover screw (or how to perform that check). The Court therefore agreed to limit Goldhaber’s testimony insofar as he might opine that Rebmann received instructions to put aside his training, background, or common sense.

    Astec has a further criticism about the factual basis for Goldhaber’s report: Astec contended that his opinions “disregard that Plaintiff habitually ignored safety protocols, safety training and safety procedures.” The original report, dated August 8, 2024, did not discuss Rebmann’s prior safety incidents. The Court concluded that, at best, it is debatable whether Rebmann’s prior workplace injuries and a verbal reprimand for failing to wear a hardhat show that he “habitually ignored” safety protocols, training, or procedures. In any case, Goldhaber has addressed Rebmann’s prior safety incidents in the supplemental report.

    2. Goldhaber’s Own Testimony and Writing on Effectiveness

    Astec further argued for exclusion of Goldhaber’s opinion about the effectiveness of warning signs or placards as being “in direct contradiction to his own testimony and work on the effectiveness of warnings.”

    However, the inquiry is not whether warning signage would have made the user aware of a danger of which they were previously unaware. The inquiry is whether a warning would have increased the user’s awareness of the danger. Rebmann testified that if warning signs or labels had been present “it would have made me think about becoming—it would have made me think about coming in close proximity a little bit more.” A jury can assess that testimony, and the Court will not exclude Goldhaber from offering similar testimony.

    3. Warnings Standards as of 1984

    Goldhaber’s report specifically faults Astec for failing to comply with ANSI Z535.4, which lie asserts “has been in effect since 1968.” Astec insisted that “in reality, the first version of the ANSI Z535.4 standard for product safety signs and labels was published in 1991, seven years after the Baghouse was manufactured and delivered to Gernatt.” Plaintiff maintained that ANSI Z35.1-1968 was approved in September 1968 and that the Occupational Safety and Health Administration (OSHA) “adopted this standard in 1971, requiring workplaces to comply with it starting August 31, 1971.”

    Astec cited a post on the ANSI website indicating that ANSI Z535.4’s “initial publication” was in 1991—after the Baghouse was manufactured in 1984.

    The Court accepts that as true, but Astec’s argument on this point fails to account for the fact that ANSI Z535.4’s predecessor is USAS 235.1. And federal regulations incorporated the Z35.1-1968 standard in 1984.

    For all of the above reasons, the Court denied Astec’s motion to exclude Goldhaber’s testimony.

      C. Nadeem Hussain, M.D.

      Astec contended that Hussain’s report is “an entirely new report that fails to contradict, challenge, or rebut Defendant’s corresponding report,” and that it is “not based on any new or previously unavailable information that would trigger a duty for Plaintiff to supplement its report.”

      There is no dispute that Hussain’s report cannot qualify as an initial expert disclosure. Plaintiff’s deadline for initial expert disclosures was August 30, 2024, and Plaintiff submitted Hussain’s report well after that date.

      The Court concluded that Hussain’s report is partly a proper rebuttal and partly and improper new expert report. Insofar as the report violates the discovery rules, the Court considers the following factors below.

      a. Plaintiff’s Explanation

      Plaintiff’s explanation is that he offered Hussain’s report “to contradict or rebut evidence on the same subject matter.”

      The majority of Hussain’s life-care plan did not repel, counteract, or disprove the opposing expert’s diagnostic report. But there are exceptions: Hussain’s inclusion of massage therapy implicitly contradicts the opposing expert’s opinion that it is not medically necessary, and Hussain’s inclusion of costs for prosthetics and related supplies for Rebmaim’s lifetime implicitly challenges the opposing expert’s remark about prosthetic abandonment. This factor is therefore mixed.

      b. Importance of Hussain’s Testimony

      In general, a second life-care plan is not particularly important to Plaintiff’s case. But medical opinions on the necessity or utility of the highest dollar-value treatments are very important to Plaintiff’s damages case. This factor is also mixed.

      c. Prejudice to Astec

      Plaintiff argued that Hussain’s report does not prejudice Astec, particularly because Astec had “an opportunity to rebut his report in writing and did so.”

      Astec maintained that allowing Hussain would result in significant prejudice. The Court is not persuaded that any of the items that Astec lists weigh significantly in favor of striking Hussain’s report. Instructions to the jury can mitigate concerns about giving more weight based on the quantity of evidence. The discovery order can be amended without prejudicing either side. Preparing to oppose a second life-care expert will require some additional expense, but it is not excessive in proportion to all the other expenses in this litigation.

      d. Possibility of Continuance

      Finally, Plaintiff asserted that a continuance is possible because “there is time afforded by the current case management order to complete expert discovery and depositions; and there is no trial date.”

      In December 2024, when Plaintiff filed his opposition to Astec’s motion to strike Hussain’s report, the Court had ordered expert depositions completed by March 15, 2025. Now, in mid-2026, all of the deadlines in that prior order have passed. However, it remains true that there is no trial date set in this case.

      For the reasons discussed above, the Court declined to strike Hussain’s report. The Court instead elects to grant Astec an opportunity to serve a surrebuttal report.

      D. Dennis Brickman, P.E. 

      Plaintiff sought preclusion of Brickman’s March 2025 report, arguing that it is untimely insofar as it contains new information and references.

      The first issues are whether Brickman’s March 2025 report is a timely and proper supplementation. Plaintiff has identified no court order altering the deadline, and because no trial date has been set, Rule 26(a)(3)(B)‘s 30-day deadline has not yet expired.

      The Court therefore rejected Plaintiff’s assertion that Brickman’s March 2025 report is untimely supplementation. The more significant dispute is whether it is proper “supplementation” at all.

      Plaintiff argued that Brickman’s March 2025 report is not supplementation, asserting that Brickman “undertook new work and testing based on information and materials that were equally available to him at the time of his first report.”

      For the reasons above, the Court rejected Astec’s explanations for providing the “supplemental” report. In the Court’s view, Brickman’s March 2025 opinions regarding the AGSCO mesh guard are of limited importance because Berry cited that manufacturer’s product only as an example. The AGSCO product’s one-inch openings might allow a finger to pass through, but a different screen with openings smaller than one inch could be specified. Moreover, even a screen with one-inch openings would have been safer than no screen at all.

      At the same time, Brickman’s March 2025 opinions about reduced visibility from the proposed interlocked mesh guard are more detailed than his opinion on that topic in his October 2024 report. Plaintiff asserted that failure to exclude Brickman’s March 2025 report or related testimony would result in “extreme” prejudice. The Court concluded that any such prejudice can be mitigated by granting Plaintiff the opportunity for a surrebuttal.

        Held

        • The Court denied Astec’s motion in limine to exclude Gerald Goldhaber’s testimony.
        • The Court granted in part and denied in part Astec’s motion in limine to exclude Thomas Berry’s testimony.
        • The Court denied Astec’s motion to strike the expert report of Nadeem Hussain.
        • The Court denied Plaintiff’s motion to preclude the opinions of Dennis Brickman.

        Key Takeaway

        Turning to the question of the proper sanction for failure to conform to the discovery rules, the Court considers (1) the party’s explanation for the failure to comply with the discovery order; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance.

        Case Details:

        Case Caption: Rebmann V. Astec, Inc.
        Docket Number: 1:21cv879
        Court Name: United States District Court, New York Western
        Order Date: July 13, 2026

      1. Neurology Expert Witness Barred from Opining on Effective Communication

        Neurology Expert Witness Barred from Opining on Effective Communication

        Plaintiffs Jennifer Le Pape (“Mother”) and Frederic Le Pape (“Father”) (collectively, “Parents”), on behalf of their child, Alexandre Le Pape (“Alex”), and Alex, individually, (collectively, “Plaintiffs”) bring intentional discrimination claims under the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”) against Defendant Lower Merion School District (the “District”), alleging that the District failed to take appropriate steps to ensure that communications with Alex were as effective as communications with others and failed to provide Alex with the appropriate auxiliary aids and services necessary to afford Alex an equal opportunity to participate in and enjoy the benefit of various school services and programming.

        Alex is a nonspeaker. He learned to communicate using a letterboard and communication support person (“letterboard”). The District precluded Alex from using a letterboard and communication partner at school.

        The District filed objections to the qualifications of Plaintiffs’ anticipated expert witnesses—Dr. William Young, Dr. Mary Stephens, and Vanessa von Hagen—to opine on the efficacy of the letterboard and communication partner as a means of communication for Alex.

        Young, Stephens, and Von Hagen did not submit expert reports in this case, as Plaintiffs identified these three witnesses pursuant to Federal Rule of Civil Procedure 26(a)(2)(C) as experts who have not been retained or specially employed to provide expert testimony. 

        Young has provided both in-patient and out-patient treatment for Alex’s migraines since May 2019. Stephens has been Alex’s primary care doctor since Spring 2019, and she has also interacted with Alex “through Alex’s contribution to the education of doctors concerning neurodiversity” while von Hagen served as the lead clinician on Alex’s home behavior team for six years, beginning in 2012.

        Neurology Expert Witness

        William Young is board-certified in neurology, psychiatry, and headache medicine, and he is the director of the Jefferson Headache Center of Jefferson University Hospitals. 

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

        Family Medicine Expert Witness

        Mary M. Stephens is board-certified in family medicine and is the director of Jefferson University Hospitals’ Continuing Care Program. She has “extensive experience . . . providing medical services to neurodiverse individuals in medical settings.” 

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

        Behavioral Science Expert Witness

        Vanessa von Hagen is a board-certified behavior analyst with more than 13 years of experience implementing, planning, and developing client-specific programming and interventions based on the principles of applied behavior analysis.

        Discover more cases with Vanessa von Hagen as an expert witness by ordering his comprehensive Expert Witness Profile report.

        Discussion by the Court

        William Young

        Plaintiffs intended to call Young to testify that “Alex’s communication with the letter board and communication partner is effective communication for Alex” or “at a minimum,” to testify “as to why he deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of his medical treatment.”

        The District argued that Young is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because he has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further contended that Young’s alternative opinion as to why he determined Alex’s communication through Spelling to Communicate (S2C) to be sufficiently reliable for purposes of his medical treatment, which Plaintiffs proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”

        Aside from his interactions with Alex using the letterboard and communication partner, Young does not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, augmentative and alternative communication (“AAC”), facilitated communication, or other facilitator-dependent communication methods used with minimally verbal or non-verbal autistic individuals like Alex. Accordingly, the Court found that Plaintiffs have failed to establish by a preponderance of the evidence that Young has the necessary expertise to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.

        Mary Stephens

        Plaintiffs intended to call Stephens to testify that “Alex’s communication with the letter board and communication partner is effective communication for Alex and that his communications on it are his own” or “at a minimum,” to testify “as to why she deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of [her] medical treatment.”

        As it argues with respect to Young, the District similarly contended that Stephens is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because she has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further argued that Stephens’ alternative opinion as to why she determined Alex’s communication through S2C to be sufficiently reliable for purposes of her medical treatment, which Plaintiffs again proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”

        Since Stephens does not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, AAC, or facilitator-dependent communication techniques, the Court found that Plaintiffs have failed to establish by a preponderance of the evidence that Stephens has the necessary expertise to opine on the
        efficacy of Alex’s use of a letterboard and communication partner to communicate.

        Vanessa von Hagen

        Plaintiffs intended to call von Hagen to testify that “Alex’s communication with the letter board is effective, that he communicates his wants, needs, and thoughts with it, and that he could not do so without it” or “at a minimum,” to testify “as to why she deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of her clinical work with him.”

        The District argued that, like Young and Stephens, von Hagen is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because she has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further contended that von Hagen’s alternative opinion as to why she determined Alex’s communication through S2C to be sufficiently reliable for purposes of her clinical work, which as with Young and Stephens, Plaintiffs proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”

        The Scope of von Hagen’s Clinical Experience is Not Clear

        While von Hagen does not appear to have any education or research experience in the fields of speech-language pathology, AAC, or facilitator-dependent communication techniques, the scope of von Hagen’s “clinical experience . . . concerning communication strategies for persons with autism” is not clear from Plaintiffs’ pretrial memorandum or letter brief, von Hagen’s curriculum vitae, or von Hagen’s testimony at the due process hearing.

        The Court cannot yet ascertain whether von Hagen’s clinical experience is sufficient to qualify her to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.

        Held

        The Court held that Young and Stephens will not be permitted to opine on the efficacy of the letterboard and communication partner as a communication method for Alex, which includes any testimony about their determinations that Alex’s communication with a letterboard and communication partner is sufficiently reliable for purposes of their medical treatment of Alex. It reserves ruling on the District’s objection to the qualifications of von Hagen to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.

        Key Takeaway:

        Defendants argued that Young, Stephens and von Hagen lacked the qualifications to opine on the efficacy of the letterboard and communication partner as a means of communication for Alex. 

        While the scope of von Hagen’s experience was not clear, both Young and Stephens did not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, augmentative and alternative communication, or facilitator-dependent communication techniques.

        Please refer to the blog previously published about this case:

        Economics Expert Witness Allowed to Opine on Educational Loss

        Case Caption: J.L. Et Al V. Lower Merion School District
        Docket Number: 2:20cv1416
        Court: United States District Court, Pennsylvania Eastern
        Order Date: January 6, 2025
      2. Economics Expert Witness Allowed to Opine on Educational Loss 

        Economics Expert Witness Allowed to Opine on Educational Loss 

        Plaintiffs Jennifer Le Pape (“Mother”) and Frederic Le Pape (“Father”) (collectively, “Parents”), on behalf of their child, Alexandre Le Pape (“Alex”), and Alex, individually, (collectively, “Plaintiffs”) brought intentional discrimination claims against Defendant Lower Merion School District (the “District”), alleging that the District failed to take appropriate steps to ensure that communications with Alex were as effective as communications with others and failed to provide Alex with the appropriate auxiliary aids and services necessary to afford Alex an equal opportunity to participate in and enjoy the benefit of various school services and programming.

        Alex is a nonspeaker. He learned to communicate using a letterboard and communication support person (“letterboard”). The District precluded Alex from using a letterboard and communication partner at school.

        Plaintiffs filed a motion to preclude the opinions of Dr. Howard Shane, an anticipated expert witness for the District who will opine on the “effectiveness and appropriateness of using the method known as Spelling to Communicate (S2C) with Alex LePape.”

        In response, the District filed a motion to preclude the opinions of Chad Staller, an anticipated expert witness for Plaintiffs who will opine on the damages that Plaintiffs incurred for Alex’s past and future educational services and the future costs for Alex’s psychiatric treatment, and all evidence of educational loss.

        Speech-Language Pathology Expert Witness

        Howard Shane has been a practicing and licensed Speech Language Pathologist for 49 years. The vast majority of his professional life has been spent working with individuals who are non-speaking as a result of autism, cerebral palsy, or intellectual impairment. He holds a Master’s degree and a Doctoral degree in Speech Pathology with a minor in Developmental Psychology and Audiology. For his doctoral work, he specialized in neurogenic speech problems. Moreover, he completed a Doctoral Fellowship at the Mayo Clinic in Rochester, Minnesota, where he worked with patients who experienced severe motor speech disorders, including Apraxia of Speech.

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

        Economics Expert Witness

        Chad L. Staller JD, MBA, MAC, CVA serves as the president of the Center for Forensic Economic Studies and holds extensive experience collaborating with both plaintiff and defense counsel across various civil cases. His expertise involves quantifying losses sustained by diverse plaintiff profiles, including union members, government employees, business proprietors, and injured children. Staller specializes in evaluating claims related to employment discrimination, encompassing calculations of back-pay, front-pay damages, and lost benefits. Additionally, he frequently provides consultation on commercial issues, analyzing claims associated with lost profits and business interruptions. Staller has a substantial record of testifying in jury trials, bench trials, and arbitrations within state and federal court settings.

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

        Discussion by the Court

        Chad Staller

        Motion to Preclude the Expert Testimony of Chad Staller and All Testimony and Evidence of Educational Loss

        The District contended that because it has been judicially determined that the District provided Alex with a free appropriate public education (“FAPE”) and is not entitled to recover compensatory education or tuition reimbursement under the Individuals with Disabilities Education Act (“IDEA”), Plaintiffs cannot recover educational loss damages under the Americans with Disabilities Act (“ADA”) or the Rehabilitation Act, which renders Staller’s opinions as to those damages irrelevant under Rule 401 and unfairly prejudicial under Rule 403. 

        Basically, evidence of educational loss is relevant to establish the specific compensatory damages that Plaintiffs seek. Accordingly, the Court denied the District’s motion with respect to evidence of Plaintiffs’ educational loss, including Staller’s opinions as to the amount of educational loss damages Plaintiffs incurred.

        Staller’s testimony on future medical care damages

        To begin with, the District argued that Plaintiffs are not entitled to recovery of emotional distress damages under the ADA or the Rehabilitation Act, which rendered Staller’s opinions as to those damages irrelevant under Rule 401 and unfairly prejudicial under Rule 403. 

        The Supreme Court held in Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 142 S. Ct. 1562, 212 L. Ed. 2d 552 (2022), that emotional distress damages are not recoverable in private discrimination actions brought under the Rehabilitation Act.

        The Court is not convinced by Plaintiffs’ argument that the non-educational loss damages that they seek—payment of Alex’s future psychiatric treatment expenses—are not emotional distress damages and, therefore, are still recoverable.

        The vast majority of district courts confronted with this issue in the wake of Cummings have held that mental health treatment costs constitute emotional distress damages because they stem from emotional distress as the underlying injury. 

        Therefore, the Court found that Plaintiffs are precluded from recovering Alex’s future psychiatric treatment expenses, as these fall into the category of emotional distress damages that are not recoverable under the ADA and the Rehabilitation Act.

        The Court granted the District’s motion with respect to Staller’s opinions as to the projected cost of future psychiatric treatment for Alex.

        Howard Shane

        Plaintiffs argued that because Shane’s opinions are not based on any analysis of “Alex’s communication with a letter board and communication partner,” they are irrelevant under Federal Rule of Evidence 401. Alternatively, Plaintiffs argued for the preclusion of Shane’s opinions under Federal Rule of Evidence 403 because these opinions “would invade the province of the jury, offering an opinion as to the credibility of [Alex’s] testimony with the letter board.”

        The Court held that Shane’s opinions are relevant to the material factual issues of the efficacy of a letterboard and communication partner for Alex, the efficacy of other communication supports that the District provided to Alex, and the District’s knowledge when it refused to permit Alex to use S2C at school at least in part due to the perceived lack of supporting scientific research.

        Moreover, Plaintiffs’ contention that Shane did not base his opinions on any “personal interactions” with Alex or investigations of “authorship with Alex’s use of the letter board” is not entirely accurate, as Shane indicates in his affirmative report that he compared the “content of [Alex’s] work produced independently with [his] work produced with the assistance of a facilitator.”

        Also, considering that Plaintiffs will offer their own expert opinions as to the efficacy of Alex’s use of S2C as a means of communication and the significance of a communication partner for Alex, the Court found that Plaintiffs will not be unfairly prejudiced, and the jury will not be confused or misled, by the introduction of Shane’s contrasting opinions.

        However, the Court precluded Shane’s opinions to the extent they relate to human rights violations, including violations of the United Nations Conventions on the Rights of Persons with Disabilities, because such opinions are impermissible legal conclusions and unfairly prejudicial and confusing to the jury. 

        Held

        1. The Court granted in part and denied in part Plaintiffs’ motion in limine to preclude opinions of Howard Shane.
        2. The Court granted in part and denied in part Defendant’s motion in limine to preclude the testimony of Chad Staller.

        Key Takeaway:

        • The Court did not find that the probative value of Shane’s opinions is substantially outweighed by the dangers of unfair prejudice because the Plaintiffs will offer their own expert opinions as to the efficacy of Alex’s use of S2C as a means of communication and the significance of a communication partner for Alex.
        • Also, Staller’s opinions as to the amount of educational loss damages Plaintiffs incurred is relevant to establish the specific compensatory damages that Plaintiffs seek and are entitled to recover for their ADA and Rehabilitation Act claims.

        Case Details:

        Case Caption: J.L. Et Al V. Lower Merion School District
        Docket Number: 2:20cv1416
        Court: United States District Court, Pennsylvania Eastern
        Order Date: December 30, 2024
      3. Ophthalmology Expert Witness’ Testimony Not Fully Excluded Because He Understands Color Vision Acuity Testing

        Ophthalmology Expert Witness’ Testimony Not Fully Excluded Because He Understands Color Vision Acuity Testing

        Plaintiff Mark Walker (“Walker”) worked as a locomotive engineer for Defendant Union Pacific Railroad Company (“Union Pacific”) from approximately 2005 through 2019. After the Court dismissed Walker’s claim under the Americans with Disabilities Act (“ADA”) alleging failure to accommodate, Walker’s remaining claims allege disparate treatment and disparate impact in violation of the ADA. Walker contends that Union Pacific “regarded” Walker as disabled by having a color vision deficiency.

        Plaintiff alleged that Union Pacific violated the ADA by requiring Walker to take a secondary color vision field test (“CVFT”), Union Pacific’s proprietary “Light Cannon” test, even though Walker had just passed a scientific color vision test, the “Ishihara” test. Walker also alleged that Union Pacific violated the ADA because the specific version of Union Pacific’s proprietary Light Cannon test that was administered to Walker in July 2019 did not effectively assess an employee’s ability to read and interpret railroad signals because that test screens out qualified individuals who do not, in fact, have color vision deficiencies but whom the test, and thus Union Pacific, wrongfully “regards” as being color vision deficient.

        Walker was hired by Union Pacific in 2003, and he passed the Ishihara at that time. He was certified as an engineer in 2005 and he again passed the Ishihara. In 2007 he passed the Ishihara again as part of his recertification as an engineer. In 2010, Walker failed the Ishihara test after incorrectly identifying two plates. Walker was recertified as an engineer, however, after he passed Union Pacific’s then-current wayside signal CVFT. In 2013, Walker again failed the Ishihara by incorrectly identifying two plates. Again, Walker was recertified after passing Union Pacific’s wayside signal CVFT. Walker passed the Ishihara on June 20, 2016. He again passed the Ishihara on June 21, 2019.

        Challenges to Expert Testimony

        Walker moved to exclude or limit the testimony of Union Pacific’s expert witnesses Steven Fender and Jeff Rabin, O.D., Ph.D. He argued that Fender is not qualified to provide expert testimony on any subject relevant to this case and that Fender’s testimony is irrelevant and unreliable. Walker contended that because he passed the Ishihara test, is a qualified employee as a matter of law, and the Light Cannon is only a qualification standard, Fender’s testimony about regulatory standards is irrelevant. He also argued that Fender is unqualified to render any opinion outside of regulatory standards, such as the efficacy of the Light Cannon test, and his opinions about the efficacy of the Light Cannon test are unreliable and unhelpful to the jury.

        Walker also moved to limit Rabin’s testimony to what is contained in his non-reporting witness disclosure under Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure.

        Union Pacific moved to exclude the testimony of Walker’s expert witness Jay Neitz, Ph.D. as misleading, confusing, unreliable, and unhelpful to the jury. Union Pacific argued that Neitz’s testimony is misleading because he misinterprets federal regulations by construing the Light Cannon test as a “scientific” test instead of a “field” test.

        Railroad Expert Witness

        Steven Fender is a Railroad Transportation and Safety Consultant who has worked in the industry for 45 years. He worked for 31 years at the FRA. He is highly qualified in the fields of railroad operations, safety, and regulations.

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

        Optometry Expert Witness

        Jeff C. Rabin is a tenured Professor of Optometry and Assistant Dean for Research, Assessment and Graduate Studies at the University of the Incarnate Word Rosenberg School of Optometry, where he teaches courses in vision science, optics and binocular vision. Rabin received his Bachelor of Science in Physiological Psychology with highest honors from the University of California at Santa Barbara, and Doctor of Optometry, Masters of Science and Doctor of Philosophy Degrees in Physiological Optics from the University of California at Berkeley.

        Want to know more about the challenges Jeff C. Rabin has faced? Get the full details with our Challenge Study report. 

        Ophthalmology Expert Witness

        Jay Neitz is the E.K. Bishop Endowed professor in Ophthalmology at the University of Washington in Seattle. He has been a research scientist and an educator for 30+ years. He is an expert in all aspects of disorders of the eye and their effect on visual performance.

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

        Discussion by the Court

        Under the regulations of the Federal Railroad Administration (“FRA”), railroad companies must test railroad engineers at least every three years for, among other things, color vision acuity. The initial test must be one of a set of scientific tests approved by the FRA, including, as relevant here, the Ishihara 14-plate test (“Ishihara”). If an engineer fails the initial, or primary, test, the examinee may undergo a secondary test, which may consist of an [“o]phthalmologic referral, field testing, or other practical color testing.”

        A. Development of Union Pacific’s Light Cannon Test

        Union Pacific began developing the Light Cannon test in 2015. In October 2015, Dr. Jeff Rabin and Dr. Douglas J. Ivan, M.D., reviewed the Light Cannon test and testing protocol. The 2015 device contained four eight-inch LED lights, in two rows of two, that flashed four colors—red, yellow, green, and white—for five seconds each, and required each color light to be manually turned on and off. The examinee was located one-quarter mile away from the device, with a nurse taking down responses and Union Pacific staff at either end managing the test.

        Rabin and Ivan issued their “draft” final report on January 25, 2016. This report identified that the Light Cannon test had “a number of critical short comings in its current design and within the proposed test administrative procedures.”

        Union Pacific nevertheless implemented the Light Cannon test on April 1, 2016, with only the few modifications previously described and no further validation studies having been performed. Rabin was hired in approximately mid-2018 to conduct further studies to evaluate the efficacy of the Light Cannon. Rabin testified at deposition, and confirmed at the hearing, that based on the new testing protocols and other changes made to the Light Cannon test after his 2016 report, he believes the 2020 version of Light Cannon test is a valid field test. He noted, however, that for people with color deficiencies, he believes the change in testing protocols did not make a statistically significant difference.

        B. Plaintiff Walker

        On July 3, 2019, Union Pacific’s Associate Medical Director, Dr. Donald Richard Lewis, stated that Walker had met the FRA’s vision requirements and was approved for recertification. Nonetheless, two days later, Walker’s file was flagged as “not approved” for safety sensitive work. Dr. John
        Holland, M.D., Union Pacific’s former Chief Medical Office had intervened to require Walker to undergo secondary testing with Union Pacific’s Light Cannon test, based on Walker’s previous Ishihara failures in 2010 and 2013. On July 8, 2019, Walker took and failed Union Pacific’s Light Cannon test. Based on this failure, Union Pacific determined that Walker could not work in a position requiring accurate color signal recognition, and thus he could not work in his current position.

        In April 2016, after Union Pacific implemented the Light Cannon test, Walker was an employee who had “failed the primary color vision field testing on [his] last medical certification exam” (his 2013 Ishihara test), but Union Pacific did not retest him using the Light Cannon test despite the recommendation of the NTSB. Indeed, when Walker passed the Ishihara in June 2016, Union Pacific still did not make Walker take the Light Cannon secondary field test. Not until Walker failed the Ishihara in June 2019 did Union Pacific require him to take the Light Cannon secondary CVFT.

        i. Walker’s Motion Challenging Fender

        Fender’s opinion that the Light Cannon test is in compliance with the rules and regulations of the FRA is irrelevant

        Walker argued that Fender’s opinion that the Light Cannon test “complied” with the FRA regulations is irrelevant. He also contended that with this opinion out as irrelevant, Fender is not qualified to opine about his remaining opinions, particularly about the “efficacy” of the Light Cannon test. Walker also asserted that Fender’s opinions other than those related to the FRA regulatory framework (which are irrelevant) are unreliable and not helpful to a jury.

        Walker contended that Fender’s opinion that the Light Cannon test is in compliance with the rules and regulations of the FRA is irrelevant to this case because the Court ruled at summary judgment that Union Pacific did not have to subject Walker to the Light Cannon test under FRA regulations, and may even have been precluded from doing so under the regulations.

        The Court can instruct the jury as to the legal requirements of the FRA, to the extent they are relevant. Further, whether the Light Cannon is “compliant” with the FRA, to the extent that may be relevant, is a legal conclusion and not a proper topic for expert testimony. Therefore, to the extent Fender’s testimony is intended to explain FRA rules and regulations regarding color vision acuity testing to the jury or opine that the Light Cannon was compliant with FRA rules and regulations, such testimony is improper.

        The Court held that Fender may not opine about how Walker’s case compares to cases presented to the Locomotive Engineer Review Board or the Operating Crew Review Board, or that the Light Cannon test is in compliance with FRA rules and regulations per the decisions of those review boards. Such a discussion is of minimal relevance and is unduly prejudicial and potentially confusing to the jury.

        Fender is qualified to opine as to whether the Light Cannon test was “valid” as that term is used in the Best Practices

        Walker argued that Fender is unqualified to render an opinion regarding the efficacy of the Light Cannon test, and that the opinion is unreliable and unhelpful. Fender spent decades working in railroad operations and safety. He explained at the hearing that he had frequent exposure to railroad signals. He also saw the Light Cannon test in operation. The Court held that Fender is qualified to opine as to whether the Light Cannon test was “valid” as that term is used in the Best Practices—meaning that the test reasonably matched real world operating or working conditions.

        Fender opined generally in his report that the Light Cannon test is “employee friendly” because it shows all four lights to orient the examinee and is “a practical, well-developed, and implemented test which replicates real world conditions.” During Walker’s 2019 test, he was not given the 2016 protocol (or the 2019 protocol as it is identified in Rabin’s testing); nor was he given the modified 2020 protocol. Nonetheless, the experts’ opinions about the efficacy of the Light Cannon test after the 2020 changes were implemented provide some probative value to the test taken by Walker, which involved a hybrid protocol between the 2016 and 2020 testing protocols.

        The Court found that Fender’s opinion about the efficacy of the 2020 Light Cannon test, even though he repeatedly emphasized the importance of all four colors first being shown to the examinee, is somewhat helpful to the jury. It also is reliable because Fender has decades of related experience in the industry and personal experience viewing the Light Cannon test.

        The remaining aspects of Fender’s opinion also are reliable and potentially helpful to the jury based on Fender’s experience and the issues in this case regarding railroad safety and the need for color vision acuity

        The Court held that Fender may testify to Union Pacific’s general rail business and rail infrastructure, its importance in the supply chain, and its importance to national security and the military. He also may testify generally to the complexity and business of the rail lines and Union Pacific’s rail lines, in particular. Fender further generally may describe safety concerns, signaling systems, and the importance of color vision acuity to signaling systems and safe rail operations.

        Walker’s Motion Challenging Rabin

        Rabin is a limited expert witness disclosed under Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure. Accordingly, he did not provide (and was not required to provide) an expert report. As an initial matter, the Court holds that, as with Fender, Rabin may not testify that the Light Cannon test complies with or is valid under the FRA’s rules and regulations.

        Walker sought to ensure that Union Pacific does not attempt to have Rabin testify regarding anything specific to Walker—his color vision acuity, the application of the Light Cannon test with respect to Walker, or his ability to perform his job safely. The Court agreed that these issues are outside the scope of Rabin’s disclosed testimony.

        The Court concluded, however, that Union Pacific has sufficiently disclosed its intention to elicit testimony from Rabin regarding his 2019-20 study of the Light Cannon test.

        Counsel for Union Pacific also argued that there should be no temporal distinction between Rabin’s testimony regarding the 2016 and 2020 Light Cannon tests because Rabin noted that both versions of the test nearly equally captured persons with color vision deficiencies. This case, however, is about an employee who alleges that he does not have any color vision deficiency but instead was regarded as having such a deficiency because of his earlier failures of the Ishihara test.

        Although Rabin’s opinion regarding the effectiveness of the Light Cannon is based on the modified 2020 test and testing protocols, like Fender’s opinion it still has some probative value and is thus somewhat helpful to the jury. This is because Walker did not receive the 2016 testing protocol. Thus, the Court held that Rabin may testify as to the efficacy of the 2020 Light Cannon and whether it accurately mimics actual operating or working conditions in the field.

        Union Pacific’s Motion Challenging Neitz

        Neitz mistakenly opined that the Light Cannon test must be validated as a scientific test instead of a field test

        Union Pacific first argued that Neitz mistakenly opined that the Light Cannon test must be validated as a scientific test instead of a field test. They designed the Light Cannon as a field test, not a scientific test. It is intended to match newer LED signals. Regardless of the dispute about the validity of the Light Cannon test, the Court agreed that it is a field test and not a scientific test. Walker argued, however, that because the Light Cannon does not use any actual equipment from the field, it cannot be a field test.

        That, however, goes to the “validity” of the field test, not to whether it is a field test. The Court will preclude, as irrelevant and misleading, Neitz from testifying that the Light Cannon test was required to undergo rigorous scientific study or peer review or must meet the standards of a scientific test to be a valid secondary field test.

        Union Pacific also challenged the helpfulness of Neitz’s opinion because he does not provide a test that would suffice under the regulations. Neitz, however, discussed the advantages and disadvantages of several available tests. The Court held that this challenge goes to the weight of his opinion, not its admissibility.

        Neitz’s opinion is unreliable because it relies on Rabin’s 2019-20 testing regarding the Light Cannon test

        Finally, Union Pacific argued that Neitz’s opinion is unreliable because it relied on Rabin’s 2019-20 testing regarding the Light Cannon test without considering Rabin’s later deposition testimony regarding the validity of the Light Cannon test after the 2020 changes had been implemented and because Neitz has never seen the Light Cannon test.

        The Court held that Neitz may focus on the pre-2020 test, which is more similar to the test given to Walker than the 2020 test, and Union Pacific can challenge through cross examination why Neitz did not further consider Rabin’s evaluation of the Light Cannon post-changes, and whether Neitz is moved by Rabin’s change of heart after the 2020 changes to the Light Cannon were implemented.

        The Court held that Neitz is highly qualified regarding color vision acuity examinations, has reviewed Walker’s examinations and medical records, has reviewed the 2019-20 test data about the Light Cannon, understands color vision acuity testing in general, and offers a variety of opinions that are helpful to the jury on these topics. His opinions specific to the Light Cannon test do not necessarily require that he have seen the device, because he differentiates the pre- and post- 2020 protocols and relies on the underlying data from Rabin’s testing.

        In other words, Neitz is not improperly “parroting” the opinion of another expert, but has independently reached his own opinions, relying on the facts and data gathered by another testifying expert.

        Most of Neitz’s unchallenged testimony is unrelated to whether the Light Cannon test must undergo vigorous scientific testing

        Finally, Union Pacific does not specifically challenge most of Neitz’s proposed testimony, other than generally to assert that because it is “based on” his misunderstanding that the Light Cannon test is not a field test, it must be excluded. The Court disagrees. Most of this unchallenged testimony is unrelated to whether the Light Cannon test must undergo vigorous scientific testing.

        This includes:

        (a) color vision acuity in general

        (b) persons may not pass the primary color vision FRA test but still may safely work as a locomotive engineer or conductor because they have sufficiently color vision acuity to safely perform their duties

        (c) how the majority of anomalous trichromats who fail the Ishihara can recognize and distinguish between railroad signals and the need for a valid test to separate out those who cannot

        (d) Rabin’s 2019-20 study demonstrated that the Light Cannon test cannot screen anomalous trichromats who are perfectly capable of reading colored signals from those who cannot

        (e) Rabin’s 2019-20 study showed that the Light Cannon was not a test that was reliable or valid (e.g., reasonably matched actual operating or working conditions), and reinforced he and Ivan’s 2016 report reaching the same conclusion

        (f) a discussion of Walker’s past test results, including improper grading

        (g) a discussion of Walker’s medical history and how it related to his color vision acuity

        (h) a description of how Walker had consistently passed the color vision tests sufficient to show adequate color acuity.

        The Court finds that all of this testimony is reliable and would be helpful to the jury.

        Held

        The Court granted in part and denied in part Plaintiff’s motion to exclude the testimony of Steven Fender and Jeff Rabin, and Defendant’s Daubert motion to exclude the testimony of Jay Neitz.

        Key Takeaway:

        • Fender’s opinion about the efficacy of the 2020 Light Cannon test, even though he repeatedly emphasized the importance of all four colors first being shown to the examinee, is somewhat helpful to the jury. It also is reliable because Fender has decades of related experience in the industry and personal experience viewing the Light Cannon test.
        • Although Rabin’s opinion regarding the effectiveness of the Light Cannon is based on the modified 2020 test and testing protocols, like Fender’s opinion it still has some probative value and is thus somewhat helpful to the jury. This is because Walker did not receive the 2016 testing protocol. Thus, the Court held that Rabin may testify as to the efficacy of the 2020 Light Cannon and whether it accurately mimics actual operating or working conditions in the field.
        • Neitz is not improperly “parroting” the opinion of another expert, but has reviewed Walker’s examinations and medical records, has reviewed the 2019-20 test data about the Light Cannon, understands color vision acuity testing in general, and offers a variety of opinions that are helpful to the jury on these topics.

        Case Details:

        Case Caption: Walker V. Union Pacific Railroad Company
        Docket Number: 3:22cv1011
        Court: United States District Court, Oregon
        Order Date: December 19, 2024