Vincent McKinney’s death on April 15, 2021, at a U-Haul construction site led to a lawsuit, filed by his surviving spouse and next kin Alberta Louise Perry, Plaintiff, with Jenkins & Stiles, LLC, a construction company and the general contractor for the site, being the Defendant. Despite some disputed facts, parties agreed that McKinney, who was delivering cargo to the construction site, specifically five bundles of insulated panels, met his demise when the cargo, being unloaded by Curtis Kennedy, a forklift operator and jobsite superintendent for the Defendant, fell off the trailer and onto McKinney. McKinney lost his life on the scene.
According to Kennedy, he directed McKinney to complete the unstrapping of the load so that Kennedy could initiate the removal of the cargo from the trailer using a forklift. Kennedy asserted that McKinney had removed all the straps before the offloading began, although he wasn’t entirely certain. Kennedy testified that, based on McKinney’s body language, he believed McKinney knew he was approaching with the forklift. As Kennedy commenced offloading the cargo, the bundles fell off the forklift and landed on McKinney, who was still positioned next to the trailer.
Shortly after the incident, an investigator named Michael Johnson (“Johnson”), representing the Tennessee Occupational Safety and Health Administration (“TOSHA”), arrived at the scene. Johnson conducted interviews with several witnesses, including Robert Hutton (“Hutton”), who was then an employee of Chattanooga Fire, LLC. During his statement to the TOSHA investigator, Hutton mentioned that, before the incident, Kennedy had already unloaded some cargo, as he saw it stacked nearby. Hutton reported hearing someone say, “Curtis your [sic] clear, Go”. Following that, he heard a crash and observed McKinney under the cargo. Hutton explicitly stated, “Everyone was clear, Curtis had a good visual of the work area. I didn’t see anything that appeared to be unsafe”. Unfortunately, Hutton passed away on August 3, 2022.
As part of its expert disclosures, the Defendant identified Charles A. Eroh, P.E. Among several other conclusions, Eroh asserted that McKinney bore responsibility for the incident. This was attributed to his departure from the safe area at the driver’s side truck fender and entering the fall zone. Eroh claimed that McKinney was fully aware of ongoing offloading activities and had verbally communicated with Kennedy to proceed with the unloading.
The Plaintiff contested Eroh’s conclusion under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc. The challenge asserted that Eroh’s determination that McKinney bore responsibility would not assist the jury since it was the jury’s role to make that determination. Additionally, the Plaintiff argued that Eroh should not be allowed to testify about McKinney’s state of mind. The Plaintiff further contended that Eroh should be prevented from referencing Hutton’s statement. In response, the Defendant generally argued that Eroh’s opinion was based on reasonable inferences drawn from his accident investigation and that he had the right to rely on the evidence he considered.
Engineering Expert Witness
Charles A. Eroh is a professional engineer who works as a Principal Consultant at Rimkus Consulting Group. He is expected to testify within a reasonable degree of professional certainty in the field of commercial machinery operation and construction site safety. Charles Eroh will offer testimony on issues such as training and certification of forklift operators and construction site workers, industry standards in forklift operations and construction site procedures, industry standards of equipment maintenance, forklift operating capabilities, and service, maintenance, inspection and troubleshooting for type of forklift used on April 15, 2021, and post-accident inspections to determine cause.
Discussions by the Court
Federal Rule of Evidence 702 required judges to ensure the relevance and reliability of any scientific testimony or evidence. The Court’s gatekeeping function, as established in Daubert v. Merrell Dow Pharmaceuticals, Inc., mandated that scientific testimony or evidence, including that based on specialized knowledge, be both relevant and reliable. The party offering the expert testimony bore the burden of proving admissibility, and district Courts had leeway in determining the reliability of expert testimony, with decisions subject to review for an abuse of discretion. The Court applied the current version of Rule 702, effective December 1, 2023, which clarified the preponderance standard for reliability-based requirements.
According to the Plaintiff, Eroh’s opinion that McKinney bore responsibility for the incident was deemed unhelpful to the jury, as it was the jury’s role to determine such issues. Although Eroh may have based his opinion on reasonable inferences drawn from his accident investigation, including a review of the TOSHA report, Hutton’s written statement, Kennedy’s deposition, and other relevant information, the Court agreed that it constituted a legal conclusion. The Court cited Asbury v. MNT, Inc., No. CIV. 12-252 KG/RHS, 2014 WL 6914235, (D. N.M. Apr. 22, 2014), which struck an expert’s opinion as an impermissible legal conclusion. The Court further highlighted that experts were not permitted to render legal conclusions, as explained in United States v. Melcher, 672 F. App’x 547, 552 (6th Cir. 2016), when he defines the governing legal standard or applies the standard to the facts of the case. Legal conclusions were considered unhelpful to the jury since they instructed the jury on the verdict to reach. Accordingly, the Court ruled that Eroh’s opinion assigning responsibility to McKinney for the incident was not admissible.
The Plaintiff also contested Eroh’s conclusion asserting that McKinney “was fully aware of ongoing offloading activities and had verbally communicated with Kennedy to proceed with the unloading”. Plaintiff argued that determining whether McKinney was fully aware was beyond Eroh’s expertise as he could not “read minds”. Eroh based this opinion on Hutton’s written statement, and Plaintiff contended that it was improper to rely on Hutton’s statement due to its inadmissible hearsay nature. The Plaintiff asserted that allowing the introduction of inadmissible hearsay through an expert’s opinion would be extraordinarily prejudicial.
The Defendant responded by asserting that an “expert may rely on hearsay testimony”. Given that they retained Eroh to “inspect the accident site and determine the cause of the accident”, the Defendant argued that Eroh was permitted “to reference the witness statement in discussing his opinions and bases for them”. The defense contended that not only did Eroh rely on Hutton’s statement, but he also drew from various sources, including the TOSHA report, Kennedy’s deposition, his site inspection, and the photographs and videos captured by the Knox County Sheriff’s Office.
The Plaintiff also mentioned a video recording taken by Attorney Graham Thompson on April 19, 2023, which included Hutton’s statements. However, according to the Defendant, Eroh reviewed this video after authoring his report, and “it did not form the basis of the opinions Eroh expressed in his written report”. The Defendant further stated that “Eroh testified in his deposition that although he reviewed that video, he did not remember what was said in it, and he believed it was similar to what was contained in Hutton’s written statement”. Since Eroh did not rely on the video recording, the Court did not address it.
In reviewing the parties’ arguments, two issues were identified: (1) whether Eroh was allowed to rely on Hutton’s statement in forming his opinion, and (2) whether Eroh was permitted to express opinions about McKinney’s state of mind. Regarding the issue of Eroh’s opinion about McKinney’s state of mind, specifically that McKinney “was fully aware of ongoing offloading activities”, the Court ruled that Eroh was not allowed to opine at trial about McKinney’s state of mind. The Court cited the principle that “an expert may not offer an opinion on someone else’s subjective beliefs or feelings”. The Court highlighted that experts can rely on a witness’s testimony but may not opine on someone’s thoughts. Consequently, the Court did not need to address the first issue in the context of the Plaintiff’s motion. The Court noted that the admissibility of Hutton’s statement was being contested through motions in limine filed by both Plaintiff and Defendant.
Held
The Court granted in part and denied in part Plaintiff’s Motion to Exclude or Limit the Testimony of Charles A. Eroh and Any Undisclosed Opinion Testimony by Defendant Jenkins & Stiles. Eroh was not allowed to testify that McKinney bears responsibility for the incident, nor was he permitted to provide testimony about McKinney’s subjective beliefs. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
The expert testimony in this case played a crucial role in determining liability for the tragic incident at a U-Haul construction site, where a cargo unloading operation led to the death of Vincent McKinney. Charles A. Eroh, P.E., identified by the Defendant as an expert, asserted that McKinney bore responsibility for the incident, citing his departure from a designated safe area and entering the fall zone. However, the Court, applying Rule 702 of the Federal Rules of Evidence, ruled that Eroh’s opinion assigning responsibility was inadmissible as it amounted to a legal conclusion. The Court emphasized that experts cannot render legal conclusions, particularly those instructing the jury on the verdict to reach. Additionally, the Court held that Eroh’s opinion on McKinney’s state of mind, specifically regarding awareness of ongoing offloading activities, was not admissible, as experts cannot offer opinions on subjective beliefs or feelings. The admissibility of witness statements, including Hutton’s, was contested due to hearsay concerns, with the Court emphasizing the importance of avoiding the introduction of inadmissible evidence through expert opinions. Overall, the Court’s rulings underscored the need for expert testimony to adhere to legal standards, focusing on admissible evidence and avoiding impermissible legal conclusions or opinions on subjective states of mind.
In March 2022, Defendants Edition Modern and Denis De La Mésière faced a lawsuit filed by Plaintiffs Jean Royère SAS and Jelena Markovic. Edition Modern, a small business, operated with approximately three full-time employees, including both owners and a few part-time workers. Denis De La Mésière, one of the owners, possessed over 40 years of experience in the furniture industry and immigrated to the United States from France in 1987. Since 2015, Edition Modern had been marketing and selling furniture inspired by Jean Royere, alongside pieces influenced by other modern French designers and items designed by Mésière himself. The Defendants countered by asserting that the Plaintiffs lacked copyright registrations for the works claimed in the case. The works in question comprised lighting products and furniture pieces, all categorized as useful articles, requiring Plaintiffs to demonstrate their separable features capable of existing independently from the utilitarian aspects of the articles.
The Plaintiff Jean Royère SAS and Jelena Markovic filed a motion to exclude testimony of the Defendants’ expert Charles Vranian. The Defendants Edition Modern and Denis de la Meisière had also filed a motion to exclude testimony of the Plaintiffs’ expert Paul Hatch.
Industrial Design Expert Witness
Paul Hatch has over 25 years of experience in product and industrial design. He is currently pursuing his Ph.D. in Learning Sciences from the University of Illinois at Chicago, where he also works as an adjunct faculty member. Hatch also earned a Bachelor’s degree with honors in Design for Industry from the University of Northumbria in the UK. His educational background includes Diploma in general art and design as well. Hatch has served as a CEO of TEAMS Design USA. Hatch has designed numerous furniture pieces across a diverse array of materials and manufacturing methods, including chairs, shelves, cabinets, tables and more.
Management Consulting Expert Witness
Charles J. Vranian has over 35 years of experience in the furniture industry, including 26 years at the renowned furniture company Herman Miller. He holds a Bachelor’s degree in Economics from Michigan State University and completed MBA coursework at Wayne State University. Vranian’s currently serves as a Founder and President of Vranian Business Development LLC, where he focuses on consulting, M&A projects, and patent disputes.Through his extensive work in the furniture industry, including in senior positions at a leading furniture design company, Vranian has developed expertise related to furniture design, development, manufacturing, and intellectual property issues.
Discussions by the Court
The Defendants contended that Paul Hatch, despite having experience in “product design” and “industrial design,” lacked a background in “sculptural” or “purely artistic” design. The claim suggested that Hatch’s assessment of works of art was irrelevant to the case, as he evaluated the “merit” of unrelated artworks to form opinions on the “sculptural features” and “aesthetic qualities” of the designs in question. The assertion emphasized that Hatch’s opinions hinged on an inexpert analysis, including references to certain “visual elements” explored by “many artists” without proper qualification or justification. The argument concluded that Hatch’s improper comparison of artworks and industrial designs should lead to the exclusion of his testimony by the Court.
However, the Court disagreed, citing Rule 702, which allowed expertise based on knowledge, skill, experience, training, or education. The Court emphasized a broad interpretation of expert qualifications and found Hatch’s over twenty-five years of professional experience in furniture and product design sufficient to testify on design-related issues. The Court dismissed the argument that Hatch’s industrial background disqualified him from addressing artistic questions, stating that no binding case law mandated the exclusion of his testimony on that basis.
Plaintiffs filed a motion to exclude Defendants’ Supplement to Rebuttal Expert Report of Charles Vranian, citing untimeliness and prejudice. According to Federal Rule of Civil Procedure 26(a), expert reports had to be disclosed by a specified deadline in the pretrial schedule. Failure to do so may result in exclusion unless the failure was justified or harmless under Rule 37(c)(1). Courts considered factors such as prejudice, the opposing party’s ability to remedy it, trial disruption likelihood, and bad faith or willfulness in determining harmlessness. The burden of proving harmlessness lay with the party facing sanctions. Courts possessed wide latitude in issuing sanctions under Rule 37(c)(1).
In this case, the Court-established pretrial schedule mandated initial expert disclosures by April 28, 2023, rebuttal expert disclosures by May 19, 2023, and set the expert discovery cut-off date for June 2, 2023. Following Plaintiffs’ service of the Expert Report of Paul Hatch on April 28, 2023, Defendants provided their Rebuttal Expert Report of Charles Vranian on May 19, 2023. Plaintiffs deposed Vranian on June 1, 2023. After both parties submitted motions for summary judgment on June 23, 2023, Defendants served a Supplement to Rebuttal Expert Report of Charles Vranian on June 27, 2023.
The Court determined that Defendants’ late submission of supplemental report did not comply with Rule 26(e)(1) and was prejudicial. Rule 26(e) allowed supplementation for correcting inaccuracies or filling gaps with information unavailable during the initial disclosure. The supplemental report, containing over fifty substantive revisions to Vranian’s original report, did not rely on previously unavailable information. The Court rejected Defendants’ characterization of the revisions as “clarifications,” deeming them an attempt to fortify Vranian’s opinions. This was considered inappropriate supplementation. The Court emphasized that the revisions aimed at strengthening opinions were improper. Moreover, Defendants submitted the supplemental report after the expert discovery period closed, without warning and without providing Plaintiffs the opportunity to depose Vranian regarding the changes. Consequently, the Court struck Defendants’ Supplement to Rebuttal Expert Report of Charles Vranian.
Plaintiffs sought the Court’s exclusion of Vranian’s testimony concerning copyright protection, contending that he did not apply the correct legal standard established in Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405, 137 S. Ct. 1002, 197 L. Ed. 2d 354 (2017). Additionally, Plaintiffs argued that Vranian lacked the necessary background and experience to qualify as an expert on this specific topic.
In 2017, the Supreme Court in the case of Star Athletica, L.L.C. v. Varsity Brands, Inc. established a two-part test for determining copyright protection concerning elements incorporated into the design of a useful article. The statute provides that a “pictorial, graphic, or sculptural featur[e]” incorporated into the “design of a useful article” is eligible for copyright protection if it is (1) identified separately from the utilitarian aspects and (2) capable of existing independently of those utilitarian aspects. Meeting the first criterion was relatively straightforward, requiring the recognition of a two- or three-dimensional element with pictorial, graphic, or sculptural qualities within the useful article. However, the second criterion, independent existence, was more challenging. It necessitated a determination that the identified feature could exist distinctly from the utilitarian functions of the article.
In essence, a component of a useful article’s design could obtain copyright protection if, when isolated from the article, it could be considered a pictorial, graphic, or sculptural work independently or when placed within another tangible medium.
During Vranian’s deposition, he explicitly stated his disagreement with the legal standards established in Star Athletica regarding copyright protection. Despite repeated questioning about the test for copyrightability, Vranian consistently expressed his disagreement with the established standards. The Plaintiff argued that instead of applying the correct legal standard, Vranian formulated his own tests for copyrightability. One such test was based on the “Furniture Customer Buying Process” outlined in his original report. Vranian suggested that when an interior designer is involved, the primary selection driver is the function of the pieces, and the design is intentionally holistic. He asserted that the selected piece’s elements are inseparable, constituting component parts of an overall holistic design for the client.
The Plaintiff objected strongly to Vranian’s creation of multiple ad hoc tests for copyright protection. Vranian devised various unconventional tests, including the “slight-modification test,” which suggested that copyright protection wouldn’t apply even if modifications allowed for separate imagining of the article’s features as a standalone sculptural work. He also introduced the “difficult-to-see-on-a-dark-floor test,” proposing that products not visible on a dark floor were ineligible for copyright protection. Furthermore, he introduced the “seating-and-table-product test,” excluding seating and table products from copyright protection based solely on his subjective experience that function precedes form for such items. Vranian also proposed the “fundamental-geometric-shape test,” stating that copyright protection wouldn’t extend to design features comprising basic shapes. Finally, he suggested the “furniture-pieces-with-useful-functions test,” asserting that furniture pieces, due to their functional nature, weren’t eligible for copyright protection, disregarding the potential separability of certain design features as sculptural works in their own right.
Vranian’s “supplement” was found to showcase numerous revisions attempting to align with the test established in Star Athletica. However, this highlighted his evident failure to adhere to the correct legal standard. Among the 57 substantial revisions made to the original report, about thirty replaced earlier conclusions regarding copyrightability, which Vranian had evidently misconstrued, with new language and analyses that mimicked and attempted to apply the legal standards delineated in Star Athletica.
The Court concurred with Plaintiffs, determining that Vranian lacked the qualifications to provide expert testimony on design issues. His background primarily involved business development roles. While he worked at Ford Motor Company in accounting and finance for ten years, and later spent twenty-six years at Herman Miller in product management and marketing roles, he never specifically served as a product designer. Although his general background at a furniture company made him qualified to speak on less design-intensive matters, the Court found that specific knowledge and experience in product design were essential for analyses under Star Athletica. Vranian’s demonstrated inability to correctly apply the key Star Athletica standard, as well as his reliance on an unsupported functionality test, indicated his lack of qualification. Additionally, the Court expressed concerns about the risk of juror confusion due to the improper legal tests underlying Vranian’s opinions on separability and independent existence.
Held
The Court denied Defendants’ Motion to Exclude the testimony of Plaintiffs’ expert Paul Hatch. However, Plaintiffs’ Motion to Exclude the testimony of Defendants’ expert Charles Vranian was granted in part. Vranian’s opinions on separability and independent existence were excluded, along with his supplemental report in its entirety. The Court allowed Vranian’s testimony solely on the issue of originality, with further limitations restricting it to the opinions contained in his original expert report. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
In the legal proceedings between Plaintiffs Jean Royère SAS and Jelena Markovic and Defendants Edition Modern and Denis De La Mésière, the expert testimony played a crucial role. Plaintiffs relied on the expertise of Paul Hatch, whose extensive background in product and industrial design was deemed sufficient by the Court, rejecting the Defendants’ motion to exclude his testimony. However, Defendants faced challenges with their expert, Charles Vranian. The Court limited Vranian’s testimony, excluding his opinions on separability and independent existence, citing his lack of specific qualifications and failure to apply the correct legal standard. The Court also struck Defendants’ late-filed supplemental report for Vranian, emphasizing the importance of timely and proper disclosure in adherence to the legal procedures. These decisions underscored the significance of expert witnesses in intellectual property cases and the need for their qualifications and methodologies to align with legal standards.
This case involved a lawsuit filed by the Plaintiff Daniel G. Mann against Defendant Quiktrip Corporation for negligence related to a slip and fall incident. On July 20, 2022, the Plaintiff initiated legal proceedings by filing a Petition in the Circuit Court of St. Louis County. The complaint alleged common law negligence against Quiktrip in connection to an incident on February 17, 2021, when Mann fell on a Quiktrip property in Maryland Heights, Missouri. Subsequently, on October 4, 2022, Quiktrip exercised its right to remove the case to the federal Court, citing diversity jurisdiction under 28 U.S.C. § 1441. Following this, on December 14, 2022, the Plaintiff filed a Consent Motion for Leave to File a First Amended Complaint, which was granted by the Court. In accordance with the granted motion, Plaintiff’s First Amended Complaint focused on a single cause of action, asserting negligence against Quiktrip. The basis for this claim was rooted in premises liability, specifically related to the Plaintiff’s fall on February 17, 2021.
Quiktrip initiated a motion to exclude the expert report, testimony, and opinions of the Plaintiff’s designated expert, Christopher E. Janson, a Certified Safety Professional with over thirty years of experience in safety, intended to provide a safety analysis to determine if there were conditions deemed defective or unreasonably dangerous.
In his report, Janson outlined several general opinions:
1. On the morning of February 17, 2021, QuikTrip employee Tommy Burrow attempted to clear snow and ice from the exterior steps and sidewalk and put down ice melt on the morning of the incident before 8:15 am.
2. QuikTrip had established policies and procedures for maintaining outdoor areas, including inspecting them for snow and ice conditions.
3. QuikTrip’s policies and procedures seemed to align with recognized standards for identifying and controlling slip and fall hazards.
4. Surveillance video footage for the relevant day did not show a QuikTrip employee inspecting the steps in question for at least one hour before Mann’s fall, despite documentation suggesting otherwise.
5. QuikTrip allegedly failed to adhere to its policies and procedures by not ensuring the inspection of the steps and associated landings.
6. If QuikTrip had performed the required upkeep walks as per its policies and procedures, Mann’s fall could have been prevented.
7. Mann’s fall was attributed to the unreasonably dangerous condition of the steps as maintained by QuikTrip.
Quiktrip presented two main arguments for the exclusion of Janson’s report, testimony, and opinions. Firstly, Quiktrip contended that Janson’s opinions lacked reliability in their principles and methods. Quiktrip asserted that the initial four opinions are factual statements, while the remaining three opinions did not possess a scientific or technical basis and would not provide the jury with insights beyond their own evaluation of the evidence. Quiktrip supported this argument by referencing the case Hall v. Target Corp., 8:22-cv-0914-KKM-AAS (M.D. Fla. July 21, 2023) where the Court excluded a majority of Janson’s opinions, deeming them speculative, not grounded in proper methodology, and surpassing industry standards. Secondly, Quiktrip argued for the exclusion of Janson’s opinions on the basis that they encroach upon the jury’s role and are generally speculative. Quiktrip maintained that the opinions in question are inadmissible as the jury can adequately weigh the evidence without the assistance of an expert.
The Plaintiff contended that Quiktrip’s motion to exclude expert testimony under Federal Rule of Evidence 702 should be denied, emphasizing that the admission of such testimony is permissive. In response to Quiktrip’s assertion that Janson’s opinions lacked reliable scientific principles and methods, the Plaintiff argued that the first four opinions were based on Janson’s knowledge, information, and experience applied to the case’s evidence, without directly addressing the reliability issue. Additionally, the Plaintiff argued that Janson’s remaining opinions were appropriate as they would assist the jury in understanding Quiktrip’s policies and procedures, particularly the alleged violations. The Plaintiff pointed to conflicting testimony from Quiktrip’s employees, suggesting confusion about the policies, and asserts that experts are permitted to testify on policy violations. Finally, the Plaintiff contended that Janson’s testimony, even if addressing the ultimate issue in the case, should be allowed as it aids the jury in its deliberations. The Plaintiff also contended that rules, standards, or training materials of a Corporate Defendant were invariably admissible. However, the Court emphasized that the admissibility of Janson’s testimony concerning those procedures was not necessarily influenced by the admissibility of such corporate documents.
Safety Expert Witness
Christopher E. Janson has over 30 years of experience as a safety professional. He holds a Bachelor of Science degree in Industrial Science from Truman State University and a Master of Science degree in Industrial Safety Management from the University of Central Missouri. Janson is a Certified Safety Professional (CSP). He is currently the Principal of Haines, Janson & Associates, LLC, which provides forensic and safety consulting services to attorneys, industry and insurance companies.
Discussions by the Court
The Court determines that the Plaintiff has not successfully demonstrated, by a preponderance of the evidence, the admissibility of Janson’s expert opinions. The Court’s assessment is that Janson’s opinions either consist of straightforward statements of fact, speculative conclusions lacking proper methodological support, or are otherwise deemed irrelevant and, consequently, not beneficial to the jury.
The Court deemed Janson’s opinions 1, 2, and 4 as mere statements of fact, making them impermissible as expert opinions. The determination of whether Burrow cleared the steps and applied snow melt, as well as Quiktrip’s policies and procedures for upkeep walks, could be established through other admissible evidence or by the policies and procedures themselves. The surveillance video itself provided insights into whether a Quiktrip employee inspected the area before the Plaintiff’s fall. The Court noted that the facts in question, including Burrow’s actions, Quiktrip’s policies, and the content of surveillance video footage, did not require expert testimony to be established. Drawing a parallel to the Hall case, the Court asserted that, akin to that precedent, Janson’s opinions concerning these factual matters should be excluded.
The Court found that the Plaintiff’s attempt to draw parallels between Janson’s opinions and those permitted in the Hall case was not persuasive. In Hall, Janson’s testimony was limited to statements such as “wet floors can be a slip and fall hazard” and “while walking, pedestrians look towards their objective, not directly in front of their feet, unless something draws their attention to that area.” These opinions were deemed acceptable as they pertained to industry standards of care. However, the Court noted that Janson’s report in the present case lacked similar opinions, and the Plaintiff did not successfully demonstrated how the opinions in Hall were comparable to those in question. As the Plaintiff has not established, by a preponderance of evidence, that these opinions did indeed necessitate Janson’s expert testimony, Opinions 1, 2, and 4 were deemed to be excluded.
The Court acknowledges that Opinion 3, though potentially an opinion, lacked demonstrated relevance to the issues in the case. While it is considered appropriate for a safety expert to testify on recognized standards for identifying and controlling slip and fall hazards, the Court concluded that whether Quiktrip’s policies and procedures met such standards did not have a bearing on the company’s potential liability in this negligence action. Consequently, the Court deemed the opinion inadmissible, subject to reconsideration.
The Court determined that Opinion 5 was not the type of opinion necessitating expert testimony. The jury was deemed capable of evaluating the presented evidence and deciding whether Quiktrip adhered to its own policies and procedures regarding the inspection of the steps. The Plaintiff’s argument suggesting the need for an expert due to alleged confusion in Quiktrip’s policies was deemed unconvincing. The Court asserted that the conflicting deposition testimony cited by the Plaintiff was evidence that could be presented directly to the jury, requiring no expert assistance for evaluation, as it did not involve scientific or technical knowledge. Similar to the discussion on Opinion 3, the Court was not persuaded that the issue of whether Quiktrip violated its upkeep walk procedures was relevant to the ultimate issue in the case. Consequently, Janson’s Opinion 5 was also excluded.
The Court concluded that Opinions 6 and 7 were speculative, lacking an explanation of the principles or methodology used by Janson to formulate them. Janson’s report failed to elucidate any scientific or technical basis for his opinion that a proper upkeep walk would have prevented the Plaintiff’s fall, as well as the assertion that the fall was caused by an unreasonably dangerous condition of the steps. The Plaintiff had not presented evidence demonstrating that Janson employed recognized principles or methodologies to derive these speculative conclusions. Consequently, as the Plaintiff had not established by a preponderance of evidence that Janson’s opinions relied on reliable principles and methods, Opinions 6 and 7 were also excluded.
Held
The Court granted Quiktrip Corporation’s Motion to Exclude the Expert Report, Testimony, and Opinions of Christopher E. Janson. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
The Court found that Janson’s opinions lacked reliability, with some being considered as simple statements of fact that did not require expert testimony. Additionally, opinions deemed speculative and lacking a clear scientific or technical basis were excluded. The Court emphasized that Janson’s opinions failed to provide insights beyond what the jury could determine through available evidence, and some were deemed irrelevant to the issues in the case. Ultimately, the Court ruled that Janson’s entire report, testimony, and opinions would be excluded, granting Quiktrip’s motion in this regard. This decision underscores the importance of establishing the relevance, reliability, and necessity of expert opinions in legal proceedings to ensure their admissibility.
This case arose from a motor vehicle accident on Interstate 55 in Scott County, Missouri. Plaintiffs Benjamin Behel, David Wallace, and Joye Wallace filed a lawsuit against Defendants Berney Wescott, Heritage Transport LLC, Bobby James, and Tracy Reynolds for damages sustained in the accident.
Behel was driving southbound in the right lane with an attached trailer. Wescott was driving a semi-tractor trailer behind Behel in the same lane. James was driving behind Wescott in the same lane. At some point, Wescott’s vehicle struck the rear of Behel’s trailer. James then veered into the left lane to avoid a collision. Wescott’s vehicle jackknifed, causing his trailer to swing into the left lane and collide with James’ vehicle. This forced James’ vehicle into the median where he collided with Behel, whose vehicle had moved into the median after being struck by Wescott.
Plaintiffs designated William Hampton as an expert witness to analyze the accident. Hampton prepared a report with opinions to which Defendants objected. Defendants Bobby Lynn James and Tracy Lonny Reynolds filed a motion to exclude the opinions and testimony of Plaintiffs’ expert William Hampton while Defendants Heritage Transport, LLC, and Berney P. Wescott filed a motion to limit the testimony of Hampton.
Accident Reconstruction Expert Witness
William E. Hampton is an expert in accident investigation and reconstruction, particularly in motor vehicle and commercial trucking accidents. Through his company W.E. Hampton & Associates, Inc., where he serves as President, Hampton provides accident reconstruction services and evaluates commercial motor carrier compliance, inspection, and safety matters, including the hiring and retention of truck drivers. He has experience investigating the causes of trucking accidents and assessing whether commercial trucking companies and their drivers violated regulations or safety standards.
Discussions by the Court
In Opinion 6, Hampton presented an opinion, asserting that Berney Wescott operated his vehicle as a distracted driver. This distraction allegedly stemmed from playing a college football game on his phone and looking to the rear of his vehicle for an extended period. According to Hampton, Wescott’s diverted attention led him to approach the Behel vehicle closely. Defendants Wescott and Heritage Transport, LLC, objected to this opinion, contending that it should be excluded. They argued that the opinion lacked sufficient factual foundation and was based solely on Hampton’s speculation. Specifically, the Defendants claimed that there was insufficient evidence for Hampton to conclusively assert that Wescott’s act of listening to a football game on his cell phone was a direct cause or contributor to the crash.
Upon a thorough examination of Hampton’s Opinion Number 6 and his deposition, it is evident that his conclusion regarding Wescott being a distracted driver stemmed from considering the totality of circumstances, rather than attributing it solely to one factor, such as listening to a football game. Despite the Defendants’ objection, which seemed to misinterpret Hampton’s stance by asserting that he concluded Wescott was a distracted driver solely due to the football game, the Court found that Hampton did not make such a specific assertion. Consequently, the Defendants’ argument was deemed unfounded, leading to the denial of their request to exclude this portion of Hampton’s opinion.
In Opinion 12, Hampton stated that Bobby James was following the Wescott vehicle too closely, violating the standards outlined in the Commercial Motor Vehicle Driver Manual and industry norms. According to Hampton, James did not have adequate time and distance to avoid the vehicles of Wescott and Behel. Defendants James and Reynolds opposed this conclusion, arguing that it lacked sufficient factual basis. The essence of the Defendants’ argument boiled down to the assertion that, had the Wescott trailer not jackknifed, the collision would not have occurred. They contended that this fundamental premise justified the exclusion of Hampton’s conclusion.
Contrary to the Defendants’ position, the Plaintiffs assert that the central issue in the case revolves around whether the James vehicle was following the Wescott vehicle too closely before the events that caused injury to the Plaintiffs. They argue that if James had maintained an appropriate distance from Wescott, he would have had sufficient space to either come to a stop or execute an evasive maneuver, thereby preventing the collision with the Wescott tanker. The Plaintiffs support this argument by referencing Hampton’s report, where he suggests that, instead of following the Behel vehicle at a four-second interval, James should have maintained a minimum of seven seconds or a distance of 735 feet at their speed of 72 miles per hour. According to Hampton, if James had followed the Wescott vehicle at a safe distance, he could have avoided the crash by bringing his vehicle to a complete stop within 514 feet.
The Plaintiffs, along with Hampton, appear to argue either that (1) James should have maintained a greater distance from Wescott when he was in the right lane to prevent a rear-end collision with the Wescott trailer, or (2) James should have kept a greater distance from Wescott even while in the left lane to avoid a collision with the jackknifed Wescott trailer. If the contention is the former, this argument is deemed unsuccessful because James did manage to avoid colliding with Wescott when he successfully maneuvered into the left lane. The collision occurred only after James had transitioned into the left lane, at which point Wescott’s vehicle jackknifed, leading to the subsequent collision. Therefore, it is illogical to assert that James needed more following distance to swerve into the left lane and avoid rear-ending the Wescott trailer, as he had already done so.
If, on the other hand, their argument is the latter, it similarly lacks coherence. The requirement for maintaining a sufficient distance between vehicles is relevant in the context of following. However, once James maneuvered into the left lane, he ceased to be “following” Wescott; instead, he occupied the left lane while Behel and Wescott were in the right lane. In this scenario, Plaintiffs and Hampton would be advocating for a standard where, after moving into the left lane, James still had an obligation to maintain a significant distance behind the Wescott and Behel vehicles, even though those vehicles were not in his lane. Such a framework would imply that any vehicle within a distance less than 514 feet behind Wescott or Behel in either lane would be considered in violation, including a vehicle that had never been in the right lane or one lawfully attempting to pass. These scenarios conflict with both legal driving practices and common sense. The Court cannot fault James for driving in a lane where he had every right to be. Consequently, the Court remains unconvinced by Hampton’s conclusion that James was following the Wescott and Behel vehicles too closely.
Furthermore, Hampton’s conclusion is deemed unsupported and misleading, as a reasonable listener would likely infer from it that James’ following distance was a but-for cause of his collision with the Wescott trailer. However, as previously highlighted, James did not collide with Wescott’s trailer due to his following distance; instead, the collision occurred because he was in the left lane when Wescott’s vehicle jackknifed. The Court finds particular merit in the analysis presented in the Defendants’ briefing, emphasizing that James successfully changed lanes to the left and was in no different position than if he had been driving in the left lane all along. Consequently, Hampton should not be permitted to testify that being in the right lane, as opposed to the left lane, led to James following too closely, as in either scenario, James would have been in the left lane when the Wescott trailer jackknifed and collided with his semi.
Considering the aforementioned factors, the Court determines that Hampton’s conclusion stating, “Bobby James was following the Wescott vehicle too closely…and did not have the time and distance to avoid the Wescott and Behel vehicles,” lacks fundamental support to the extent that it provides no meaningful assistance to the fact-finder. The Court concludes that the probative value of such a conclusion is “substantially outweighed by a danger of…misleading the jury,” as per Federal Rule of Evidence 403. Consequently, the Court grants the Defendants’ request to exclude this specific portion of Hampton’s testimony.
In Opinion 13, Hampton stated, “The Federal Motor Carrier Safety Administration’s (FMCSA) Guide to Improving Highway Safety illustrates the unsafe actions of Berney Wescott, and Bobby James contributed to the causation of this crash, and defined the crash as preventable.” Defendants Wescott and Heritage argued for the exclusion of this opinion based on the phrase “contributed to the causation of this crash.” James and Reynolds, on the other hand, disputed Hampton’s conclusion that the FMCSA’s Guide to Improving Highway Safety defined the crash as preventable.
Defendants Wescott and Heritage argued for the exclusion of a portion of Hampton’s testimony, asserting that it constituted an impermissible legal conclusion. They contended that expert witnesses should not decide legal questions. The Court acknowledged the general principle that expert witnesses should not offer legal conclusions but emphasized that expert testimony is admissible if it is reliable and assists the jury in understanding the evidence or deciding a fact in issue. The Court cited the standard set by the Eighth Circuit,Archer Daniels Midland Co. v. Aon Risk Servs., 356 F.3d 850, 858 (8th Cir. 2004), stating that expert testimony can only be excluded if it is “so fundamentally unsupported that it can offer no assistance to the jury.” In this case, the Court found that Hampton’s opinion was fact-based, derived from an evaluation of the case’s facts, and not a mere statement of legal conclusion. As such, the Court denied the Defendants’ request to exclude this portion of Hampton’s testimony.
Defendants James and Reynolds argued for the exclusion of a specific portion of Hampton’s testimony concerning James. They contended that Hampton failed to adequately establish a connection between his conclusion and James’ conduct, a point uncontested by the Plaintiffs in their briefing.
Hampton, in his report, referenced the FMCSA’s Guide, stating that an accident where one vehicle rear-ends another is deemed preventable if the driver failed to adhere to safe following distances, maintain control of their vehicle, monitor traffic conditions, and assess whether the vehicle ahead is slowing down. After listing these criteria, Hampton concluded that “Wescott failed to follow these safe operating procedures, which were the causation of this crash.” However, James’ name was notably absent from Hampton’s discussion on preventability. Nowhere in the report or deposition did Hampton explicitly state that James also failed to follow these safe operating procedures. The Defendants highlighted this omission, noting that Hampton did not assert that James failed to follow the specified procedures in his report, nor did he provide an explanation of how James might have failed to do so. Instead, James’ name was included in the summary of opinions without further clarification.
Furthermore, the assertion that James could have prevented the accident is deemed inaccurate, especially considering Hampton’s deposition acknowledgment that he cannot dismiss the possibility that James might not have collided with the Wescott vehicle had it not been jackknifed.
Given the lack of a valid rationale supporting the conclusion that James’ actions could have prevented the crash, the Court has decided to exclude this specific portion of Hampton’s testimony concerning James.
In Opinion 11, Hampton stated, “Berney Wescott violated several regulations and statutes from the Federal Motor Carrier Safety Regulations and the State of Missouri, which led to the causation of this crash.”
Defendants Heritage and Wescott sought the exclusion of Hampton’s Opinion 11, arguing against the use of the word “causation.” The Court rejected their argument and consequently denied their request to exclude Hampton’s Opinion Number 11.
In the process of preparing his report, Hampton utilized a computer animation of the crash created by DKG Global, Inc. Defendants Wescott and Heritage expressed concerns about the animation, stating that it illustrates the accident sequence and includes “what if” scenarios depicting alternative outcomes under different circumstances. These Defendants asserted that Hampton might seek to use this animation as a demonstrative aid during the trial. They argued for Hampton’s exclusion from using the animation at trial, citing reasons such as a perceived lack of foundation and Hampton’s non-involvement in the creation of the animation.
The concerns raised by the Defendants regarding the use of the animation may or may not be valid, but their request is deemed premature. Plaintiffs themselves acknowledged that the determination of whether to use the animation at trial has not been finalized. The Court emphasized that if, at a later stage, it becomes evident that Plaintiffs intend to introduce the animation into evidence or present it as a demonstrative aid for the trier of fact, the Defendants can renew their objection. However, as of now, the objection is considered premature, and the Court has not granted the Defendants’ motion to exclude on this ground.
Held
The Court granted the motion filed by Defendants Bobby Lynn James and Tracy Lonny Reynolds to exclude the opinions and testimony of Plaintiffs’ expert William Hampton.
In contrast, the Court denied the motion in limine submitted by Defendants Heritage Transport, LLC, and Berney P. Wescott to limit the testimony of Hampton.
The Court finally ruled in favor of Defendants Bobby Lynn James and Tracy Lonny Reynolds and against Defendants/Cross-claimants Berney P. Wescott and Heritage Transport, LLC after the Court found that the Plaintiffs and Cross-claimants failed to provide sufficient, probative evidence which would permit a fact finder to rule in their favor.
Key Takeaways
In the legal proceedings, expert testimony provided by William Hampton has been a subject of contention, particularly regarding his opinions on the behavior of the involved parties in a vehicular collision. Hampton’s Opinion Number 6, which suggested that Berney Wescott operated his vehicle as a distracted driver, was challenged by Defendants who argued for its exclusion, asserting a lack of factual foundation and reliance on speculation. However, the Court found that Hampton’s conclusion was based on a comprehensive assessment of the circumstances, refuting the Defendants’ claim of a singular focus on the football game distraction. In contrast, Hampton’s Opinion 12, implicating Bobby James for following too closely, faced successful opposition from Defendants who argued that the crash would not have occurred if the Wescott trailer had not jackknifed. The Court ruled in favor of the Defendants, excluding this portion of Hampton’s testimony due to its lack of fundamental support and potential to mislead the jury. Furthermore, Hampton’s Opinion 13, involving the FMCSA’s Guide to Improving Highway Safety, faced objections for consisting of legal conclusions, but the Court rejected the exclusion request, considering Hampton’s opinion as fact-based and not fundamentally unsupported. The Court’s decisions highlight the importance of a nuanced evaluation of expert testimony, addressing concerns of foundation, coherence, and misleading implications.
This lawsuit originated from the damage Hurricane Laura caused to First United Pentecostal Church of DeRidder (FUPC), a church in DeRidder, Louisiana, on August 27, 2020. Throughout the relevant period, the church was insured under a policy issued by Church Mutual Insurance Company (Church Mutual). Following the storm, FUPC engaged in a contract with Plaintiff Alex Howard, operating as ServiceMaster by Howard (ServiceMaster-Howard), a company based out of Alabama. The contract involved emergency cleaning, water mitigation, and restoration services. ServiceMaster-Howard subsequently filed a lawsuit against FUPC in this Court, asserting that both FUPC and Church Mutual had sanctioned the work but failed to settle the invoices. In response, FUPC filed cross-claims against Church Mutual, citing the latter’s alleged failure to promptly and adequately reimburse FUPC for losses covered under the insurance policy.
The case went through the Court’s Streamlined Settlement Process for first-party insurance claims from Hurricanes Laura and Delta, but did not resolve. It was originally set for a jury trial in April 2023, but the Court granted Church Mutual’s motion to continue the trial to allow more time for discovery. The new trial date was set for November 2023.
FUPC timely designated Keith Meranto as an expert witness, specifying him as a general contractor. The designation indicated that Meranto would testify in alignment with his report and expertise, encompassing Hurricane damage to the First United Church and Family Life Center, including reconstruction costs. The attached report featured a two-paragraph narrative and provided estimates for the rebuilding of both the church and Family Life Center.
On October 4, 2023, FUPC submitted supplemental discovery responses, which included the December 2022 contract between FUPC and Meranto Construction for the reconstruction and renovation of the church. Additionally, payment applications and invoices from December 2022 onward for the ongoing project were provided. The contract referred to a “Budgetary Schedule of Values” and an “attached schematic proposal,” outlining the scope of the church’s remodeling project. These documents, along with associated design plans, were only disclosed to Church Mutual on October 9, 2023. Meranto’s estimate for the entire project amounted to $3.7 million, whereas the estimate for hurricane repairs provided by the Plaintiff’s public adjuster was $1.5 million. On October 10, Meranto underwent deposition, during which he affirmed that he did not provide any opinions on causation. He also acknowledged that his involvement with the church extended beyond hurricane damage, and he could not distinguish between hurricane repair work and other renovations in his estimate.
Church Mutual filed a motion seeking the exclusion of all expert opinion evidence from Meranto, contending that his original report failed to establish his expertise in accordance with Rule 26(b)(2), Federal Rule of Evidence 702, and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The argument also asserted that Meranto’s opinions lacked relevance to the ongoing litigation. In response, the Plaintiff opposed the motion, asserting that Meranto was qualified to provide an estimate of repair costs and had cooperated to the best of his abilities in supplying documents to the defense counsel.
Construction Expert Witness
Keith Meranto has over 14 years of experience in construction and project management roles. He currently serves as the Owner/Construction Manager of Meranto Construction. Meranto has an extensive expertise in various areas including general contracting, project management, quantity take-offs, and design-build projects.
Discussions by the Court
Under the Federal Rules of Civil Procedure, a party is required to disclose the identity of any expert witness intended for trial, accompanied by a written report prepared and signed by the witness, as outlined in Fed. R. Civ. P. 26(a)(2)(B). This report is mandated to include a comprehensive statement of all opinions the witness would express, along with the basis and reasons for those opinions, as specified in Rule 26(a)(2)(B)(i). The rule does not restrict an expert’s testimony to merely reading the report; rather, it anticipated that the expert would supplement, elaborate upon, and explain the report in oral testimony, quoting Thompson v. Doane Pet Care Co., 470 F.3d 1201, 1203 (6th Cir. 2006). However, the Court held that a complete report is required to provide the substance of the testimony the expert intended to offer along with the reasons supporting it, citing Rule 26 Advisory Committee Note, 1983 Amendments. These requirements aimed to prevent unfair surprise. Consequently, an expert who failed to provide a report in compliance with Rule 26(a) should not have been allowed to testify unless such failure was deemed harmless, citing Fed. R. Civ. P. 37(c)(1).
The trial Court, following Daubert and Kumho Tire, acts as a gatekeeper in assessing the relevance and reliability of expert testimony. Federal Rule of Evidence 702 outlines three criteria for evaluating expert challenges: 1) expert qualifications; 2) relevance of proposed testimony; and 3) reliability of principles and methodology. The proponent bears the burden of proving admissibility. The Court has wide discretion, with rejection of expert testimony being the exception. The Court’s gatekeeping role doesn’t replace the jury but complements the traditional adversarial system. Cross-examination and presentation of contrary evidence are the primary means to address admissible but shaky expert evidence.
Church Mutual Insurance Company alleged that Meranto’s report for the first United Pentecostal Church in Deridder failed to meet the mandatory requirements outlined in Rule 26(a). The report, consisting of a mere two-paragraph narrative, was notably lacking in crucial details. It briefly mentioned Meranto Construction being summoned by Pastor Lewis to assess damage sustained by the church and gym due to a hurricane, without specifying the nature of the damage or its cause, be it from hurricanes Laura or Delta, pre-existing issues, or wear and tear. Additionally, the report did not elucidate the methodology used to ascertain the cause of the damage, the rationale behind the budgetary figures, the materials earmarked for use, or the involvement of vendors and subcontractors in supplying materials and labor. Furthermore, it omitted crucial aspects such as contracts or bids acquired from vendors/subcontractors forming the pricing foundation, the scope of renovations or upgrades planned, necessary work mandated by codes or ordinances, and the specifics of the permitting application submitted for a project of this scale.
Meranto’s testimony during the proceedings underscored his clear lack of opinion regarding the property’s extent of hurricane damage. He emphasized that his work’s scope was solely defined by the tasks requested by his client, FUPC, disregarding any considerations related to damage assessment. Notably, he explicitly stated: firstly, his absence of an opinion on the magnitude of hurricane damage; secondly, the disparity between his contracted budget and the actual cost required for hurricane repairs; thirdly, FUPC’s specific requests for upgrades and remodeling distinct from hurricane-related fixes; fourthly, his inability to provide an estimated budget exclusively dedicated to hurricane repairs; and finally, his lack of awareness regarding the allocation within his budget for ordinance and code compliance, despite acknowledging that these expenses exceeded $100,000, reaching the policy sub-limit of $100,000.
The Court observed that Meranto’s report, though brief, left no question about his qualifications as a contractor or his proficiency in cost estimation. However, both his report and testimony indicated that his estimate lacked credibility as a measure of repair costs for covered damages. Consequently, there was a significant risk that it could confuse or mislead the jury. The Plaintiff was advised to rely instead on the repair cost estimate from its public adjuster and invoices for completed work that could be directly linked to the damages.
Held
The Court granted Church Mutual’s motion in limine and barred Keith Meranto from offering any expert testimony in the case. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
Firstly, adherence to Rule 26(a) is paramount, demanding comprehensive reports from expert witnesses to prevent unexpected revelations during trial. Secondly, courts assume the role of gatekeepers, evaluating the relevance, reliability, and admissibility of expert testimony as per Federal Rule of Evidence 702, emphasizing expert qualifications, relevance, and methodological reliability. The burden of proving admissibility rests with the proponent, allowing courts wide discretion while maintaining the exceptionality of rejecting such testimony. This gatekeeping role serves to complement the adversarial system, enabling cross-examination and contrary evidence presentation to counterbalance uncertain expert evidence. Mandatory report requirements necessitate detailed opinions, methodologies, and supporting reasons, crucial in avoiding jury confusion or misinterpretation. Highlighting an expert’s limitations and scope prevents misconceptions about testimony credibility. In cases involving repair estimates, reliance on credible assessments directly linked to damages, such as those from public adjusters or invoices tied to damages, is advisable. Ultimately, ensuring clarity, relevance, and direct applicability of expert testimony to the case’s factual context helps prevent potential confusion or misleading interpretations for the jury.
This case involved a personal injury lawsuit filed by Plaintiff, Morgan Fitch against her employer, Defendant, BNSF Railway Company (BNSF), under the Federal Employers’ Liability Act (FELA). On February 28, 2020, the Plaintiff was fulfilling her duties as a conductor for the Defendant, engaged in the transportation of a train from Minot, North Dakota to Rugby, North Dakota. While in the locomotive cab with a three-person train crew, the train suddenly initiated an emergency stop without any prior warning. The abrupt force of the stop resulted in the Plaintiff being thrown forward into the locomotive’s nose, leading to injuries in her right arm and shoulder. Additionally, throughout the litigation process, the Plaintiff asserted that she had sustained neurological and cognitive injuries, including a traumatic brain injury.
Fitch filed motions to exclude the expert testimony of three defense witnesses that BNSF disclosed: Melissa Castro, a neuropsychologist; Frederick Strobl, a neurologist; and Steven Moen, an orthopedic surgeon. Fitch argued in her motions and cited the supplemental report of her own expert, Dr. Steven David Lockman, that the methodology and reasoning underlying the defense experts’ testimony was not scientifically valid.
Neuropsychology Expert Witness
Dr. Melissa Castro is a clinical neuropsychologist with expertise in areas such as concussion, traumatic brain injury, post-traumatic stress disorder, mild cognitive impairment, dementia, and cross-cultural assessments. She is board certified by the American Board of Clinical Neuropsychology and licensed to practice in Minnesota and Wisconsin. Her educational background includes a doctorate in psychology from the Ponce School of Medicine and Health Sciences and a bachelor’s degree in psychology from Concordia University. Castro currently serves as a clinical neuropsychologist at the Minneapolis Clinic of Neurology.
Neurology Expert Witness
Dr. Frederick Thomas Strobl is a medical doctor with specialized expertise in the field of neurology. His educational background includes a bachelor’s degree in electronics engineering from the University of Minnesota as well as a medical degree from the University of Minnesota Medical School. Strobl completed his residency training in neurology at the University of Minnesota Hospitals, followed by a fellowship at Mayo Clinic. He is licensed to practice medicine in Minnesota and is board certified in neurology by the American Academy of Neurology as well as in electromyography by the American Board of Electrodiagnostic Medicine. Strobl is the co-founder and former Chairman and CEO of CNS, Inc., known for creating Breathe Right Nasal Strips. He currently serves as a mentor, presenter and keynote speaker for the Med Tech Accelerator program, an alliance between Mayo Clinic and Arizona State University. Additionally, Strobl hosts the podcast Brain Health Minute, covering various neurology topics.
Orthopedic Surgery Expert Witness
Dr. Steven A. Moen earned his Bachelor of Arts in Chemistry from Saint Olaf College. He went on to earn his Doctor of Medicine from the University of Minnesota School of Medicine, followed by a General Surgery internship at the University of Minnesota. Moen completed his Orthopaedic Residency Program at the University of Minnesota and is licensed to practice in Minnesota. He is also a Board Certified Orthopedic Surgeon. He has been practicing as an Orthopedic Surgeon at Twin Cities Orthopedics in Edina, Minnesota since 1998.
Discussions by the Court
Rule 702 of the Federal Rules of Evidence outlines criteria for expert testimony admissibility. The rule requires the trial judge to serve as a “gatekeeper,” admitting expert testimony if it is both relevant and reliable. The judge has broad discretion in assessing reliability. Credibility and weight of expert testimony are left to the trier of fact. Only fundamentally unsupported expert opinions may be excluded. Parties may present scientifically valid expert opinions that assist the jury, with Daubert emphasizing a preliminary assessment of scientific validity. Courts encourage liberal admission of expert testimony, and the traditional means of challenging evidence include cross-examination and presenting contrary evidence. District Courts are cautioned against weighing competing expert opinions, leaving such decisions to the jury when opinions are within a reasonable range of expert disagreement.
BNSF engaged Castro, a clinical neuropsychologist, to conduct a Rule 35 medical examination of Fitch. Castro’s conclusions consistently expressed skepticism regarding the severity of Fitch’s brain injury, contending that its impact on her life would be minimal. These conclusions were founded on three scientifically unsound premises: (1) an assertion that Fitch was deliberately exaggerating her injuries for personal gain, based on specific test results (namely symptom validity tests (SVTs) and performance function tests (PFTs)); (2) a claim that Fitch did not meet the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) diagnostic criteria for post-traumatic stress disorder (PTSD); and (3) an argument that Fitch should have already recovered from her brain injury. The Plaintiff argues that Castro’s expert opinions were derived from information that was incorrect, inaccurate, incomplete, and incompetent. As a result, the Plaintiff asserted that Castro’s trial testimony would be unreliable and invalid under Rule 702 and should be excluded.
The Court, having thoroughly examined the parties’ submissions, determined that Castro is an experienced, qualified, and competent board-certified neuropsychologist. The record showed that Castro conducted a comprehensive examination and interview of the Plaintiff, administered relevant tests, and thoroughly reviewed the Plaintiff’s medical records before formulating her conclusions. The Court found that Castro’s methodology and reasoning were scientifically valid and applicable to the facts of the case. Consequently, the Court concluded that Castro’s expert testimony was both relevant and reliable, aligning with Rule 702 of the Federal Rules of Evidence.
BNSF enlisted Strobl, a board-certified neurologist, to conduct a Rule 35 medical examination of Fitch. Strobl’s conclusions consistently downplayed the severity of Fitch’s alleged brain injury, asserting that she suffered no injury and that the effects would have no lasting impact. The Plaintiff argued that Strobl’s conclusions were rooted in two scientifically unsound premises: (1) minimizing Fitch’s injury based on information from the Cleveland Clinic website, the injury not being recognized in the emergency department, and the absence of physical evidence of trauma at the time of the incident; and (2) interpreting specific test results ( namely Electromyography(EMG)) to ostensibly rule out a brachial plexus injury. The Plaintiff contended that Strobl’s conclusions were not merely a difference of opinion but rather stemmed from unreliable and invalid information, and therefore, advocated for the exclusion of Strobl’s testimony in the case.
The Court, having reviewed the matter, determined that Strobl was an experienced, qualified, and competent board-certified neurologist. Strobl’s opinions were based on a thorough examination of the Plaintiff and an assessment of her medical history from records. The Court concluded that the methodology and reasoning behind Strobl’s testimony were scientifically valid and applicable to the case’s facts. Consequently, the Court found Strobl’s expert testimony to be relevant, reliable, and in accordance with Rule 702 of the Federal Rules of Evidence.
BNSF engaged Moen, a board-certified orthopedic surgeon, to conduct a Rule 35 medical examination of Fitch. Moen concluded that Fitch had a soft-tissue injury to her right shoulder and did not suffer a specific brachial plexus injury. He based this conclusion on an April 2020 Electromyography (EMG) that he characterized as “essentially normal.” Moen asserted that brachial plexus injuries typically result from birth trauma or major trauma, such scenarios were inconsistent with Fitch’s emergency room examination where no swelling, bruising, or bony abnormalities were noted. The Plaintiff argued that Moen’s reasoning was logically flawed as it incorrectly assumed that the April 2020 EMG ruled out the possibility of a brachial plexus injury. Consequently, the Plaintiff asserted that Moen’s conclusions were fundamentally flawed, unreliable, and invalid, advocating for his exclusion from testifying regarding Fitch’s brachial plexus injury.
Upon examination, the Court determined that Moen was an experienced, qualified, and competent board-certified orthopedic surgeon. Moen conducted an examination of the Plaintiff and assessed her medical history from records. The Court concluded that the methodology and reasoning behind Moen’s testimony were scientifically valid and applicable to the case’s facts. As a result, the Court found Moen’s expert testimony to be relevant, reliable, and in accordance with Rule 702 of the Federal Rules of Evidence.
Therefore, the Plaintiff’s motions sought the Court’s evaluation of competing expert opinions, a matter pertaining to the weight assigned by the factfinder rather than the admissibility of such testimony. The Court emphasized the appropriate approach to challenge expert opinions through robust cross-examination and the presentation of conflicting evidence, rather than wholesale exclusion at trial, citing precedent Olson v. Ford Motor Co., 411 F. Supp. 2d 1137, 1145 (D.N.D. 2006). The Court refused to overstep the jury’s role in determining credibility and the weight to be given to the evidence.
Held
The Court denied the Plaintiff’s motions to exclude the testimony of defense medical experts, Melissa Castro, Frederick Strobl, and Steven Moen. The Court found they were qualified experts whose methodology and reasoning was scientifically valid. It would be up to the jury to determine how much weight to give their testimony. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
The expert witness testimony in this case relates to the standards for admissibility under Rule 702. The Court serves as a “gatekeeper” in assessing whether expert opinions are relevant and reliable. However, Courts give broad discretion to trial judges on determinations of reliability. Once expert testimony passes the reliability threshold, issues of credibility and weighing competing testimony fall to the trier of fact, usually the jury. Wholesale exclusion of expert opinions is meant to be the exception rather than the norm. Courts should not examine whether the expert’s conclusions are necessarily correct or which theory among competing ones has superior merit. Rather, as long as qualified experts have utilized scientifically valid reasoning that assists the trier of fact, exclusion is unwarranted even if some disagreement exists. Here, despite variances in conclusions reached, the Court found that all three defense experts proffered relevant and sufficiently reliable testimony based on examination of the Plaintiff and her records along with application of sound methodology. With liberal admission standards favoring allowing expert testimony, the Court denied motions to exclude these witnesses. The jury will now decide what weight to afford each expert opinion at trial during its deliberations. Vigorous cross-examination provides the appropriate tool for addressing shaky expert testimony rather than exclusion.
This case involves a lawsuit filed by Donald F. Greene and Nicole F. Greene (“Plaintiffs”) against Ledvance LLC (“Defendant”) regarding injuries Donald Greene sustained when a fluorescent light bulb he was changing allegedly exploded. The incident occurred on June 11, 2020 at Donald Greene’s workplace.
According to the allegations, On June 11, 2020, Donald Greene, employed as a site manager for Waste Connections, was in the process of changing a fluorescent light bulb located on a wall in the garage of his workplace when the light bulb suddenly and abruptly exploded without warning. Donald Greene sustained severe injuries, primarily to his left arm. He was taken by ambulance to the hospital where his left bicep wound was treated and closed surgically. He later underwent two additional surgeries on his left bicep performed by orthopedic surgeon Joshua P. Moss, who continued treating Donald Greene’s injuries.
Plaintiffs brought suit against Defendant, the alleged designer, manufacturer, seller and distributor of the subject fluorescent light bulb, under the Tennessee Product Liability Acts. Plaintiffs alleged that because a fluorescent light bulb does not normally “violently explode” during normal handling, Defendant was also liable under the common law doctrine of res ipsa loquitur, contending that the nature of the incident itself implies negligence.
In the course of expert disclosures, Plaintiffs identified Moss as the treating physician for Plaintiff Greene. Moss intended to testify on causation, medical necessity, and details of Greene’s treatment, along with the impact of the injury on Greene’s physical abilities. His opinions emphasized that on June 11, 2020, Greene suffered a serious injury to his left arm when a fluorescent light bulb exploded during a change, causing immediate tissue disruption and bleeding in the left biceps area. Moss, drawing on his experience as an orthopedic surgeon for military personnel, asserted that the traumatic laceration of tissue in Greene’s left arm resulted from a force comparable to that experienced by military personnel injured by explosive ordnance of fragmentation devices. This distinction was crucial, indicating a highly violent force, as opposed to the type of injury that would typically result from a simple fall onto the bulb.
The Defendant sought to exclude specific testimony from Moss, specifically objecting to any opinions related to the fluorescent lamp at issue and the manner in which broken glass from the lamp might have caused Greene’s injury. The motion specifically aimed at precluding Moss from asserting that Greene’s injury resulted from an explosion or, based on his military experience, that the traumatic laceration was due to a highly violent force comparable to injuries sustained by soldiers exposed to explosive ordnance or fragmentation devices.
On May 26, 2023, the Plaintiffs revealed Thomas Kelly as their expert in the case. Kelly, a licensed electrical engineer employed by the Warrant Group, Inc. since 2017, specialized in consulting on property damage and injuries related to electrical equipment.
As part of his investigation, Kelly conducted three key activities: (1) examined the clothing worn by Plaintiff Greene on the day of the incident, (2) scrutinized lamps retrieved from adjacent fixtures at the facility, and (3) conducted a meeting with Plaintiff Greene to inspect, document, and photograph the light fixture and facility in question. In addition to these on-site activities, Kelly also reviewed various documents, including Plaintiff Greene’s deposition transcript, the emergency medical services and police reports from June 11, 2020, an invoice from Lloyd’s Electrical Service dated December 31, 2013, Safety Data Sheets for Sylvania fluorescent light bulbs, and photographs taken at the scene of the incident.
In his analysis, 1) The lamp’s power was cut off via the circuit breaker panel before the lamp-changing process, disconnecting the energy source for the fixture. The incident was not a result of an electrical failure in the building’s electrical system.
2) The light fixture in question contained a single electronic ballast, with no battery backup or stored energy. Power to the fixture had been deactivated by opening the related circuit breaker before the process began. Plaintiff Greene showed no observable burn marks on his hands, indicating no contact with an energized source. The light fixture was returned to service after replacing the lamps post-incident, and the issue was not caused by an electrical failure in the fixture.
3) Fluorescent lamps are constructed with thin glass tubing, coated with phosphorus on the inside. Glass end caps, tungsten filaments, and mercury vapor are components added during the assembly process, with stress accumulating during these steps. A defect in any component, influenced by these stresses, can act as a trigger. Kelly’s analysis concludes that the failure of the lamp resulted from a defect in the fluorescent lamp assembly, to a reasonable degree of engineering certainty.
On May 26, 2023, the same day Plaintiffs revealed Kelly as their expert, Defendant initiated a motion for summary judgment. In support of this motion, Defendant submitted declarations from its experts: David W. Powell, a mechanical engineer, and Erick H. Knox, Ph.D., P.E., a biomedical engineer. Additionally, Defendant filed a declaration from its corporate representative, Danielle Sohl. In response, Plaintiffs submitted Kelly’s Declaration:
It clarifies discrepancies in Plaintiff Greene’s initial description of the lamp removal process. He reaffirms his opinions on the lamp failure despite the correction in the direction of movement. Kelly discusses the ladder’s specifications, noting that the fly section’s load-bearing capacity is contingent on the entire assembly supporting the rated weight. He addresses marks on the walls, attributing them to various tools and parts rather than the ladder. Refuting Defendant’s hypothesis on the ladder’s position during the incident, Kelly highlights inconsistencies with the broken cover plate and plastic piece. He mentions challenges in evaluating debris due to safety concerns during the pandemic, emphasizing Greene’s account and post-incident photographs as primary evidence. Kelly references NFPA 921, asserting that while the lay term “explosion” was used, the circumstances don’t align with the standard’s definition. He applied NFPA 921 guidelines considering witness statements and photographic evidence. Regarding the SDS for the lamp, Kelly contends that the lack of warnings left Greene unaware of the hazard’s severity, leading to Defendant’s failure in providing adequate warnings.
Defendant filed two motions seeking to exclude certain expert testimony from Plaintiffs’ expert Thomas Kelly, an electrical engineer, as well as a motion to strike Kelly’s subsequent declaration.
Electrical Engineering Expert Witness
Thomas J. Kelly has substantial educational background including a Bachelor of Science in Electrical Engineering and a Master of Science in Electrical Engineering from Florida Atlantic University. He further completed Master of Business Administration from Winthrop University. He investigates the cause and scope of damage for fire, explosion, and property loss incidents. He is certified as a Fire and Explosion Investigator. He is employed with The Warren Group, Inc., as a senior consulting engineer
Orthopedic Surgery Expert Witness
Dr. Joshua P. Moss has an educational background consisting of a Bachelor of Science from the University of Notre Dame and a Doctor of Medicine from Vanderbilt University School of Medicine. His residency was in Orthopaedic Surgery at the University of North Carolina, Chapel Hill School of Medicine. He then completed a fellowship in Mary S. Stern Hand Surgery at the University of Cincinnati. Moss is board certified by the American Board of Orthopaedic Surgery . His specialties include orthopedics and hand surgery. He began his practice at University Orthopaedic Surgeons in 2016.
Discussions by the Court
The Defendant put forth several grounds in support of its motion to exclude specific aspects of Moss’s testimony. Firstly, the Defendant contended that Moss lacked sufficient knowledge concerning fluorescent light bulbs, emphasizing his absence of experiments to determine whether Greene’s injury could have resulted from impaling an arm on the broken end of a fluorescent lamp. Additionally, the Defendant asserted that Moss lacked experience in designing or manufacturing fluorescent light bulbs. Citing Moss’s deposition testimony, the Defendant argued that he conceded the existence of a viable alternative cause for Plaintiff Greene’s injury. Ultimately, the Defendant sought the Court’s intervention to exclude these opinions from Moss as unreliable.
Plaintiffs responded by asserting that Moss’s anticipated testimony was well within the scope of his expertise. They emphasized his background as an orthopedic surgeon for military personnel and his direct involvement in treating Plaintiff Greene. Plaintiffs argued that Moss’s opinions, rooted in his relevant experience, were reliable. While acknowledging that Moss is not an expert on light bulbs, Plaintiffs contended that the Defendant failed to provide a valid basis for excluding his opinions. They further asserted that the Defendant misrepresented Moss’s deposition testimony and contended that the challenges to his opinions were more appropriately addressed through cross-examination during the legal proceedings.
The Defendant, in its reply, maintained that Moss should not be permitted to present causation opinions during the trial. The Defendant argued that Moss had not personally conducted any testing to determine if Plaintiff Greene’s injuries could have resulted from an allegedly exploding fluorescent lamp. The Defendant emphasized that Moss had not undertaken any investigation into the accident beyond examining Plaintiff Greene’s wounds. Additionally, the Defendant highlighted Moss’s lack of experience in the manufacturing of fluorescent light bulbs. Based on these points, the Defendant asserted that excluding Moss’s causation opinion was justified.
During the hearing, the Defendant clarified its stance, indicating that it did not contest Moss’s opinions regarding the similarity of Plaintiff Greene’s injury to battlefield injuries or the assertion that the injuries resulted from glass. The Defendant also expressed lesser concern about Moss’s testimony characterizing the injuries as consistent with a “highly violative force.” However, the Defendant argued that Moss should be prevented from asserting that Plaintiff Greene’s injury specifically resulted from an exploding or imploding light bulb. In response, the Plaintiffs contended that the challenges raised by the Defendant pertained more to the weight of Moss’s opinions rather than their admissibility.
Citing relevant cases such as In re Aredia & Zometa Prods. Liab. Litig., 754 F. Supp. 2d 934, 937 (M.D. Tenn. 2010), there is a fundamental distinction between a treating physician’s ability to diagnose a medical condition based on clinical experience and their capacity to offer an opinion on the causation of the patient’s injuries. The case emphasizes that while a treating physician can provide a diagnosis, their opinions on the source or causation of the diagnosed condition may be restricted. It underscores the principle that a treating physician, without an expert report, is not allowed to go beyond information acquired during the treatment to offer opinions on the causation of injuries.
Plaintiffs argued that Moss had experience treating individuals with injuries related to glass. However, Moss admitted that, apart from installing them in his garage, he lacked familiarity with fluorescent light bulbs and did not consider himself an expert on them. Federal Rule of Evidence 702 was referenced to underscore the requirement that expert testimony should be based on an accepted body of learning or experience in the expert’s field. Moreover, Moss, aside from relying on Plaintiff Greene’s account, had not conducted an independent investigation into the accident to verify that the light bulb had indeed exploded.
Additionally, Moss acknowledged an inability to rule out alternative causes for Plaintiff’s injuries. Citing the case, Wilson v. Taser Int’l, Inc., 303 F. App’x 708 (11th Cir. 2008), where a treating physician’s testimony attributing an injury to a taser gun was deemed unreliable, the Court concluded that Moss was not permitted to provide opinions concerning the fluorescent lamp in question or how broken glass from that lamp may have caused injury to the Plaintiff.
During the Daubert hearing on November 16, 2023, Kelly provided testimony about his professional background, detailing his fifteen years in facilities management with formal training on equipment such as ladders and fire extinguishers. In his current role, he specializes in fire, shock, and electrical investigations. Kelly asserted that the incident resulted from the fluorescent light bulb imploding and expelling glass material. He clarified the distinction between “implosion” and “explosion” based on NFPA definitions, highlighting that an implosion, as observed in this case, may be colloquially perceived as an explosion. To reach his conclusions, Kelly examined the building’s use, assessed the electrical circuit and wiring, disassembled the light fixture, and met with Plaintiff Greene to understand his perspective. Confirming the functionality of the fixture and finding no defects, Kelly ruled out electrical failure. He utilized his knowledge and experience to hypothesize, evaluate potential causes, and ultimately concluded that a manufacturing defect in the light bulb caused the incident.
During the testimony, Kelly affirmed his familiarity with the light bulb in question, citing his experience using and purchasing it during his tenure as a facilities manager. He also acquired knowledge of the bulb’s manufacturing process from a documentary. Kelly supported his opinion that the incident was not caused by improper handling by referencing Plaintiff Greene’s demonstration and noting the absence of trauma to Greene’s hands.
Kelly clarified that his opinions in the Declaration were responsive to the declarations of Defendant’s experts supporting the summary judgment motion. Regarding paragraph 6 of his Declaration, Kelly explained his interpretation of ladder weight limits based on his experience and training. The opinions in paragraph 8 stemmed from his review of photographs and professional experience, where he observed no scuff marks on the floor, indicating the ladder did not slide down the wall.
In his Declaration, Kelly mentioned concerns about bloodborne pathogens and pandemic-related cleanup. During testimony, he emphasized his knowledge of injuries involving bleeding, his multiple bloodborne pathogens training sessions, and his participation in a medical emergency response team with a previous employer.
During the Daubert hearing, Kelly testified to his extensive experience in facilities management, emphasizing his training in ladders, fire safety, and electrical investigations. He explained his conclusion that the incident resulted from the fluorescent light bulb imploding and ejecting glass, clarifying the technical definition of “explosion” and detailing his examination of the building’s usage, electrical circuit, and the light fixture’s components.
Kelly affirmed his familiarity with the specific light bulb through prior usage and purchases, as well as viewing a documentary on its manufacturing process. He defended his opinions in response to Defendant’s expert declarations, providing context for his interpretations. On cross-examination, Kelly acknowledged his lack of expertise as a ladder specialist or accident reconstructionist but defended his hypothesis about the light bulb’s spontaneous failure due to a manufacturing defect.
Kelly admitted to not having investigated the manufacturing process, quality control, or conducting specific tests on exemplar bulbs. He highlighted his reliance on Plaintiff Greene’s account and dismissed alternative causes, emphasizing his inability to test the actual subject light bulb. The defense questioned his analysis of marks on the wall and ladder placement, challenging the adequacy of his investigation. Kelly defended his lack of testing, citing unavailability of the subject light bulb and reliance on Plaintiff Greene’s account.
In re-direct examination, Kelly maintained that something caused the light bulb to implode, stressing factors like temperature changes. He admitted to the absence of testing records due to the closure of the manufacturing plant. Kelly clarified that his failure-to-warn opinion was a facilities manager’s perspective, not an engineering standpoint, responding to Powell’s description of implosion in his testimony.
Defendant seeks to exclude Kelly’s testimony, contending it lacks relevance and is based on insufficient facts or unreliable methodology under Rule 702 and Daubert. Defendant moves to strike Kelly’s opinions expressed in his Declaration, claiming they are untimely under the Scheduling Order and inadmissible. Plaintiffs argue that Kelly is qualified, and his opinions are based on thorough review, utilizing a valid process of elimination. Plaintiffs assert that Sohl’s deposition undermines Powell’s theory. Defendant’s reply insists on Kelly’s failure to identify a product defect, lack of proper testing, and presents new opinions beyond his expertise. The debate also touches on the timeliness of Kelly’s Declaration and the potential for a supplemental deposition.
The Court emphasized the flexibility of the Daubert test, acknowledging various factors in assessing reliability. The burden of proving admissibility lies with the party offering the expert. In this case, the Court determined that Kelly’s opinion on the cause of the incident lacked reliability, leading to its inadmissibility. The Court also questioned Kelly’s qualifications regarding warnings and considered his opinion on the cleanup process as speculative.
The Court, in assessing Kelly’s qualification to opine on Plaintiff Greene’s handling of the light bulb, found the opinion lacked reliability due to insufficient facts and data. Kelly’s reliance on Plaintiff Greene’s reenactment, without proper testing or verification of key aspects, raised concerns about the accuracy of the conclusion. The Court highlighted discrepancies in the reenactment, such as the ladder type used, rung spacing, and the attempt to change the bulb using the ladder’s top fly section. Additionally, Kelly’s speculative opinions on wall marks, scuff marks, electrical conduct, and debris investigation were deemed unreliable and unsupported. The Court referenced the analytical gap between data and opinion, emphasizing the need for a valid scientific basis.
The Court contested Kelly’s qualifications to assert a manufacturing defect in the light bulb assembly, challenging his expertise as a licensed professional engineer and facilities manager. Despite his background, the Court found Kelly lacked the necessary qualifications to testify on a manufacturing defect in a fluorescent light bulb. His limited familiarity, derived from watching a video, and the absence of experience in designing or manufacturing such bulbs were deemed insufficient. Moreover, the Court critiqued Kelly’s methodology, citing the Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000) case and emphasizing the failure to conduct reliable laboratory testing to validate his hypotheses. Kelly’s reliance on Plaintiff’s statements without proper testing and failure to verify key aspects rendered his opinion on manufacturing defects inadmissible.
The Court contested Kelly’s qualifications to opine on warnings, as Plaintiffs failed to establish his expertise in the field relevant to warnings. While Plaintiffs argued Kelly’s experience as a facilities manager and familiarity with Occupational Safety and Health Administration (“OSHA”) standards rendered him capable, the Court found this insufficient, emphasizing the absence of qualifications in the adequacy of warnings based on Kelly’s curriculum vitae. Therefore, the Court deemed Kelly unqualified to offer an opinion on warnings. Additionally, the Court addressed Kelly’s opinion about the cleanup process, finding it speculative and inadmissible due to the lack of factual foundation for his statement about the disposal of debris.
Rule 26(a)(2) of the Federal Rules of Civil Procedure governs expert disclosures, requiring parties to disclose witnesses and provide a written report for retained experts. The Scheduling Order sets deadlines for expert disclosures and permits rebuttal opinions within 30 days after the other party’s disclosure. Rule 26(a)(2)(D)(ii) defines rebuttal evidence as intended to contradict or rebut evidence on the same subject matter. Plaintiffs, in this case, disclosed expert opinions within the specified deadlines, and Defendant contested certain opinions in Kelly’s Declaration as untimely. Defendant challenged four opinions in Kelly’s Declaration: “(1) certain black marks on the wall are as likely to be from other sources from the ladder [Plaintiff] Greene was using, (2) a plastic piece on the floor does not match the missing portion of an electrical outlet cover, (3) certain NFPA guidelines do not apply to this case, and (4) [Defendant] failed to warn that if broken, a fluorescent lamp can implode, dispersing glass fragments.” The Court ruled against striking most opinions but found one regarding failure to warn untimely, excluding it under Rule 37.
Defendant contends that Kelly is introducing new information in his analysis, which could have been considered earlier. Plaintiffs argue that Kelly’s opinions are valid rebuttals to Knox, responding to inconsistencies in Plaintiff Greene’s account of certain black marks on the wall and a plastic piece on the floor highlighted by Knox. The Court deems Kelly’s opinions on these matters as appropriate rebuttal testimony and rejects the motion to strike them.
Defendant claims that Kelly’s statement in his declaration about the lamp failure not fitting the NFPA 921 standard is an attempt to alter his previous deposition testimony. Plaintiffs argue that their response to Defendant’s summary judgment motion required Kelly to review and address new information provided by the Defendant. The Court determines that Kelly’s statement is not an effort to change his deposition testimony, and as a result, declines to strike it.
The Court determines that regardless of whether Kelly’s opinion introduces a new theory of liability, it is not a proper rebuttal opinion. Defendant’s experts did not provide opinions on warnings, as acknowledged by Kelly during the Daubert hearing. Since failure to warn is alleged in the Amended Complaint and Kelly disclosed in his initial disclosure that the light bulb exploded, the Court concludes that Plaintiffs should have initially disclosed an opinion from an expert with the requisite qualifications regarding warnings. As they disclosed Kelly’s new opinions that he is not qualified to render, the Court finds that these opinions are not genuine rebuttal evidence and may be excluded.
The Court cites Rule 37(c)(1) of the Federal Rules of Civil Procedure, stating that if a party fails to provide required information or identify a witness as per Rule 26(a), they cannot use that information or witness unless the failure was substantially justified or harmless. The burden to show substantial justification or harmlessness lies with the potentially sanctioned party. The Court references the Sixth Circuit’s five factors for assessing whether a party’s omitted or late disclosure is “substantially justified” or “harmless,” including the surprise to the opposing party, the ability to cure the surprise, the extent of trial disruption, the importance of the evidence, and the nondisclosing party’s explanation for the failure to disclose the evidence. The Court refers to Howe v. City of Akron, 801 F.3d 718, 747-48 (6th Cir. 2015) for these factors.
The Court concludes that a majority of the factors favor the exclusion of Kelly’s opinions. Despite the Plaintiffs’ assertion that the Defendant cannot be surprised because Kelly’s original report allowed for supplementation with additional opinions, the Court emphasizes that such allowance does not permit the introduction of entirely new opinions in violation of the Scheduling Order. It notes that the Defendant lacks the ability to cure the surprise, even with the Plaintiffs’ offer to provide Kelly for a second deposition, as the Defendant would need to potentially retain its own warnings expert and prepare a rebuttal report. The Court underscores that there will be no trial disruption, but the discovery deadline has already expired. The Court also deems the importance of the evidence as favoring exclusion, pointing out that Kelly is not qualified under Rule 702 and Daubert to render the opinion on warnings. Finally, in terms of explanation, the Court rejects the Plaintiffs’ argument that Kelly’s opinion is a rebuttal, determining that it is not, and notes that the Plaintiffs were aware of the Defendant’s intention to submit evidence related to glass tube dispersion. The Court concludes that the Howe factors lean towards excluding Kelly’s opinions on warnings.
Held
The Court ultimately granted Defendant’s motion to exclude the testimony of Thomas J. Kelly in its entirety. The Court also granted in part and denied in part Defendant’s motion to strike the declaration of Thomas J. Kelly. The Court granted the Defendant’s motion to exclude specific testimony from Plaintiff’s expert witness, Joshua Moss.
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 involved an injury allegedly caused by an exploding fluorescent light bulb. The Plaintiff disclosed his treating orthopedic surgeon, Joshua Moss, as an expert witness to testify about the cause of the injury, the details of treatment provided, the impact on the Plaintiff’s abilities, and the reasonableness of medical expenses. However, the Court granted the Defendant’s motion to exclude certain aspects of Moss’s proposed testimony.
Specifically, the Court found that while Moss could testify to his diagnosis and treatment of the Plaintiff’s injuries, he lacked sufficient knowledge and investigation to reliably opine on the cause of the injuries being an exploding light bulb. Moss admitted he was not an expert on fluorescent bulbs, did not investigate the accident scene, and could not rule out alternative causes. Thus, the key takeaways are that treating physicians can testify to diagnosis/treatment but cannot reliably testify to causation without proper expertise in the injury mechanism at issue and investigation excluding alternative causes. Lacking such foundation, the Court will exclude unreliable causation opinions even from an otherwise qualified expert.
The Court also excluded all opinions from Plaintiffs’ proffered electrical engineering expert Thomas Kelly after finding him generally unqualified and his methodology unreliable. Specifically, Kelly lacked specific qualifications and expertise to opine on alleged manufacturing defects in fluorescent light bulbs or the adequacy of product warnings. His opinions were also not grounded in sufficient facts, data, or testing to validate his hypotheses. He failed to properly test or investigate alternative theories. This reliability gap proved fatal to the admissibility of his causation opinions.
The case shows that practical experience alone may not qualify someone to provide expert opinions if that experience does not directly correlate to the specific issues in the case. It also demonstrates that while an expert can rely on a hypothesis and process of elimination, testing and factual data are still required to establish opinions as reliable and admissible. Failing to follow reliable principles and methods consistent with the facts renders expert testimony unreliable and subject to exclusion no matter the expert’s qualifications. Parties must vet experts thoroughly regarding qualifications and methodology before disclosure.
This case involved a dispute between Plaintiffs Toa Trading LLC and MunshiBari LLC and Defendants Mullen Automotive, Inc. and Mullen Technologies, Inc. over an alleged breach of contract. The Plaintiffs claimed that the Defendants failed to pay them a finder’s fee as required by an agreement between the parties. The Defendants argued that they were not required to pay the fee because the Plaintiffs had acted as unlicensed broker/dealers in violation of Securities and Exchange Commission (SEC) regulations, rendering the contract null and void. To support their argument, the Defendants intended to offer expert testimony from Lauren Cohen. They disclosed Cohen as a “hybrid non reporting expert witness” who would testify about SEC regulations, specifically Section 3(a)(4) and Section 15(a) related to the brokers and whether the Plaintiffs acted as unlicensed broker/dealers.
On April 7, 2023, the Judge issued a scheduling order outlining key deadlines for the legal proceedings. The order mandated that by June 23, 2023, the involved parties were required to disclose their experts, along with summaries and reports related to expert witnesses. Subsequently, on August 4, 2023, a deadline was set for the exchange of rebuttal expert witness summaries and reports. All discovery, including expert discovery, was slated to conclude by August 25, 2023. Finally, a trial date of February 12, 2024, was entered.
On June 23, 2023, the Defendants initially disclosed Cohen as a “retained expert” in accordance with Federal Rules of Civil Procedure 26(a)(2)(B) and 26(a)(2)(C). In this disclosure, Cohen’s anticipated expert testimony was outlined, focusing on findings, observations, opinions, and discussions related to Securities and Exchange Commission regulations and the legality of the contracts in question, along with any associated fair market value. The Defendants affirmed that the attached exhibit, including Cohen’s CV, publication list, relevant testimony, and credentials, adhered to the requirements of Rule 26(a)(2)(B). Notably, the June 23 disclosure did not include a report prepared by Cohen.
On June 27, 2023, the Plaintiffs communicated via email to the Defendants, expressing their belief that the initial disclosures made by the Defendants were deemed “procedurally and substantively insufficient” and urged for a discussion to address these concerns before considering the filing of a motion to strike.
On July 10, 2023, the Defendants made amendments to their expert witness disclosures, referred to as “Amended Disclosures.” Notably, these revised disclosures still did not include an expert report prepared by Cohen. Instead, Cohen was re-categorized as a “hybrid” witness, blending both factual and expert roles under Fed. R. Civ. P. 26(a)(2)(C). The previous concise summary of Cohen’s expected testimony was omitted, and a new description was provided. In this updated information, Cohen was said to be expected to provide both factual testimony and opinion, permitted by FRCP 26(a)(2)(C) as a hybrid witness, specifically regarding Securities and Exchange Commission regulations. The focus areas included Section 3(a)(4) and Section 15(a), addressing conduct that the SEC may deem indicative of individuals acting as brokers. The testimony would also cover agreements involving transaction-based compensation and specific conduct relevant to determining whether TOA TRADING’s and MUNSHIBARI’s principals and agents acted as unlicensed broker/dealers in connection with the reverse triangular merger outlined in the Complaint.
Days later, during the July 12 conferral, the Plaintiffs once again contested the adequacy of the Defendants’ Amended Disclosures. Their arguments centered around several key points: (1) the Defendants’ failure to provide an expert report, as mandated by FRCP 26(a)(2)(B); (2) the absence of evidence supporting Cohen’s classification as a ‘hybrid’ fact and expert witness, as required by FRCP 26(a)(2)(C); (3) even if FRCP 26(a)(2)(C) applied, deficiencies in the Amended Disclosures for not specifying Cohen’s opinions and their bases; and (4) concerns that the Amended Disclosures hinted at improper expert testimony on the applicability of SEC regulations, deeming it unnecessary for an expert to educate the Court on these legal matters. Notably, the Defendants’ Amended Disclosures did not reveal any involvement by Cohen in the facts of the case that would appropriately categorize him as a fact witness, nor did they disclose any statement regarding Cohen’s compensation as a witness.
In response to the Defendants’ refusal to withdraw Cohen’s testimony, the Plaintiffs took action and, on July 26, 2023, filed a motion to strike the proposed testimony.
Business Administration and Management Expert Witness
Lauren H. Cohen is the L.E. Simmons Professor in the Finance & Entrepreneurial Management Units at Harvard Business School and a Research Associate at the National Bureau of Economic Research. Cohen teaches in the MBA Program, Executive Education Program, Doctoral Program, and Special Custom Programs at the Harvard Business School, teaching across Family Enterprise, Investment Management, and Innovation Course Offerings. He is an award-winning researcher, and best-selling case writer, with works published in the top journals in Finance and Economics. His work is frequently profiled in various media outlets including The Wall Street Journal, The New York Times, The Washington Post, The Economist, and Forbes. Cohen frequently advises government organizations in the U.S. and abroad, including the United States Securities and Exchange Commission and United States Patent & Trademark Office.
Discussions by the Court
The exclusion of Cohen’s testimony in this case was warranted for three main reasons. Firstly, the Defendants neglected to submit the expert report mandated by Fed. R. Civ. P. 26(a)(2)(B) within the specified deadline. Secondly, the Defendants’ non-compliance with Fed. R. Civ. P. 26(a)(2) was found to lack substantial justification and was not deemed harmless to the Plaintiffs. Lastly, it was argued that Cohen’s proposed testimony ran afoul of Eleventh Circuit law and was considered improper.
The Defendants were unable to substantiate that Cohen played any role other than that of a retained expert in this case. The available evidence in the record did not indicate any first hand involvement by Cohen in the relevant facts or transactions under consideration. Specifically, during the October 31 hearing on the case, the Defendants acknowledged that Cohen had no prior knowledge of the case before being engaged as a paid expert by the Defendants’ counsel to offer testimony in this matter.
In accordance with Rule 26(a)(2)(B), when a witness is retained or specifically employed to provide expert testimony in a case, the disclosure must be accompanied by a written report. This report, which must be “prepared and signed by the expert witness,” and is required to include the following:
(i) A comprehensive statement outlining all opinions the witness will express and the basis and reasons supporting those opinions.
(ii) Details regarding the facts or data considered by the witness in forming their opinions.
(iii) Any exhibits that will be used to summarize or support the opinions.
(iv) The witness’s qualifications, including a list of all publications authored within the preceding 10 years.
(v) A list of all other cases in which the witness testified as an expert, either at trial or through deposition, within the preceding 4 years.
(vi) A statement indicating the compensation to be paid for the study and testimony in the case.
In the case of Cedant v. United States, 75 F.4th 1314, 1321 (11th Cir. 2023), as of 2023, the Eleventh Circuit clarified that the classification of an expert witness as “retained” or “non-retained” depends on the nature of the relationship between the expert and the party for whom the expert is intended to testify, rather than the actual content of the expert’s testimony. This interpretation, outlined in Cedant, emphasizes the importance of examining the initial reason and timing of the expert’s retention by a party, specifically assessing whether the retention was for the purpose of providing expert testimony in the case or for some other objective. The Court instructed that a textual reading of Rule 26(a)(2)(B) indicates that an expert’s status as a retained witness hinges on the original purpose of their retention (For instance, in the context of medical expert testimony, the determination of whether a doctor is retained or not depends on whether they were hired to testify or to provide treatment).
Following the plain language of Rule 26(a)(2) and the guidance from the Cedant decision, it was determined that Cohen was unequivocally a retained expert. Throughout the litigation, his sole association with the case was as a paid witness hired by the defense counsel to provide expert testimony. This conclusion aligns with the Court’s assertion in Cedant that an expert is considered retained “if his connection to the litigation was, from the beginning, as a paid expert witness.” Cohen lacked any “first-hand factual awareness of the subject matter of the suit,” as per Cedant, and the Defendants did not dispute this fact. Rather, Cohen’s involvement with the Defendants commenced specifically when he was retained to testify in the litigation, with no other purpose or connection to the case beyond potentially offering expert testimony after the fact.
As Cohen was correctly identified as a “retained” expert witness, the Defendants were obligated, in accordance with Fed. R. Civ. P. 26(a)(2)(B) and Judge’s scheduling order, to furnish the Plaintiffs with a comprehensive expert report for him by the specified deadline of June 23, 2023. However, the Defendants failed to fulfill this requirement. Despite being alerted to this issue by the Plaintiffs, and despite the passage of several months, the Defendants did not take corrective measures to address their failure and provide the Plaintiffs with the necessary expert report and information.
Cohen’s testimony and opinions were rightfully excluded in this case due to the Defendants’ failure to furnish the necessary expert report by the deadline specified in the scheduling order. The Defendants did not demonstrate that this failure was substantially justified or harmless, leading to the appropriate exclusion of Cohen’s testimony and opinions from consideration in the case.
Violations of Rule 26(a)(2)(B)’s disclosure requirements necessitate the exclusion of undisclosed information or witnesses unless the violation is justified or deemed harmless, citing Fed. R. Civ. P. 37(c)(1). This is something held by the Court, that substantial justification, in this context, requires a level of justification that could reasonably convince a person that parties may differ on whether compliance with the disclosure request was necessary. The proponent’s position must have a reasonable basis in law and fact, quotingChapple v. Alabama, 174 F.R.D. 698, 701 (M.D. Ala. 1997). Assessing whether there was substantial justification or harmlessness in failing to disclose involves considering four factors: (1) the significance of the excluded testimony; (2) the party’s explanation for the failure to comply with the disclosure requirement; (3) the potential prejudice resulting from allowing the testimony; and (4) the availability of a continuance to provide remedy for such prejudice, as outlined in Chappell.
In addressing the substantial justification factors outlined in Chappell, the Defendants were unsuccessful in demonstrating the significance of Cohen’s proposed testimony. The Defendants asserted that the testimony’s sole purpose was to educate the jury about relevant securities laws. However, this proposed testimony was considered improper and inadmissible because it appeared to go beyond presenting factual information and delved into expressing Cohen’s opinion on the ultimate legal conclusion of whether the Defendants qualified as brokers under applicable securities laws and regulations. Citing, Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990), which stipulates that a witness is not permitted to testify about the legal implications of conduct, as the Court must be the sole source of law for the jury. Despite the Defendants’ assertion that Cohen’s testimony would refrain from providing ultimate legal conclusions and would solely instruct the jury about applicable securities law, such proposed testimony was deemed inadequate. This alone justified the exclusion of Cohen’s testimony. Furthermore, even if we overlook the inappropriateness of the proposed expert testimony concerning domestic securities law, any attempt by the Defendants to present Cohen’s testimony to educate the jury about pertinent securities laws was deemed unnecessary. This is because the Judge would provide instructions to the jury at the trial regarding the relevant law.
The Defendants failed to provide a satisfactory explanation for their failure to disclose expert testimony appropriately. Despite the Plaintiffs’ objections and the clear language of Rule 26(a)(2), the Defendants consistently asserted, contrary to the rules, that they were not obligated to produce an expert report under Rule 26(a)(2)(B) for Cohen. Refusing to acknowledge the plain language of Rule 26(a)(2) and the inapplicability of Rule 26(a)(2)(C) to an expert with no connection to the case except for compensated retention for trial testimony, the Defendants chose not to rectify their expert disclosure violations by submitting an expert report or requesting an extension of the deadlines set by the Judge. Instead, they opted to risk violating the Judge’s scheduling order, the Federal Rules of Civil Procedure, and Local Rule 16.1(b)(6), persisting in their unjustified interpretation of Rule 26(a)(2) even after the Plaintiffs filed their motion to strike. Even at the hearing on the Plaintiffs’ motion, the Defendants still lacked a report for Cohen, and they could not articulate Cohen’s opinions on the pertinent securities laws, beyond stating that he would testify about them.
Due to the Defendants’ inadequacies in disclosing information about Cohen, admitting his testimony at trial would have severely prejudiced the Plaintiffs. Apart from the previously discussed improprieties in Cohen’s proposed testimony, there was a significant risk that his testimony could confuse or mislead the jury by serving as a competing source of law, potentially conflicting with the Judge’s instructions and creating confusion about the applicable law. The absence of an expert report that adequately presented Cohen’s opinions and their basis prevented the Plaintiffs and the Court from mitigating these prejudicial possibilities. Furthermore, the lack of a requisite report detailing Cohen’s opinions and their basis denied the Plaintiffs the opportunity to identify and retain a possible rebuttal expert, as they had no information about the opinions Cohen might express that would necessitate a rebuttal. The actual opinions held by Cohen regarding the relevant securities laws remained unknown. Moreover, the Plaintiffs were deprived of a realistic chance to depose Cohen within the discovery period due to insufficient and denied information, impeding the ability to conduct a meaningful deposition. Consequently, the Plaintiffs were also denied the capacity to prepare for and conduct a meaningful cross-examination of Cohen at trial if he were allowed to testify.
Finally, the Defendants failed to demonstrate how a continuance could rectify the prejudice faced by the Plaintiffs. Addressing the prejudice resulting from the Defendants’ expert disclosure violations would necessitate more than a mere continuance in this case. If the Defendants were to eventually produce the required expert report for Cohen, the Plaintiffs would then need time to locate and retain a rebuttal expert, and expert discovery in the case would need to be reopened to address the competing opinions of the experts. Moreover, a continuance would not remedy the fact that Cohen’s proposed testimony was improper and inadmissible. In these circumstances, a continuance would not alleviate the prejudice caused by the Defendants’ violations of their expert disclosure obligation; instead, it would result in undue delay, exacerbating the prejudice to the Plaintiffs. The Defendants were well aware of the issues surrounding Cohen’s proposed testimony and had ample opportunities to provide a timely expert report and take steps to remedy their disclosure violations in a manner that would minimize the prejudice to the Plaintiffs. However, the Defendants persistently defended their unwarranted Rule 26(a)(2) arguments and refused to take corrective actions to address their noncompliance with the required expert disclosure requirements or mitigate the resulting prejudice.
Held
The Plaintiffs’ Motion to Strike was granted, and the Defendants’ expert witness, Lauren Cohen, was precluded from testifying at trial.
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 properly disclosing expert witnesses under Rule 26(a)(2) and providing expert reports by Court-ordered deadlines. The Defendants failed to classify their expert, Cohen, appropriately or provide the required report. As a retained expert hired to provide testimony, Cohen was subject to Rule 26(a)(2)(B), not the less stringent “hybrid witness” disclosures under Rule 26(a)(2)(C). By missing the deadline to submit Cohen’s report, the Defendants violated the Court’s scheduling order.
The magistrate judge excluded Cohen’s testimony as a sanction for these disclosure violations under Rule 37(c). Key factors were the Defendants’ lack of justification for noncompliance and the resulting prejudice to the Plaintiffs. Without a proper report, the Plaintiffs could not prepare to cross-examine Cohen or retain rebuttal witnesses.
Courts have broad discretion to exclude expert testimony for failure to satisfy disclosure requirements. Here, exclusion was appropriate despite the importance of Cohen’s testimony to the defense. This case demonstrates Courts may impose exclusion even when it impacts a core defense, if discovery violations are unjustified and incurable. Attorneys should ensure meticulous compliance with Rule 26 procedures to avoid exclusion of retained experts.
This case involves a vehicle accident that occurred on August 24, 2018 in Thomasville, Georgia. Plaintiff Grady Bryan was performing maintenance on a traffic light while positioned in a suspended lift bucket attached to a Georgia Department of Transportation (DOT) utility boom truck. Defendant David Swisher, a tractor trailer driver working for Defendant Greenwood Motor Lines, struck the DOT truck, causing Plaintiff Bryan to fall approximately 25 feet from the lift bucket to the ground.
The complaint was initially filed by the Plaintiffs in the State Court of Thomas County, Georgia, on December 1, 2020, naming American Lighting, David Swisher, and Greenwood as Defendants. Grady Bryan, one of the Plaintiffs, alleged negligence against all Defendants, asserting that he suffered severe physical and mental injuries from a fall, significantly impacting his ability to work and care for himself. Grady Bryan sought damages exceeding $10.8 million, encompassing medical expenses, lost past and future wages, lost earnings capacity, and past and future pain and suffering. Additionally, Kristi Bryan, another Plaintiff, sought an unspecified award for compensatory damages, citing a loss of consortium resulting from her husband’s injuries.
The Defendants removed the case to federal Court in December of 2020.
Subsequently, Defendants Swisher and Greenwood filed the Motion to Exclude Expert Testimony of Plaintiffs’ accident reconstruction expert, Sean Alexander.on June 1, 2023. The Plaintiffs then filed their Response to Defendants’ Motion. Following that, Defendants filed their Reply.
Accident Reconstruction Expert Witness
Sean M. Alexander has extensive professional experience investigating and reconstructing traffic accidents. He possesses 25 years of experience investigating accidents and 24 years of experience in a special Traffic Division of the Houston County Sheriff’s office. He also has been a consultant in accident reconstruction since 2000. He has completed numerous courses on accident reconstruction in the State of Georgia, and has actively participated in over 1,000 Accident Reconstructions. He has extensive experience both as a student and as a teacher and trainer in the accident reconstruction field, and is accredited by the Accreditation Commission for Traffic Accident Reconstruction. He is currently the President of C.A.R. Crash Analysis & Reconstruction LLC, in which he investigates and reconstructs motor vehicle crashes.
Discussions by the Court
Federal Rule of Evidence 702 governs the admission of expert testimony, requiring the court to perform a “gatekeeping” function. The court must assess the expert’s qualifications, the reliability of their methodology, and the helpfulness of their testimony to the trier of fact. The three-part inquiry involves evaluating the expert’s qualifications, the reliability of their methodology, and the assistance their testimony provides to the trier of fact. While qualifications may include scientific training or experience, it does not guarantee reliability. The court must ensure that the methodology is scientifically valid and can be applied to the facts in question. The exclusion of expert testimony is the exception rather than the rule, and minor flaws may not render it inadmissible. The court reviews these determinations for abuse of discretion, allowing considerable leeway to the district courts.
The Defendants requested the Court to exclude the testimony of Sean Alexander, an accident reconstructionist retained by the Plaintiff. The Defendants argued that Alexander, a non-engineer with over 17 years of experience in a Georgia county sheriff’s department, was contacted by the Plaintiffs about a month after the accident and did not personally conduct inspections or measurements. Instead, two other non-engineers from his office, former law enforcement officers, were sent to inspect the accident scene on his behalf.
The parties did not dispute Sean Alexander’s qualification as an accident reconstructionist. A review of Alexander’s deposition and report affirmed his competence to testify on the relevant matters related to accident reconstruction.
The Defendants argued that Sean Alexander was not qualified to provide testimony on human factors, asserting that he lacked the expertise of a human factors expert. Consequently, according to the Defendants, Alexander could not opine on whether Defendant Swisher had the capability to determine the Georgia Department of Transportation (GDOT) vehicle’s positional location in proximity to the lights for at least 1,000 feet away. They further contended that Alexander was not qualified to testify on whether Defendant Swisher faced “no vertical obstructions for a thousand feet that would have obstructed his view” or express opinions regarding Defendant Swisher’s ability to “see and perceive at night”. Additionally, the Defendants argued that Alexander’s assessment of photographs taken during the daytime with a non-full frame camera was flawed, citing their expert Allen Powers‘ explanation of the potentially misleading nature of zoomed-in photographs.
Upon a thorough review of Sean Alexander’s deposition and his report, the Court determined that neither the report nor deposition extensively focused on human factors to warrant the exclusion of Alexander’s testimony. The primary purpose of Alexander’s report was to reconstruct the accident and illustrate the vehicle positions at the time of impact for the jury’s understanding of the accident site. Importantly, Alexander clarified that he was “to some extent” qualified to offer opinions on human factors but emphasized that he was not providing opinions or calculations on human factors. Instead, his opinion was to demonstrate that clear targets were visible from a distance of a thousand feet, leaving it to Defendant Swisher to convey what he saw before the collision to the jury. Alexander explicitly stated that he would not determine whether Defendant Swisher should or should not have seen targets or stimuli but asserted that his opinion, based on evidence, was that there were “no vertical obstructions” from a thousand feet where Defendant Swisher was. Furthermore, Alexander mentioned referencing studies on reaction time and perception time during report preparation but clarified that he did not provide opinions on when or whether Defendant Swisher “should have recognized the flashing lights” at the time of the accident
Regarding depth perception, Alexander testified that the pictures were taken at 100-foot increments starting at a thousand feet and at 50 millimeters, representing the eye focal length of a person’s vision, not necessarily Defendant Swisher’s. The purpose of the pictures was to show reference-wise depth perception and what was available, not specifically what Defendant Swisher would or should have seen. Alexander clarified that the non-full-frame camera pictures were not intended to provide an exact representation of Defendant Swisher’s perspective but rather to demonstrate the absence of physical obstructions blocking his vision.
After a comprehensive review of Sean Alexander’s report and deposition, the Court determined that the primary purpose of Alexander’s opinion was to illustrate the alignment and positions of the vehicles at impact, as well as the distance and time required for the Peterbilt to avoid colliding with the bucket at the time of the accident. Alexander explicitly stated that he did not provide opinions on human factors or whether Defendant Swisher should have recognized the utility vehicle. Alexander emphasized that it was Defendant Swisher’s responsibility to testify about his visual perception during the approach to the collision and whether he noticed or recognized the utility vehicle. The Court acknowledged the limits of Alexander’s methodology, his explicit delineation of opinions, and his reliance on available evidence to reach findings. The Court found Alexander qualified as an expert in accident reconstruction, noting that any discussion of human factors was marginal and within the bounds of his expertise. For example, Alexander referred to reaction time only in a general sense, relevant to accident reconstruction, demonstrating to the jury that, based on the evidence, there were no physical obstructions in the area at the time of the accident.
Defendants argued that Alexander made an unfounded assumption that Plaintiff Bryan placed the bucket in front of the traffic signal, despite Plaintiff testifying that he positioned it behind or at the back of the signal. In response, Plaintiffs asserted that a review of Plaintiff’s deposition revealed his numerous memory issues regarding the events surrounding his injury. The Plaintiffs argued that Alexander’s report about the bucket’s location remained consistent with the Defendants’ expert opinion regarding the Plaintiff’s distance from the traffic signal.
Regarding the assumption dispute, Alexander’s deposition showed that he testified that the bucket could be either “in front or behind the light,” emphasizing that the tractor-trailer’s position would remain the same. The Court concluded that Alexander did not take a stance on whether the bucket was in front or behind the light, as he stated that it did not alter the tractor-trailer’s position.
Regarding the Defendants’ claim that Alexander only reviewed the police report and Defendant Swisher’s deposition, the Court noted that Alexander’s report listed a comprehensive set of items and references he reviewed to prepare his expert report. Even if, hypothetically, Alexander did not review every deposition or document, the Court observed that his conclusions or opinions would be limited in nature, possibly suggesting that his opinions should carry less weight rather than being inherently unreliable. The Court referenced Daubert and Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333 stating that vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are appropriate means of addressing evidentiary concerns. The Court found that Alexander’s opinion or methodology, based on the available evidence, was not deemed unreliable.
Defendants argued that Alexander’s opinion or report would confuse the jury, citing alleged inaccuracies in the location of impact and the use of daytime photographs with a non-full frame camera. In response, Plaintiffs characterized Defendants’ claims as a “generalized, specious announcement” lacking specific explanations.
After reviewing Alexander’s report and deposition, the Court concluded that Alexander’s opinions and findings were beneficial to the jury, particularly in providing a demonstration and insight into the accident site. The Court found that Alexander’s accident reconstruction could aid the jury in understanding the events and assessing the validity of Plaintiffs’ claims.
Held
The Court denied Defendants’ Motion to Exclude Expert Testimony of Plaintiffs’ expert Sean Alexander as the Court could not find any valid grounds for excluding Alexander’s expert testimony. 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 several important principles regarding the admissibility of expert witness testimony. First, the Court serves a critical gatekeeping role in assessing expert qualifications, reliability of methodology, and helpfulness to the jury. However, the exclusion of expert testimony is meant to be the exception rather than the rule.
Second, minor flaws in an expert’s reasoning or methodology typically do not warrant exclusion. Instead, issues with the weight of an expert’s opinions are better addressed through cross-examination and presentation of contrary evidence at trial.
Third, expert testimony that touches on issues outside the witness’s core area of expertise is not necessarily inadmissible. Here, even though the accident reconstructionist briefly referenced human factors issues, he made clear he was not offering definitive opinions on the driver’s perceptions. His core testimony reconstructing the accident itself was deemed admissible.
Finally, assumptions made by experts do not necessarily undermine admissibility if they do not affect the overall reliability and methodology. Here, the expert’s assumption about the bucket’s location did not change his analysis of the vehicles’ positions at impact. Allowing the testimony and testing assumptions on cross-examination was appropriate.
This case involved a lawsuit filed by Louis Edward Hill against Century Arms, Inc. and Century International Arms, Inc. (collectively “Defendants”) relating to a pistol that allegedly unintentionally discharged when it fell out of its holster, resulting in injury to Hill’s knee.
On November 28, 2017, the Plaintiff purchased a Canik TP9SF Elite model pistol. Subsequently, on February 25, 2019, the Plaintiff sustained injuries when the pistol, housed in a holster, fell, struck the ground, and discharged unintentionally. The Plaintiff asserts that a safety defect rendered the pistol unreasonably dangerous. The Amended Complaint contends that the Defendants, involved in the design, manufacturing, import, marketing, distribution, and sale of the pistol, are responsible. The Plaintiff points to a September 1, 2017, “Product Safety Warning and Severe Duty Upgrade Notice” issued by the Defendants, which was not a recall but a voluntary upgrade. This notice applied to the Plaintiff’s pistol and acknowledged that dropping pistols could damage safety features, leading to unintentional discharge. The Plaintiff alleges negligence, strict liability for manufacturing and design defects, negligence, and strict liability for failure to warn. The complaint also includes allegations related to vicarious liability.
The Plaintiff suffered a knee injury in the accident and sought medical treatment from Dr. Konstantinos Triantafillou, M.D., a board-certified orthopedic surgeon. Following a deposition on September 8, 2022, Triantafillou testified that the likelihood of the Plaintiff requiring a total knee replacement in the future was “more likely than not.” He explained that the significant damage to the joint, characterized by a sizable hole, made it challenging to anticipate anything other than the development of painful arthritis in the future.
The Plaintiff enlisted the services of Robert P. Tremp, a life care expert, to assess future care needs, rehabilitation planning, and the impact of conditions on independent living and vocational development. In Tremp’s First Report finalized on September 26, 2022 (“Tremp’s First Report”) , he estimated the Plaintiff’s future medical expenses at $76,861.50, covering MRIs, X-rays, physical therapy, orthopedic appointments, and a total knee replacement. Notably, Tremp qualified that this list of future medical care was contingent on physician recommendations, except for the total knee replacement, which was based on Triantafillou’s deposition testimony. Tremp arrived at his opinions after reviewing the Plaintiff’s medical records and Triantafillou’s deposition.
On October 25, 2022, Robert P. Tremp asked Triantafillou to fill out a questionnaire on the Plaintiff’s future medical needs. In a report by November 3, 2022, Triantafillou suggested lifelong annual medical visits, no immediate treatments, but potential surgical intervention for post-traumatic arthritis, with joint replacement as a future consideration.
On November 17, 2022, a similar questionnaire was completed, omitting uncertain treatments. Triantafillou noted medical visits as needed for pain, potential surgery for arthritis pending evaluation, and probable but unspecified therapies. They recommended periodic diagnostics, injections, assistive devices, and aids based on symptom aggravation.
On February 9, 2023, the Plaintiff’s expert disclosure deadline expired, and Defendants claim that the Plaintiff disclosed Tremp along with three other experts as witnesses. On September 15, 2023, Defendants deposed Tremp, and during the deposition, the Plaintiff produced Tremp’s expert file, which included a one-page telemedicine Independent Medical Examination (IME) report prepared by William Tontz on March 11, 2023. Tontz recommended annual orthopedic visits for ongoing knee pain, along with annual MRI and CT scans for monitoring. Viscosupplementation was advised biannually. It was reasonably certain that the patient would eventually need a total knee arthroplasty and hardware removal due to persistent pain and post-traumatic arthritis.
In response to questions about any inconsistency between the recommendations of Triantafillou and Tontz, Tremp stated that “Triantafillou didn’t have much feedback in terms of recommendations based on the input he gave.” Defendants assert that, in addition to disclosing the IME with Tontz, Tremp also disclosed his Second Life Care Plan (“Tremp’s Second Report”) on the day of his deposition. Dated July 26, 2023, Tremp’s Second Report, based on Tontz’s recommendations, indicated that the Plaintiff will need orthopedic surgery appointments, viscosupplementation injections for the knee, total knee replacement with hardware removal, MRI of the left knee, and a CT scan of the knee. Tremp explained that he withdrew the September 27, 2022 plan because the 2023 plan replaced it due to new information from the IME with Tontz.
Defendants filed two motions seeking to exclude the evidence relating to Tontz. First, they sought to exclude Tontz as an undisclosed expert witness in violation of Rule 26(a)(2) and exclude his opinions as a sanction pursuant to Rule 37. Second, they sought to exclude Tremp’s testimony relying on Tontz’s opinions.
Life Care Planning Expert Witness
Robert P. Tremp, Jr., M.A., C.R.C., C.L.C.P., holds a Master of Arts degree in Special Education and Rehabilitation, which he earned from the University of Arizona in 2004. Prior to this graduate program, Tremp completed a Bachelor of Arts in Interdisciplinary Studies and Social Science, Human Resources and Society at Michigan State University in 2002. Additionally, in 2004 he finished an internship with the Rehabilitation Services Administration of the Arizona Department of Economic Security. He has obtained professional certifications demonstrating specialization and expertise, including as a Certified Rehabilitation Counselor, Certified Life Care Planner, and Provisional Mental Health Counselor. Presently, Tremp serves as a consultant with the firm Deutsch, Tremp & Tremp, LLC, which has office locations in Arizona, Florida, Michigan and New York.
Orthopaedic Surgery Expert Witness
Dr. William Tontz, Jr., M.D., earned his medical degree from the University of Southern California School of Medicine. Prior to medical school, he obtained an undergraduate Biology degree from the University of California, Irvine. He is board certified by the American Board of Orthopedic Surgery, with specialized training in conditions of the spine. Tontz’s clinical expertise includes spine trauma and reconstruction procedures, minimally invasive cervical and lumbar surgeries, non-operative spine care, and decompression surgeries. He practices as an orthopedic spine surgeon with Coastal Medical Group and Sarasota Orthopedic Institute.
Discussions by the Court
Defendants are seeking to exclude the opinion of Tontz because Plaintiff did not disclose him as an expert witness by the February 9, 2023 deadline. Plaintiff contends that disclosure was unnecessary as he did not plan to call Tontz at trial. Plaintiff also argues that Rule 35 doesn’t mandate a Court order for a party to consult a physician and that Defendants were required to request Tontz’s Independent Medical Examination (IME), which they failed to do.
The Court disagrees with Plaintiff, citing Rule 26(b)(3)(D), which shields consulting experts from discovery unless exceptional circumstances are shown. However, Tontz goes beyond a consulting expert as Rule 26(b)(4) distinguishes between testifying and non-testifying experts. Although Plaintiff asserts he won’t call Tontz at trial, he presents Tontz’s opinions through Tremp. While Plaintiff wasn’t required to seek a Court order for the consultation, the rules necessitate timely disclosure of Tontz’s opinions if intended for trial reliance.
Plaintiff refers to Rule 35, arguing it requires the party seeking an IME to request reports of all earlier or later examinations of the same condition. Since Defendants obtained an IME with Dr. Koenig, Plaintiff contends they were obligated to request the subsequent IME by Tontz, which they failed to do.
The Advisory Committee note on Fed. R. Civ. P. 35(b)(3) clarifies that reports of examining physicians are discoverable under various rules, not solely under Rule 35(b). Plaintiff’s attempt to use Rule 35 as a means to utilize Tontz’s untimely disclosure is deemed impermissible by the Court. Defendants argue that they previously requested this information during discovery, and Plaintiff failed to supplement his responses as required under Rule 26(e).
Given the Court’s finding that Plaintiff was obligated to disclose Tontz by February 9, 2023, and failed to do so, Rule 37 comes into play. Rule 37(c) mandates exclusion unless the harm is substantially justified or harmless. Plaintiff did not argue that the failure to disclose Tontz was harmless or substantially justified, which alone justifies granting Defendants’ motion. The Court considered the circumstances and applied the five factors identified by the Sixth Circuit to assess the party’s failure to disclose, citing the case Howe v. City of Akron, 801 F.3d 718, 747-48 (6th Cir. 2015): (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the non disclosing party’s explanation for its failure to disclose the evidence.
Regarding the first Howe factor, which considers Defendants’ surprise, the Court favors excluding Tontz’s opinions. Plaintiff acknowledged the error in including Tontz as an expert to be deposed but confirmed he would not be called as a witness. Plaintiff’s late disclosure, seven months after the expert deadline, added to Defendants’ surprise.
As for the second factor, Defendants’ ability to cure the surprise, it favors exclusion. With the late disclosure in September 2023 and the trial set for January 2024, Defendants lacked sufficient time for discovery from Tontz.
The third factor, disruption to the trial date, supports exclusion. Plaintiff’s significant delay in disclosing Tontz, seven months after the deadline, would impact the trial set for January 2024.
The fourth factor, the importance of the evidence, slightly weighs against exclusion. While Defendants argue Tontz’s report lacks foundation, Tremp relies on it to form an opinion on Plaintiff’s future medical needs.
The fifth factor, the reason for the late disclosure, supports exclusion. Plaintiff’s failure to explain the delayed disclosure and the argument that he wasn’t required to disclose Tontz are deemed insufficient.
Considering these factors, the Court concludes that Tontz’s opinions should be excluded.
Defendants seek to exclude evidence relying on Tontz’s opinions, including Tremp’s Second Report. Plaintiff argues Rule 703 allows experts to base opinions on inadmissible facts if experts in the field would reasonably rely on them. However, the Court deems this argument irrelevant, emphasizing that the issue is not about an expert relying on others’ work but whether commissioning an undisclosed expert after the expert disclosure deadline is acceptable. The Court notes that obtaining an opinion from an undisclosed expert based on existing evidence post-deadline is considered untimely. Since Tontz’s opinions are inadmissible, Tremp lacks a valid foundation for his opinions in the Second Report.
Plaintiff argues that, even without Tontz’s report, there is enough support from Triantafillou’s deposition for the life care plan’s findings on the need for future surgery and monitoring. Triantafillou, according to Plaintiff, acknowledged the likelihood of post-traumatic arthritis but differed from Tontz in his “hands-off” monitoring approach. Defendants counter that Triantafillou did not suggest knee replacement surgery, and they question the necessity of ongoing monitoring, emphasizing Triantafillou’s stance that it does not significantly impact treatment. Despite the exclusion of Tontz’s opinions, Plaintiff contends there is evidence, such as X-rays and potential knee replacement, supporting the need for limited future monitoring.
Triantafillou acknowledged the potential need for radiographic images and nonsurgical options before considering knee replacement. While he couldn’t assert certainty, he expressed a likelihood of Plaintiff developing arthritis and, more likely than not, needing a knee replacement. Defendants argue that Triantafillou later disavowed certainty, but the Court notes his consistent indication of a greater than 50% probability of future surgical intervention. The Court deems testimony relying on Triantafillou’s opinions for the life care plan admissible, leaving the weight for the jury’s consideration.
Held
The Court has granted Defendants’ Motion to Preclude the Records and Opinions of Plaintiff’s Undisclosed Expert, William L. Tontz, as well as any testimony and opinions relying on those records and opinions. Additionally, the Court has granted in part and denied in part Defendants’ Motion to Exclude the Testimony of Plaintiff’s Expert, Robert P. Tremp, and the supporting memorandum of law. 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 disclosing expert witnesses by the Court-ordered deadline. Here, the Plaintiff retained Tontz to provide an expert opinion on future medical treatment but failed to disclose Tontz by the February 2023 deadline. The late disclosure in September 2023 was prejudicial to the Defendants, who faced surprise expert opinions without time to obtain responsive testimony before the January 2024 trial.
The Court excluded Tontz as an undisclosed expert witness, finding the late disclosure was neither substantially justified nor harmless. This automatic sanction under Rule 37 highlights the need to timely disclose retained experts. An expert report cannot be snuck in as a “consulting” expert exempt from disclosure if that expert’s opinions will be presented at trial.
Additionally, unrelated expert witnesses cannot bolster their opinions by relying on an excluded expert’s inadmissible opinions. Here, once Tontz’s opinions were excluded, the Court precluded the Plaintiff’s life care planning expert from offering a supplemental report based solely on Tontz’s excluded findings.
In sum, parties must timely disclose all retained experts expected to provide opinions at trial, and no party can utilize an excluded expert’s opinions to support another testifying expert. Carefully following expert disclosure requirements remains critical to avoiding preclusion of evidence and testimony.
