Expert Witness Profiler

Tag: Error

  • Accident Reconstruction Expert Witness’ Supplemental Report Correcting Mathematical Errors Admitted

    Accident Reconstruction Expert Witness’ Supplemental Report Correcting Mathematical Errors Admitted

    Plaintiff Kimberly Allcorn filed a lawsuit to recover damages for injuries from a collision with a tractor-trailer. Defendant Kay Beach, driving the tractor-trailer, worked for Western Flyer Express, LLC at the time.

    Both vehicles traveled northbound on a four-lane highway with a 65-mph speed limit. Allcorn was in the right lane ahead of Beach, who was in the left lane at 71 mph. As Allcorn changed lanes, moving slower than Beach, the tractor-trailer struck the rear of Allcorn’s vehicle despite applying the brakes.

    There was a fact dispute as to whether Beach, had she been driving the speed limit, could have avoided the collision. On June 10, 2024, Allcorn designated Soan Chau as an accident reconstruction expert witness. Chau’s report concluded that if Beach had driven 65 mph, she could have avoided the crash.

    On July 9, 2024, the Defendants provided the testimony of their own accident reconstruction expert witness, who found errors in Chau’s calculations. It was alleged that Chau’s report misrepresented Beach’s speed as 76 mph instead of 71 mph and claimed that even at 65 mph, the crash would have been unavoidable.

    On August 7, 2024, the Plaintiff submitted a corrected report from Chau. Chau maintained that Beach could have avoided the crash at 65 mph.

    The Defendants requested the Court strike the report, arguing it was untimely and exceeded the scope for revisions. The Plaintiff claimed the report was both proper and timely.

    Accident Reconstruction Expert Witness

    Accident Reconstruction Expert Witness

    Soan Chau is a transportation consultant specializing in vehicular accident analysis, with over 30 years of experience in cases involving passenger vehicles, tractor-trailers, motorcycles, bicycles, and pedestrians. Throughout his career, Chau has analyzed over a thousand cases, contributing expertise in scene preservation, documentation, surveying, reconstruction, simulation, animation, and other transportation-related matters.

    Soan Chau earned a Bachelor of Science in Civil Engineering from the University of Florida in 1993. He further pursued advanced studies at the University of Florida, completing all required coursework for a Master of Science in Traffic Engineering between 1997 and 1999.

    He is also a certified Event Data Recorder (EDR or “black box”) analyst and retriever for both commercial vehicles and passenger cars.

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

    Discussion by the Court

    Federal Rule of Civil Procedure 26(e) requires timely supplementation if a prior disclosure is materially incomplete or incorrect, and the information has not otherwise been provided during discovery. Additionally, under the present Court’s Local Uniform Civil Rule 26(a)(5), such supplementations must be made at appropriate intervals “and in no event later than the discovery deadline established by the case management order.”

    The Court found no merit in the Defendants’ argument that supplementation is only required when based on new information unavailable at the time of the initial disclosure. Instead, Rule 26(e) clearly requires supplementation when a party learns of an error or omission, as occurred here.

    The Defendants also argued that Chau’s supplemental report was unnecessary because their expert had already identified the errors. The Court held that this argument undermined the Defendants’ request for relief. If the corrections were already known, Chau had no obligation to provide them, and his supplemental report would have been gratuitous. However, the Plaintiff did not advance this position.

    The Court concluded that once Chau learned of the errors in his calculations, he had a duty to correct them promptly. Chau complied with this duty by submitting a supplemental report within 30 days, well before the discovery deadline. The Court emphasized that Chau did not offer a new opinion disguised as a supplement. Instead, he corrected mathematical errors in his calculations without altering his opinion.

    The Court found nothing improper in Chau’s actions, as his supplemental report adhered to both the letter and spirit of Rule 26(e).

    Held

    The Court denied the Defendants’ motion to strike the supplemental report of Plaintiff’s accident reconstruction expert witness Soan Chau.

    Key Takeaway:

    The Court admitted Soan Chau’s supplemental report, emphasizing the importance of timely corrections when an expert discovers errors in their calculations. Under Federal Rule of Civil Procedure 26(e), experts are required to correct any material inaccuracies in their disclosures, even if no new information is introduced.

    The Court found that Chau’s corrected report, submitted within the required timeframe, was a necessary and appropriate response to the identified errors. Importantly, the Court noted that Chau’s supplemental report did not offer any new opinions but merely corrected mathematical errors without altering his original conclusions. In conclusion, the Court held that Chau’s actions complied with the letter and spirit of the Rule, denying the Defendants’ motion to strike the report.

    Please refer to the blog previously published about this case:

    Physical Medicine & Rehabilitation Expert Witness’ Testimony Indicating a History of Post-Concussive Syndrome Deemed Speculative

    Case Details:

    Case caption: Allcorn V. Beach Et Al
    Docket Number: 1:23cv121
    Court: United States District Court for the Northern District of Mississippi, Aberdeen Division
    Dated: December 12, 2024
  • Testimony of Family Medicine Expert Witness on the Issue of Damages Declared a Nullity

    Testimony of Family Medicine Expert Witness on the Issue of Damages Declared a Nullity

    A patient brought a health care liability action against his psychiatrist and the psychiatrist’s employer, alleging the psychiatrist engaged in improper sexualized conduct that caused him psychological injury.

    Plaintiff Tray Simmons is a survivor of childhood rape which he experienced in 2010. Simmons alleged that Dr. Shahidul Islam encouraged him to read the chapter of his book Layers aloud in which he described the 2010 rape while Islam visibly touched himself, made physical contact with Simmons, and backed Simmons into the corner of the office.

    Plaintiff’s expert, Sherri Studstill, gave conflicting testimony relating to the issue of damages.

    In her affidavit, Studstill asserted that “[t]here is evidence that Simmons suffered monetary and mental health harm as a result from either the alleged events occurring in Islam’s office or the documented events from the recorded [phone] calls.”

    However, during her deposition, Studstill said that she “didn’t go into damages” and that she only believed damages for emotional distress were “possible” based on Simmons’s allegations, the opinion said.

    Family Medicine Expert Witness

    Sherri Studstill is a licensed physician who has a background practicing in Family Medicine, Emergency Medicine, Occupational Medicine, Sports Medicine, and Urgent Care Medicine, and holds a Masters in Public Health Degree with a focus on Behavioral Science and Health Science.

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

    Discussion by the Court

    Relying on the cancellation rule, the trial court determined a conflict existed between the Studstill’s affidavit and deposition testimony relating to the issue of damages.

    The trial court concluded that Studstill’s deposition testimony triggered the cancellation rule and invalidated her earlier opinions related to Simmons’s alleged damages.

    The judge cited 2019 Tennessee Supreme Court case law in TWB Architects v. Braxton , which established that when a witness makes contradictory statements, “those statements cancel each other out and are considered to be ‘no evidence’ of that fact.”

    Appellate Judge Jeffrey Usman cannot find error in the trial court’s analysis in the present case, applying the cancelation rule and rendering Studstill’s testimony on the issue of damages a nullity.

    Held

    The Court held that Sherri Studstill’s testimony on the issue of damages was inadmissible.

    Key Takeaway:

    Studstill indicated in her affidavit that as an expert she had concluded that Simmons had suffered damages as a result of Islam’s negligent professional conduct. In her deposition, however, Studstill disclaimed any such conclusion. She indicated that damages were a possibility but that she had not made any determination that Simmons had suffered any actual damages. As to the question of whether Studstill offered expert testimony as to damages, these statements are contradictory. Critically, no admissible explanation from Studstill was offered addressing the contradiction. Therefore, the appellate court cannot find error in the trial court’s analysis in the present case, applying the cancelation rule and rendering Studstill’s testimony on the issue of damages a nullity.

    Case Details:

    Case Caption: Tray Simmons V. Dr. Shahidul Islam Et Al.
    Docket Number: M2023-01698-COA-R3-CV
    Court: Court of Appeals of Tennessee at Nashville
    Order Date: December 03, 2024
  • Economics Expert Witness’ Opinions of the Purported Economic Loss of Each Plaintiff Admitted

    Economics Expert Witness’ Opinions of the Purported Economic Loss of Each Plaintiff Admitted

    This case arises out of Plaintiffs’ employment with McKesson and their allegation that McKesson discriminated and retaliated against them by denying them religious accommodations to McKesson’s COVID-19 Vaccination Protocol and terminating their employment. Plaintiffs sought damages which, including lost wages, in the form of back pay and front pay, and fringe benefits.

    Plaintiffs retained Larry D. Stokes, Ph.D., of Beta Business Consulting, LLC, as an expert witness to provide his opinions of the economic losses purportedly suffered by each Plaintiff.

    Defendants claimed that Stokes’ reports and testimony are inadmissible because his lack of knowledge reveals them to be wholly unreliable.

    Economics Expert Witness

    Larry D. Stokes is a forensic economist with over 40 years of experience in litigation related economics. He founded the Beta Business
    Consulting, LLC which provides provides economic analysis reports, research and expert testimony for economic damage claims involving personal injury, wrongful death, employment (loss of earning capacity) and more.

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

    Discussion by the Court

    Stokes based his opinions on Plaintiffs’ earnings history, including the value of fringe benefits. To begin with, economists typically rely on W-2’s, personal information supplied by Plaintiffs in answers to economists’ questionaries, and employers’ information about compensation.

    The Court found that Defendants’ motion lists seven items Stokes did not recall at his deposition. However, Defendants have not shown that these seven items are information essential to Stokes’ opinions. For example, Defendants argue that “Stokes did not know how he was retained for this case or when he began working on the analysis,” but fail to explain how this information is necessary foundation for his opinions.

    Defendants have not addressed the facts and data Stokes used in reaching his opinions. That he did not remember at his deposition seven questions asked by Defense counsel might make for fruitful cross-examination, but the Court held that his failure to remember when he was employed or what information was requested of Plaintiffs does not show he lacked reliable data.

    Defendants also argued that Stokes’ opinions should be excluded at trial because he “conceded that there were multiple errors in his initial reports at least one of which was a ‘pretty obvious mistake’ which ‘had a substantial impact.”’ However, the Court found that Stokes’ initial reports were revised, and the conceded errors were corrected.

    The motion also sought exclusion of Stokes’ opinions from trial because he relied on unverified information provided by Plaintiffs or their counsel. However, the Court held that there is no basis to expect an expert to personally interview Plaintiffs and verify their history. To the contrary, Fed. R. Evid. Rule 703 specifically authorizes experts to base opinions “on facts or data in the case that the expert has been made aware of or personally observed.”

    Held

    The Court denied the Defendants’ motion to strike the expert testimony and report of Plaintiffs’ expert witness Larry D. Stokes.

    Key Takeaways:

    • Expert reports are hearsay and normally not admitted at trial, absent stipulation. Experts are expected to be prepared to discuss their opinions and the basis of their opinions when they are deposed. But if an expert does not remember how the data was gathered or who prepared what portion of a report, his opinion is not discarded if the report sufficiently details the information he relied on in reaching his opinions. Typically, the expert is allowed to review his report and refresh his memory.
    • That an expert makes errors that are later corrected in supplemental reports does not show that the expert’s opinions lack sufficient facts or data. A few inconsequential errors in an initial report that was later revised to correct the errors do not warrant the exclusion of the expert’s opinions.

    Case Details:

    Case Caption: Loyd Et Al V. Mckesson Corporation Et Al
    Docket Number: 2:22cv2065
    Court: United States District Court, Arizona
    Order Date: September 12, 2024
  • Class List Prepared By Consumer Protection Expert Witness Using Standard Data Analysis Techniques Admitted

    Class List Prepared By Consumer Protection Expert Witness Using Standard Data Analysis Techniques Admitted

    Congress enacted the Telephone Consumer Protection Act (TCPA) to mitigate intrusive telemarketing practices. The TCPA “prohibits calls to numbers on the national Do-Not-Call registry [“NDNCR”].”

    To help combat telemarketing calls to numbers on the NDNCR, a database that lists the telephone numbers of individuals who have requested that telemarketers not contact them, the TCPA created a “consumer-driven process that would allow objecting individuals to prevent unwanted calls to their homes.”

    The TCPA prohibited telephone solicitations to a “residential telephone subscriber who has registered his or her number on the national donot-call registry.” Mantha, on behalf of the putative class, alleged a single claim: “by sending more than one call in a 12-month period to a residential telephone number listed on the [NDNCR] without express written consent, QuoteWizard violated the TCPA’s do-not-call registry provisions.”

    On October 29, 2019, Mantha brought a class action lawsuit against QuoteWizard in this Court, alleging violations of the TCPA.

    Plaintiff Joseph Mantha filed a motion for class certification while QuoteWizard filed a motion to exclude the testimony of Anya Verkhovskaya, Mantha’s expert witness.

    Consumer Protection Expert Witness

    Anya Verkhovskaya is a nationally recognized expert witness who has provided expert analysis, testimony, and litigation support services in federal and state class actions relating to the TCPA, consumer protection, human and civil rights, securities fraud, ERISA, antitrust, pharmaceuticals, and insurance, as well as in fairness actions before the U.S. Securities and Exchange Commission, among others. Verkhovskaya has been a pioneer in methods of analyzing mass consumer data, including telephone call and text message records and voice recordings numbering in the billions.

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

    Discussion by the Court

    Mantha proposed a Class defined as follows:

    “All persons within the United States (a) whose residential telephone numbers were listed on the National Do Not Call Registry, and (b) who received more than one telemarketing text within any twelve-month period at any time from Drips, (c) to promote the sale of QuoteWizard’s goods or services, and (d) whose numbers are included on the Class List.”

    Mantha’s expert, Verkhovskaya, prepared the “Class List” described in the proposed Class Definition. Using standard data analysis techniques, she prepared a list, substantially at the direction of counsel for Mantha, of a subset of persons who satisfy the proposed Class Definition, while eliminating potential legal or factual issues by narrowing the Class.

    From this process, Verkhovskaya found that QuoteWizard had sent 314,828 text messages to 66,693 telephone numbers that “satisfied the [NDNCR] requirements of having received, on a residential number listed on the national do-not-call registry, more than one text message[] in a 12-month period.”

    In challenging the proposed Class List and seeking to exclude Verkhovskaya’s analysis, QuoteWizard raised several criticisms.

    Verkhovskaya’s Methodology Does Not Identify Mantha

    QuoteWizard alleged that Verkhovskaya’s testimony should be rejected because her process failed to identify Mantha, whom she manually added to the Class List.

    The Court already found that (i) Mantha listed his number on the NDNCR, (ii) his number is residential, (iii) QuoteWizard sent him eight text messages in ten days, and (iv) the texts from QuoteWizard amounted to “telephone solicitations” within the meaning of the TCPA.

    Thus, Mantha met parts (a) through (c) of the proposed Class Definition. He met part (d) when Verkhovskaya added him to the proposed Class List. Nothing more is legally required.

    Verkhovskaya has not represented that her methodology identifies everyone from the files obtained from QuoteWizard who could possibly fit within the proposed Class Definition. Rather, she offers her data analysis as a means of identifying a subset of all possible class members for certification as a class. The Court held that it is irrelevant for Daubert purposes that she manually added Mantha to the Class List.

    Decisions of Other Courts Considering Verkhovskaya’s Reports

    QuoteWizard urged this Court to exclude Verkhovskaya based on the rulings of other courts. The Court has reviewed the various cases cited by QuoteWizard where other courts have excluded Verkhovskaya’s methodology, as well as other cases cited by Mantha.

    QuoteWizard relied principally upon two cases arising under different sections of the TCPA which, necessarily, entailed different analyses by Verkhovskaya. The Court held that these cases are not persuasive here. As to the other cases cited by QuoteWizard in its motion, they either involved the denial of Daubert motions to exclude Verkhovskaya’s testimony or did not involve Daubert motions at all. 

    Reliability of the PacificEast Data

    QuoteWizard next alleged that Verkhovskaya’s testimony should be rejected because she used “unreliable” data from PacificEast in formulating her opinions.

    PacificEast is a “data processing service provider.” It has been in business for over twenty years. One service it offers, labeled the “NDNCR Lookup Service,” provides information about whether a phone number appears on the NDNCR. Verkhovskaya retained PacificEast to perform this service. This is how she determined whether a phone number appears on the NDNCR. The Court held that using a widely available, long-standing, commercial service to run a database check is a perfectly normal and reasonable methodology.

    Next, Verkhovskaya used the “Business Number Lookup”—another service offered commercially by PacificEast. As part of this service, PacificEast reports whether a number is a “business” or “residential” number. The Court is not now evaluating the correctness of Verkhovskaya’s opinions, only their admissibility. In this case, Verkhovskaya was not using this service to conclusively determine whether a number was “residential.” Rather, it aided her in narrowing the proposed Class List to numbers that are more likely to be residential.

    Finally, to the extent QuoteWizard challenges more generally the “residential” determination Verkhovskaya did make, the Court held that her opinions withstand the exclusion motion. Numbers on the NDNCR are presumed residential. Of course, QuoteWizard itself is the source of the original list of numbers, and the fact that it was aiming its telemarketing campaign at consumers tends to suggest the original list is comprised of residential numbers. Moreover, Verkhovskaya eliminated numbers with current business associations. 

    Of course, even if her use of PacificEast has left some errors in her proposed Class List, such that some of the members of the proposed Class List do not meet the Class Definition, the Court held that this does not warrant exclusion of her testimony.

    QuoteWizard’s “False Positives” Challenge

    QuoteWizard next alleged that Verkhovskaya’s testimony should be excluded because her methodology has a high error rate, illustrated by a number of “false positives” or phone numbers presently on the proposed Class List that should not be. 

    Insofar as QuoteWizard contended, in connection with either pending motion, that 68% of the users on the proposed Class List lack standing to bring a TCPA claim because they did not register their numbers on the NDNCR, the Court disagrees. There is no statutory requirement that the phone number’s user—as opposed to the subscriber—register the number. Rather, the TCPA afforded a private right of action to a “person who has received” calls placed “in violation of” the statute’s regulations.

    The Court added that the method Verkhovskaya selected—using a commercially available service for its intended purpose—is a reliable one. This date-focused challenge rests on speculative inferences arising from an unexplained email. Even assuming, for purposes of this Motion only, that the June 1, 2003, date reflects an error or problem in the data—the error is a weight, not admissibility, issue. 

    Held

    The Court denied QuoteWizard’s motion to exclude the testimony of Anya Verkhovskaya and allowed Mantha’s motion for class certification.

    Key Takeaway:

    The focus in a Daubert challenge is not “primarily concerned with a proposed expert’s conclusions,” but with “making a ‘preliminary assessment of whether the methodology underlying the testimony is scientifically valid and of whether that methodology properly can be applied to the facts in issue.’”

    Case Details:

    Case Caption: Mantha V. Quotewizard.Com, Llc
    Docket Number: 1:19cv12235
    Court: United States District Court, Massachusetts
    Order Date: August 16, 2024