This case involves a contract dispute between the Douglas and Amy Mottram and Robert Radke. Prior to 2018, the Mottrams entered into four joint ventures with Radke, in which Radke would buy land in California, on which the Mottrams would construct homes to be resold for mutual profit. Beginning in 2018, the Mottrams and Radke decided to pursue a similar strategy in Kauai, purchasing two plots of land (“Lot C” and “Lot D”) using funds from both parties. The parties did not enter into a written contract for this Kauai joint venture, and, perhaps predictably, its exact nature and terms are in dispute.
What is clear is that by 2023, the business relationship between the Mottrams and Radke had disintegrated due to, inter alia, conflict over the division of profits from Lot D, personal usage of the Kauai properties, and the Mottrams’ alleged siphoning of funds for a separate project with a third-party. On March 17, 2026, the Mottrams filed the instant motion, asserting that the Court should disqualify Radke’s proffered expert witness, Ross R. Murakami, on the grounds that his expert opinions failed to meet the standards of Federal Rule of Evidence 702.
Accounting Expert Witness
Ross R. Murakami has extensive experience in the real estate, construction, government, insurance, distribution, and retail industries, with over thirty-five years of experience providing audit, accounting, and consulting services to organizations based in Hawai‘i and the Pacific Basin and on the West Coast.
The Mottrams argued that Murakami’s expert report relied in part on information provided during settlement negotiations in violation of Rule 408.
The Mottrams argued that the portions of Murakami’s report that rely upon the spreadsheet, namely Tables 7, 8, and 14 of Section III, should be excluded under Rule 408.
Rule 408 is clear in stating that “a statement made during compromise negotiations” cannot be used to “prove or disprove the validity or amount of a disputed claim.” Rule 408 is clear in stating that “a statement made during compromise negotiations” cannot be used to “prove or disprove the validity or amount of a disputed claim.” The spreadsheet, prepared and provided as it was for the purposes of settlement, and used by Murakami to support his damages opinions, is unambiguously protected by Rule 408.
During oral argument, Radke’s counsel proposed that Murakami be permitted to amend the portions of his report that rely on the spreadsheet. The Court declines to open that window. Put simply, a party is not entitled to correct a problem of their own making, particularly one so glaring as a violation of Rule 408.
II. Insufficient Facts
The Mottrams next argued that Murakami’s opinions should be excluded because he relied upon inaccurate interpretations of the record. The Mottrams claimed that those opinions failed to account for contradictory facts in the record and instead relied on mere assumptions provided by Radke’s counsel; therefore, they are not based on sufficient facts and data.
The Court takes no position as to whether the Mottrams are correct in arguing that there is evidence contradicting Murakami’s opinions, precisely because doing so at this time is unnecessary and contrary to the Court’s assigned role.
III. Reliability
The Mottrams argued that Murakami was unable to identify or utilize any reliable accounting standards or authorities supporting his methods.
Radke, on the other hand, argued that Murakami abided by professional standards in his analysis and that, beyond this, the field of forensic accounting does not have a single, uniform methodology to which he should have adhered.
To begin, the Court agreed with Radke that Murakami’s expert opinions are not rooted in scientific evidence, given that forensic accounting is a specialized field in which factors like error rates or peer review are not accepted indicators of reliability.
Accordingly, the focus of the reliability inquiry “depends heavily on the knowledge and expertise of the expert, rather than the methodology or theory behind it.”
The Court is not convinced, however, by the Mottrams’ arguments. The Mottrams go too far in asserting that Murakami’s deposition testimony is proof of a lacking methodology. Murakami testified that there was not a single “professional standard” for calculating certain figures in his analysis, but-as Radke argued-that is merely a result of forensic accounting not having universal, scientific standards in the same way as other fields of expertise.
Finally, the Mottrams also asserted that Murakami did not apply his methodology reliably because “Radke’s counsel instructed Murakami to assume that Radke’s share of the profits should be based on his share of capital contributions,” which the Mottrams argue was a flawed understanding of the case. Again, however, whether to exclude an expert does not depend on the “correctness of the expert’s conclusions,” and Murakami’s reliance on an assumption provided by counsel did not offer a basis to find he applied his methodology unreliably.
The Court found that Murakami’s expert opinions have demonstrated sufficient reliability, and the Mottrams’ motion to disqualify on those grounds is denied.
Held
The Court granted in part and denied in part the Mottrams’ motion to disqualify expert witness, Ross Murakami.
Key Takeaway
While Rule 703 permits experts some leeway in basing their opinions on inadmissible evidence, courts have determined that it cannot be used to admit evidence excluded by Rule 408.
This civil action arises from a motor vehicle accident involving Plaintiff Sarah Kollman on February 20, 2019. The other driver, Taylor Bonello, was at-fault for the collision, which Plaintiff alleged caused her physical injuries.
At the time of the collision, Bonello was insured for liability with Progressive Insurance company for $100,000.000. Plaintiff had an underinsured motorist (UIM) policy with Defendant State Farm Mutual Automobile Insurance Company. After receiving permission from Defendant, Plaintiff settled with Bonello for the $100,000.000 policy limit. Plaintiff then demanded the full UIM limits of $100,000.000 from Defendant under her policy. Defendant refused to pay, saying that all of Plaintiff’s damages were covered by the money she received from Progressive. In response, Plaintiff brought the instant lawsuit for breach of contract and breach of implied duty of good faith and fair dealing.
Plaintiff sought to limit the opinions and testimony of two of Defendant’s proposed expert witnesses, Dr. Haley Burke and Keith Olivera while Defendant sought to limit the testimony of Plaintiff’s proposed expert Jeremy A. Sitcoff.
Neurology Expert Witness
Haley A. Burke is board-certified in neurology, psychiatry and interventional pain management. Burke has first-hand experience and training working with breast cancer patients who had similar surgeries from when she studied at Anderson Cancer Center in Houston, Texas.
Keith R. Olivera is an attorney duly licensed to practice law in Colorado who has practiced in excess of 30 years in various fields of insurance, including good faith/bad faith law. He is an expert in the fields of civil litigation and insurance industry standards.
Jeremy Andrew Sitcoff has been licensed to practice law in Colorado for over twenty-seven years. For more than twenty-two years approximately 85% of my practice has been devoted to insurance coverage, claims handling practices and procedures, and insurance breach of contract and bad faith on behalf of policyholders.
Plaintiff argued that Burke, who is certified in neurology, psychiatry, and pain management, is not qualified to make opinions regarding the Traffic Accident Report or Plaintiff’s lumpectomies and breast reconstructive surgery, Lyme disease, sinus and eye surgery, mental health, dental health, shoulder pain, and gastrointestinal issues.
1. Burke’s qualifications
Burke did not render an opinion regarding the Traffic Accident Report; she merely reiterated how the State of Colorado defines an “01” severity for an injury. The Court cannot identify where in Burke’s report Plaintiff claimed that she stated an opinion on the Traffic Accident Report. In addition, Burke’s discussion of PTSD is included as part of a summary of another provider’s neurocognitive testing of Plaintiff. As none of these comments involve Burke’s own opinions or “scientific, technical, or other specialized knowledge,” they are not properly challenged under Rules 702 and 403.
Next, the fact that Burke did not cite any articles or provide a more detailed basis for her opinion that Plaintiff’s sinus and cataract surgery, mold exposure, fall, gluten intolerance, and Lyme disease potentially contributed to her symptoms did not necessarily make these opinions unreliable.
The Court found that Burke is qualified to opine on the possible effects of Plaintiff’s lumpectomies, breast reconstructive surgery, shoulder pain, and mental health. The Court also found that Burke is qualified to know that these “are major surgeries and would be expected to contribute to stress and pain for many people.”
Finally, Burke is also qualified and permitted to comment on the tests and practices employed by other providers who treated Plaintiff. As long as a subject is within an expert’s area of expertise, as is the case here, he or she may conclude whether he or she agrees with another’s data and opinions. Burke’s comments are not attacks on the other providers’ credibility but rather their substantive practices.
2. Burke’s Rebuttal Report
In contrast to Burke’s initial report, the rebuttal report is largely an attack on the credibility of Plaintiff’s experts. She specifically called into doubt the qualifications of Plaintiff’s experts and the believability of their testimony.
Therefore, the Court appropriately excluded portions of Burke’s rebuttal commenting on the qualifications of Plaintiff’s expert witnesses.
Other parts of the rebuttal report, such as the section discussing the records from Parker Vision Specialists, are appropriately limited to contradicting Plaintiff’s expert’s opinions and do not put forward new arguments or theories. Therefore, these portions of the report are admissible.
B. Keith Olivera
Plaintiff argued that several opinions of Defendant’s insurance expert, Olivera, should be excluded because he impermissibly drew legal conclusions, cited unreliable industry standards, and included irrelevant information.
1. Legal conclusions
Plaintiff cited 21 opinions that it argued are legal conclusions regarding the reasonableness of Defendant’s actions and complicity with industry standards.
The Court agreed that throughout Olivera’s report, he impermissibly conflated Colorado insurance industry standards with case law to draw conclusions about the reasonableness of Defendant’s actions.
Defendant stipulates to striking opinions 10, 11, 15, and 19. In addition, opinion 14 is not an application of either industry or legal standards to the facts of the case. While it is Olivera’s opinion that Burke’s testimony supported Defendant’s position, opinion 14 is not a conclusion regarding whether Defendant’s evaluation of or reliance on Burke’s report was in line with industry or legal standards. Therefore, the Court found Plaintiff’s argument is not applicable to opinion 14 and will not strike it.
Out of the remainder of the 21 opinions cited by Plaintiff in this section of their motion, opinions 4, 5, 6, 9, 12, 13, 16 are permissible testimony regarding Defendant’s conformity with industry standards, not legal standards. On the other hand, opinions 2, 8, 17, 18, 20 are impermissible conclusions regarding the reasonableness of Defendant’s conduct, which is a matter of law. The Court also excluded opinions 1, 3, 7, and part of 21 because they are conclusions resulting from application of case law and statutory law to the facts of the case.
2. Support for industry standards
Plaintiff challenged 7 of Olivera’s opinions as based on industry standards that are not codified and have not been shown to be generally accepted. The Court disagreed, finding that at the beginning of his report, Olivera adequately stated a basis for the industry standards he cited.
In his report, Olivera “identifies what he perceives as the relevant insurance industry standards, explains those standards, and states that he relied on his experience in the insurance industry in forming his opinions as to whether State Farm met those standards.”
He clearly tied each of his opinions to an identified industry standard and stated the basis for that standard, citing Colorado case law, statutes, and his 40 years of experience in the insurance industry. Therefore, the Court found that the seven challenged opinions are not unsupported ipse dixit statements but are instead based on clearly articulated sources.
3. Ties to factual observations
Plaintiff argued that Olivera’s report failed to connect the case law and standards cited in pages 6-7 of his report to the facts of this case.
As discussed above, Olivera may not directly opine on whether Defendant’s conduct was unlawful under the case law and statutes cited. However, courts in this district have noted that case law and statutes inform insurance industry standards, and experts are permitted to testify whether a Defendant’s conduct “conformed with specific industry standards, including ones identified in Colorado statutes.”
Therefore, Olivera cannot tie the case law and statutes in pages 6-7 of his report directly to the facts of the case. However, as Olivera used the law and statutes to provide a basis for the industry standards he applied throughout his opinion, his discussion of them is admissible.
4. Methodology and supporting facts
Plaintiff argued that Olivera failed to provide any methodology or supporting facts for two of his opinions. However, Plaintiff’s argument reads not as a challenge to Olivera’s methodology but rather as a rehash of her argument that Olivera did not provide a basis for the industry standards cited. The Court has already discussed that Olivera provided sufficient bases for the industry standards he applied. To the extent Plaintiff disagreed with Olivera’s conclusion that it was consistent with industry standards for Defendant to consider Burke’s IME report, she may address her disagreement through cross-examination at trial.
5. Rebuttal Opinion
Plaintiff objected to Olivera’s rebuttal statement that he disagreed with Sitcoff’s “discussion of the case law, statutes, and regulations that provide Colorado insurance industry standards” to the extent it is inconsistent with his own.
Plaintiff argued that it is unclear what Olivera specifically opposes. Olivera’s general statement of disagreement is supported by the lengthy discussion of case law, statutes, and regulations included in his initial report and to which he refers to as the basis for his disagreement in the rebuttal. He did not seek to introduce new facts or information to support his disagreement. Therefore, the Court found that Plaintiff is adequately on notice for the basis upon which Olivera disagreed with any of Sitcoff’s contrasting opinions.
C. Jeremy Sitcoff
Defendant argued that eight of Sitcoff’s opinions are not supported by any referenced industry standard and that he impermissibly drew legal conclusions from applying the law to the facts of the case.
The Court excluded Opinions 2, 5, 6, and 7 as impermissible legal conclusions because they commented on the reasonableness of Defendant’s investigation, which was a legal determination reserved for the jury. In contrast, the Court held that Opinions 3, 4, and 8 drew conclusions based on industry standards rather than legal standards and were therefore admissible.
Held
The Court granted in part and denied in part Plaintiff’s motion to limit the testimony of Defendant’s retained expert Haley Burke.
The Court granted in part and denied in part Plaintiff’s motion to limit the testimony of Defendant’s insurance industry expert Keith Olivera.
The Court granted in part and denied in part Defendant’s motion to exclude the opinions of Jeremy Sitcoff.
Key Takeaway
Physicians frequently rely on medical knowledge, physical examination, and patient history to form opinions, all of which are “routinely admitted in federal courts because this methodology is widely accepted among the relevant scientific community.”
Case Details:
Case Caption:
Kollmann V. State Farm Mutual Automobile Insurance Company
Plaintiff Nilesh Shah accepted a position as Vice President of International Sales & Service in 2019 and was assigned to live and work in Singapore for Defendants.
His employment terms were set forth in a letter of employment signed March 8, 2019, and later amended by a promotional offer, which was signed on May 4, 2021 (collectively, the “Letters of Employment”). Both Letters of Employment contain a similar provision titled “Singapore Expat Allowances,” which provides, in relevant part: “the company will also pay for tax assistance while on assignment to Singapore which includes Singapore tax obligations and tax filing assistance in Singapore.”
In the present action, Shah contended that these provisions obligated Defendants to pay his Singapore income tax liabilities for tax years 2019 and 2021, and that the Letters of Employment are unambiguous on this point. On the other hand, Defendants maintained that the clauses refer only to administrative or compliance-related tax assistance, not a financial obligation to assume Shah’s personal tax liabilities.
Plaintiff asked the Court to bar the report prepared by the Defendant’s expert, Dr. Doron Narotzki, an associate professor of taxation and business law.
Tax Expert Witness
Dr. Doron Narotzki is an associate professor of taxation and business law and director of the Master of Taxation Program at the University of Akron.
Narotzki’s work centers on “international, corporate, and personal taxation,” including “tax regimes, balancing tax treaty obligations, and regulatory reporting requirements” in the United States and abroad.
Shah argued that Narotzki’s report is no more than a legal opinion disguised as an “expert report” because it (1) considered whether the Letters of Employment imposed a contractual obligation upon Defendants to pay Plaintiff’s Singapore taxes; (2) recited case law and applied legal doctrines such as the Plain Meaning Rule to the facts in the case; and (3) asserted legal conclusions that Defendants had no legal duty to pay Shah’s Singapore taxes under the Letters of Employment.
The Court agreed with Plaintiff. Portions of Narotzki’s report impermissibly crossed over the line between what can be fairly considered as expert opinion into territory which clearly constitutes a legal conclusion. Indeed, Narotzki’s opinion attempted to address the precise legal question now before the Court: whether under the Letters of Employment agreed upon by the Parties, Defendants were obligated to pay Shah’s Singapore taxes.
More than merely state an impermissible legal conclusion, Narotzki’s report also sought to apply legal authorities and principles such as the “Plain Meaning Rule,” and standards for contract modification to the facts of the case.
However, because substantial portions of Narotzki’s report addressed industry practices and specialized expatriate tax concepts, the Court found that those parts of the report may not be excluded entirely.
Narotzki’s report properly explained how the industry uses terms like “tax assistance,” “tax equalization,” and “tax protection,” and described common structural features of expatriate tax arrangements between employers and employees, such as gross-up provisions, hypothetical tax calculations, and reconciliation mechanisms, in a way that will provide useful context for the jury (should the claims survive summary judgment) in understanding Shah’s expatriate Letters of Employment with Defendants.
B. Shah’s “Four Corners” Argument
Shah separately asserted that Narotzki’s report is inadmissible because it relied on extrinsic documents and maintained that this Court cannot consider such evidence when the Letters of Employment are unambiguous.
Shah’s assertion that the Letters of Employment are “unambiguous” did not bar industry-specific expert opinions on how “tax assistance” is understood in expatriate employment practice, where the term has a specialized meaning. The Court held that Narotzki may therefore address the industry meaning of such term regardless of whether the Letters of Employment are ultimately found ambiguous or unambiguous.
Held
The Court granted in part and denied in part the Plaintiff Nilesh Shah’s motion in limine to exclude the testimony of Doron Narotzki.
Key Takeaway
Narotzki’s statements as to industry standards regarding expatriate agreements provide critical information that can assist the trier of fact in understanding specialized terminology and industry customs in an area far outside ordinary experience. So long as Narotzki’s opinion is descriptive of industry practices and standards—without opining on the ultimate legal question in the action or testifying as to the legal effect of the Letters of Employment—a distinction that is subtle yet important—these portions of the report are admissible, pursuant to Rule 702.
This matter arises from an allision on December 7, 2022, while the tug M/V BURRWOOD WISE was maneuvering a crane barge, the ALEX G, at a docking facility owned by Atalco. During this maneuver, the ALEX G made contact with a dock. An employee of Defendant, Gnots Reserve, Inc., was operating the tug. Atalco brought this action seeking recovery for the resulting property damage.
Gnots retained Captain Ronald L. Campana to offer opinions on (1) the structural condition of the dock and the absence of a functional fendering system; (2) the custom and practice of fendering marine docks on the lower Mississippi River; and (3) the applicability of the U.S. Inland Navigation Rules to the movement of the ALEX G. Atalco filed a motion to strike Campana’s report and testimony.
Marine Surveyor Expert Witness
Captain Ronald L. Campana is a graduate of the United States Merchant Marine Academy, Kings Point, N.Y. He has sailed in various capacities as an officer and master aboard US flagged vessels. Campana came ashore in 1981 and was trained by an existing marine surveying firm, as a Marine Surveyor, that is no longer in business.
Campana has 42 years of experience surveying vessels and marine terminals in the New Orleans area. Prior to his surveying career, and after graduating from the United States Merchant Marine Academy, he spent ten years as an officer aboard vessels mooring at comparable facilities.
His experience qualifies him to give opinions in this case. The challenges to his opinions in this judge-tried case are better directed to the weight of the evidence, not to exclusion of it.
Held
The Court denied Atalco’s motion in limine to strike and exclude the testimony of Ronald Campana.
Key Takeaway
Challenges to the factual bases of an expert’s opinion ordinarily go to weight, not admissibility, and are properly addressed through cross-examination.
This litigation stems from the death of Charles Lamar Vanlandingham in September of 2019. Plaintiff alleged that Vanlandingham suffered a medical episode with seizure activity in the early morning hours of September 15, 2019, and Vanlandingham’s girlfriend called 911. According to Plaintiff, Vanlandingham started to improve in the time it took EMS to arrive. Following the seizure activity, Vanlandingham had apparently transitioned to a “postictal state” that can cause confusion.
Although Vanlandingham was initially compliant with EMS upon their arrival, Plaintiff alleged that “EMS providers tried to force Vanlandingham onto their medical cot,” and when Vanlandingham did not comply, “[EMT] Tuttle ultimately tackled Vanlandingham onto the medical cot.”
Once members of the Oklahoma City Fire Department arrived, Plaintiff alleged that the Firefighters used their body weight to pin Vanlandingham in the prone position for approximately three minutes before Oklahoma City Police Officer Brandon Lee arrived. Officer Lee then put handcuffs on Vanlandingham—still in the prone position—and placed his knee across Vanlandingham’s back.
Plaintiff alleged that Vanlandingham was in this position, handcuffed, for approximately four minutes, during which time “no one checked Vanlandingham’s vitals or advocated for a position change despite Vanlandingham’s clear signs of respiratory distress.” “Without knowing Mr. Vanlandingham’s vitals and without performing any kind of medical assessment,” EMT Tuttle then administered midazolam (a sedative), and Vanlandingham went limp. CPR efforts were unsuccessful, and Vanlandingham died at the scene.
Plaintiff’s claims are against Defendants City of Oklahoma City, Officer Brandon Lee, and American Medical Response Ambulance Service, Inc. (AMRAS). During discovery, AMRAS disclosed an expert report prepared by Molly A. Furin, M.D., M.S., who is board certified in both Emergency Medicine and Emergency Medical Services.
In the present motion, Plaintiff contended that Furin’s offered opinions should be excluded under Fed. R. Evid. 702.
Emergency Medicine Expert Witness
Molly Ann Furin is board-certified in both Emergency Medicine and Emergency Medical Services (EMS) and has obtained a Master of Science in Disaster Medicine and Management.
She has worked at a level 1 trauma center for the past 17 years as well as community Emergency Departments.
Furin supplemented her expert report on May 20, 2025. In it, Furin did not expand the opinions listed in her initial report, but she did provide supplemental explanation of her education and experience in the emergency medicine field. Plaintiff contended that Furin’s supplement is untimely under Fed. R. Civ. P. 26(e)(2).
Furin issued her supplemental report. However, Rule 26(a)(3) also refers to the deadline to file deposition designations, which has yet to expire. Accordingly, the Court found that Furin’s supplement of May 20, 2025, is timely under Rule 26(e)(2).
II. Daubert Motion
Paramedic Tuttle and EMT Barnes performed an appropriate rapid assessment of Vanlandingham upon arrival, including checking blood glucose, and could not proceed with further evaluation and treatment because it became unsafe to do so. Evaluating for scene safety is one of the first skills taught in Emergency Medical Services, and the crew appropriately called for additional resources in a timely manner. Physical restraint of Vanlandingham was necessary at the time in order to prevent harm or injury to himself or crew members.
Upon the arrival of OCFD personnel, including Paramedic Morton, care was correctly transitioned to Paramedic Morton.
Paramedic Tuttle assisted the OCFD by drawing up and administering midazolam IM as requested. Sedation was paramount in order to further evaluate and treat Vanlandingham. Midazolam is a benzodiazepine, utilized for both sedation and treatment of seizures, and when administered intramuscularly takes a minimum of several minutes to take effect. Given the very brief time interval after administration, the midazolam had no causative role in Vanlandingham’s subsequent cardiac arrest.
When Vanlandingham sustained cardiac arrest, he was efficiently treated with high quality [Advanced Cardiovascular Life Support] care.
Analysis
First, the Court found that Furin’s initial report failed to clearly identify the basis for her opinions or explain how certain standards or her experience lead to the conclusions reached. Furin did not identify how her experience in the emergency medicine field led to her specific opinions.
Next, Furin’s supplemental expert report did little to expand on the basis for her four opinions. Rather, Furin focuses on her qualifications to issue opinions regarding emergency medicine.
Furin has largely failed—even after supplementing her report—to provide a basis for her opinions. Furin’s experience in emergency medicine, standing alone, is not sufficient to support her opinion that EMS “could not proceed with further evaluation because it became unsafe to do so.” Apart from explaining her experience in emergency medicine and providing examples of transitions of care, Furin’s supplemental report does not sufficiently explain how her experience (or knowledge of the industry standard) led her to opine that the transition of care in this case was “correct.”
Next, Furin’s supplement did not provide a basis for her opinion that “sedation was paramount in order to further evaluate and treat Vanlandingham.”
Although Furin stated that she “reviewed the patient care reports and documents provided to me, and is qualified to opine as to the quality of care provided when Vanlandingham sustained cardiac arrest,” Furin failed to provide any basis or reasoning for her opinion that the care provided to Vanlandingham was efficient and high quality.
A portion of Furin’s third opinion was admissible under Rule 702 and Daubert because Furin has provided a sufficient basis for it. Furin can opine that—given her firsthand knowledge and experience with the administration and onset of midazolam—the midazolam could not have taken effect before Vanlandingham’s cardiac arrest.
Held
The Court granted in part and denied in part Plaintiff’s motion to exclude the opinions of Dr. Molly Furin.
Key Takeaway
It is fundamental that, if the basis for an expert’s opinions is to be tested for reliability, that basis must be identified in some fashion. Absent some identification of the basis for the expert opinion, there is little or no way to test it against any of the guidelines or factors involved in a Daubert analysis or to otherwise determine its reliability.
This class action lawsuit arises out of Amazon’s practice of using smart-speaker technology (“Alexa”) to surreptitiously: (a) intercept; (b) eavesdrop; (c) record; (d) disclose; or (e) use millions of Americans’ voices and communications, all without their knowledge or consent. Such conduct blatantly violates Washington’s wiretapping law, which applies nationwide to Plaintiffs and all members of the Class.
Defendants here, Amazon.com, Inc. and Amazon.com Services LLC (collectively, “Amazon” or “Defendants”), are therefore liable as a result of their egregious violations of the State Wiretapping laws – and are also liable for their violations of the Washington Consumer Protection Act (“CPA”), the Electronic Communications Privacy Act of 1986 (“Federal Wiretap Act”), and the Stored Communications Act of 1986 (“SCA”). Plaintiffs Kaeli Garner, Jodi Brust, Diane McNealy, Michael McNealy, Ricky Babani, Jeffrey Hoyt, Lorlie Tesoriero, Ronald Johnson, Selena Johnson and Caron Watkins (collectively, “Plaintiffs”) brought this action individually, and on behalf of a Class of similarly situated individuals, to redress those violations of law.
Amazon filed a motion to exclude the testimony of Plaintiffs’ expert, David Hoffman. Defendants sought to exclude Hoffman’s testimony regarding the sufficiency of Amazon’s disclosures in its privacy policies, terms of use, and marketing materials as improper legal conclusion and/or an invasion of the province of the jury.
Privacy Expert Witness
David Alfred Hoffman is the Steed Family Professor of the Practice of Cybersecurity Policy at the Sanford School of Public Policy at Duke University. Hoffman has advised employers and other organizations regarding the use of consumer data, cybersecurity, privacy, and data governance. While employed by Intel Corporation, Hoffman was the Director of Privacy, overseeing privacy issues related to the data Intel collected, processed, and used and Intel’s products.
He has authored internet privacy policies and terms of use documents for corporations and served on governmental advisory boards tasked with considering issues related to the effective provision of information about the collection of personal data by devices. In addition, Hoffman oversaw industry efforts to create a certification process for companies with responsible data management practices, including efforts to adequately disclose data collection and use practices through privacy policies.
The Court found that Hoffman has the necessary experience to opine regarding industry standards and best practices for providing notice to consumers or users that data is being collected and how it will be used. He also has the expertise to compare Amazon’s policies, practices, and disclosures to the industry standards, to identify in what way Amazon’s practices are deficient, and explain how the deficiency or deficiencies would impact a reasonable consumer’s understanding of how Alexa works.
In two important respects, however, Hoffman’s opinions are not supported by any knowledge, skill, experience, training, or education he may have.
Hoffman did not suggest that the universe of representations are subject to or violate any industry standard or best practice
First, with regards to his opinion that Amazon’s marketing materials are inconsistent with and countermand the disclosures made in the privacy policy, Hoffman did not suggest that the universe of representations are subject to or violate any industry standard or best practice. Thus, his area of expertise did not inform this opinion. Nor is there any reason to suspect that his opinion regarding the interactions between documents would be helpful to the trier of fact.
There is no indication that Hoffman has relevant experience or training that would allow him to opine on what Alexa usersactually knew
Second, Hoffman’s conclusion that a user or group of users did not, in fact, understand how Alexa works or did not consent to the recording of their voice data is not supported by any surveys, interviews, research, or studies. There is no indication that Hoffman has relevant experience or training that would allow him to opine on what Alexa users, individually or collectively, actually knew given the disparate sources of information regarding the Alexa device.
Finally, Hoffman will not be permitted to testify regarding opinions that were not included in his report, such as that Amazon shares Alexa data with third-parties or that Amazon created its disclosures with the intent to mislead consumers. He may, however, opine on facts that may be relevant to the jury’s understanding of Amazon’s practices and intentions.
Held
The Court granted in part and denied in part the Defendants’ Daubert motion regarding Professor David Hoffman.
Key Takeaway
While Hoffman’s experiences in evaluating privacy policies and establishing best practices for alerting consumers when and why their personal data is being collected necessarily involves an understanding of how the typical or reasonable consumer would react to and understand different practices, that is not the same as opining what a particular person or group of persons actually knew or understood.
Please refer to the blog previously published about this case:
Plaintiff Matthew Hartley sued Defendants Sunbelt Rental Inc. and Custom Equipment LLC to recover for personal injuries he sustained during a jobsite incident on June 14, 2021.
Plaintiff alleged that on June 14, 2021, he “attempted to move a Sunbelt Rentals Hy-Brid Lift HB-1030 down a ramp when suddenly and without warning it began to rapidly roll down the slope of the ramp despite no effort on his part to power the lift forward.” He further alleged that the lift, which was manufactured by Custom Equipment, LLC, “rolled uncontrollably into a concrete wall at a rapid rate of speed” causing “debilitating physical injuries” and a variety of economic and noneconomic harms.
Plaintiff retained Craig Sylvester, a forensic engineering expert, to determine the “root cause” of the accident. According to Sylvester, “the root cause of the incident on June 14, 2021 was a mis-wired emergency stop button, as well as the placement of one or both of the parking brake levers at the rear of the machine in an intermediate position.”
Defendant Custom Equipment filed a motion to strike certain expert opinions and limit testimony of disclosed expert Craig Sylvester.
Forensic Engineering Expert Witness
Craig A. Sylvester is a former U.S. Navy mustang officer and licensed mechanical engineer with more than 25 years of experience as an operator, maintainer, designer, and inspector of industrial equipment around the world. Sylvester’s expertise in industrial systems is built on his early work performing component-level repairs as an electronics technician, along with formal education in manufacturing and mechanical engineering, and naval architecture.
Defendant requested the Court “exclude the portions of Sylvester’s opinions that are untimely, speculative and unhelpful to the jury.”
Defendant argued that exclusion is warranted because Sylvester’s: (1) supplemental opinions on electromagnetic braking assistance, back emf braking assistance, and arc suppression circuits are untimely and unhelpful to the jury; (2) opinions on the intermediate position of the brake levers are speculative; (3) opinions on the parking brake’s holding torque are unhelpful to the jury; and (4) opinions that the pre-start inspection checklist failed to adhere to the ANSI A92.22 standards are unhelpful to the jury.
Plaintiff contended, and Defendant accepted, that “Sylvester has no intention of testifying that the HB 1030 should have included ‘electromagnetic,’ ‘back emf’ or an ‘arc suppression circuit’ at the time of trial.” The Court thus found these admissibility questions to be moot. Plaintiff also stated that Sylvester “will not be testifying regarding [the holding torque] document” and that the “[ANSI A92.22] standards, which were adopted after the manufacture and sale of the HB 1030, would not apply to [the unit at issue.]” As Defendant did not challenge the admissibility of testimony by Sylvester that “industry standards would include a pre-start inspection of the braking system as a matter of common sense and industry standards” nor do they otherwise challenge Plaintiff’s concessions on these issues, the Court likewise found these admissibility questions moot.
Court’s Decision
The Court concluded that Sylvester’s opinions on the intermediate position of the brake levers “both rests on a reliable foundation and is relevant to the task at hand.”
As for relevancy, the Court found that Sylvester’s opinions on the intermediate position of the brake levers will “assist the trier of fact” to determine the root cause of the June 14, 2021 incident. As the root cause of the incident is “a fact in issue,” Sylvester’s testimony satisfied the standard for relevancy. The Court also concluded that Sylvester reviewed numerous sources of information, utilized reliable principles and methods of forensic engineering, and reliably applied said principles and methods to the facts of the case.
The Court noted that Sylvester “considered seven categories of evidence in reaching his conclusion, only one of which was a document generated during the course of BN Builders investigation, which occurred shortly after the incident in question.” As a result, the Court declined to exclude Sylvester’s testimony on the brake levers as “speculative.”
Held
The Court denied the Defendant Custom Equipment LLC’s motion to exclude the testimony of Plaintiff’s expert Craig Sylvester.
Key Takeaway:
The Court noted that while Defendant raised various other arguments for exclusion, none of these arguments provided a proper basis for exclusion, as they all speak to issues of fact-finding, not gatekeeping.
For example, Defendant’s disagreement with Sylvester’s exclusion of other possible explanations for the accident and his reasons for doing so do not render his opinions inadmissible—they merely make it more likely that the trier of fact will view Sylvester’s conclusions about the root cause of the accident less credible.
Because the Court must act as “a gatekeeper, not a fact finder,” it cannot exclude portions of Sylvester’s testimony for any of these fact-finding based reasons.
Plaintiff Calltrol Corporation (“Plaintiff”) initiated this action on October 6, 2018, against LoxySoft AB and LoxySoft Inc. (together, “Defendants”), alleging breach of contract, tortious interference with prospective economic benefit, unfair competition, false and deceptive practices.
Plaintiff sold call center software, hardware products, and related support services. LoxySoft Inc. is a wholly owned subsidiary of LoxySoft AB. In March of 2002, Plaintiff entered into an agreement (the “Reseller Agreement”) with LoxySoft AB that granted LoxySoft AB a license to market and resell certain call center products for which Plaintiff was a licensed distributor. LoxySoft AB agreed to purchase call center software products, software developer kits, and related support services from Plaintiff.
The Reseller Agreement (“RA”) stated that “[d]uring the term of this Agreement” LoxySoft AB “will not directly or knowingly indirectly participate in the development or commercialization of software products competitive to the [Plaintiff’s] Products.” The RA also provides “an initial term of two (2) years” and “thereafter automatically renewed for successive one (1) year periods (each a “Renewal Period”) unless earlier terminated in accordance with the terms” therein, which included “written notice” to Plaintiff. Plaintiff alleged that Defendants began marketing and selling their own call center products and services (“Competing Products”) to Plaintiff’s customers, directly competing with the products and services they previously purchased and resold from Plaintiff.
Plaintiff further asserted that Defendants failed to provide written notice of their intent to terminate the RA.
To refute Plaintiff’s claims, Defendants offered the declaration of their purported expert, Regis J. Bates Jr. Plaintiff submitted a motion to strike the expert report of Bates.
Telecommunications Expert Witness
Regis J. Bates Jr. has over 50 years of experience in the telecommunications systems, call center products, and predictive dialers. He is the founder of a full-service consulting and training firm specializing in telecommunications and computer convergence, has authored numerous books on telecommunications technologies—including Voice and Data Communications Handbook for McGraw-Hill—and served as a telecommunications manager (or in an equivalent role) for over 14 years across four organizations.
In his report, Bates averred that LoxySoft replaced Calltrol’s technology with publicly available tools, wrote and did not develop proprietary switching platforms or predictive dialers, and did not replicate Plaintiff’s Application Programming Interface (“API”). LoxySoft accessed only the limited code permitted under the RA. He further asserted that Calltrol’s product was increasingly obsolete and prone to failure, which made it commercially unreasonable for LoxySoft to continue aggressively marketing its product. Bates concluded his report by opining that LoxySoft did not misappropriate Calltrol’s trade secrets or reverse engineer its product.
Plaintiff sought to strike Bates’ opinion on the above-mentioned topics, arguing that Bates is “uniquely unqualified” to testify on the parties’ technologies.
The Court is not persuaded by Plaintiff’s arguments and found Bates’ qualifications are sufficient to allow his opinion on the parties’ call center technologies, including predictive dialers and related software. However, Bates is not qualified to opine on economics or business matters. The Court likewise found Bates unqualified to opine on contractual obligations, including Defendants’ “best efforts” under the RA.
Aside from serving as an expert in only two breach-of-contract disputes, Bates is not a contractual expert, and contract interpretation is not a proper subject for an expert to opine on.
In sum, neither Bates’ “skills, experience, training, nor education” provide him with specialized knowledge regarding a business’ profitability and viability, contractual interpretation—including a party’s “best efforts”—or the nature of the business relationship between two parties.
Because Bates lacked the requisite expertise in economics and business, and expert opinion is unnecessary for contract interpretation, the Court struck portions of Bates’ report addressing Calltrol and LoxySoft’s business relationship, Calltrol’s profitability, and LoxySoft’s “best efforts” under the RA.
B. Reliability of Bates’ Expert Opinion
The Court concluded that Bates’ analysis is sufficiently reliable under Rule 702‘s flexible standards to permit his opinion on the parties’ call center technologies, including predictive dialers and related software.
First, Bates conducted a detailed breakdown of the predictive dialer capabilities included in the RA between the parties, using diagrams to illustrate the configurations of LoxySoft’s system when integrated with Calltrol’s software and the operability of Calltrol’s platform itself. He also presented a second diagram to detail LoxySoft’s model change in response to advancements in the call center industry, and a third diagram to highlight this broader industry shift away from old call center technologies to cloud-based services. Bates then explained how LoxySoft built its system on a publicly available algorithm and an open-source communications framework, rather than relying on Calltrol’s proprietary API or source code.
Finally, Bates reviewed Calltrol’s public website, along with the deposition testimony and affidavits from Calltrol employees, to demonstrate the obsolescence of Calltrol’s product, that prompted LoxySoft to transition to a more advanced internet-based platform.
While Bates arguably could have done more to analyze the parties’ call center software and could have provided more support for the conclusions he reached, the Court will not strike his opinion on those grounds.
C. Relevance of Bates’ Expert Opinion
Bates’ report details how LoxySoft used publicly available tools and technology, including an open-source communication framework, and confirms that LoxySoft did not have access to “any of the source code for the Calltrol products.”
This directly refutes Plaintiff’s claim that LoxySoft misappropriated Calltrol’s proprietary information to develop a competing or derivative product. Bates further details technical differences between Calltrol’s product and the technologies used by Defendants, demonstrating that Defendants’ development reflected “industry advancements, not competition.”
Because Bates’ report directly addresses the conduct alleged in the Complaint and provides clear technical analysis, its probative value is high and substantially outweighs any minimal risk of unfair prejudice, confusion, delay, or the jury being misled under Rule 403. Thus, the Court found Bates’ report—excluding areas outside of the scope of his expertise—is sufficiently relevant and admissible.
Held
The Court granted in part and denied in part the Plaintiff’s motion to strike the report of Regis J. Bates Jr.
Key Takeaway:
Any such shortcomings in Bates’ methodology go to the weight of his opinion, not its admissibility. Furthermore, because Bates’ report is based on his years of experience rather than formulaic testing or methodology, the Court will not strike his report for failing to meet the Daubert factors.
In conclusion, the Court found that Bates applied a reasoned, experience-based methodology consistent with Rule 702’s standards, rendering his analysis and technical opinions sufficiently reliable for the jury’s consideration.
Case Details:
Case Caption:
Calltrol Corporation V. Loxysoft AB
Docket Number:
7:18cv9026
Court Name:
United States District Court for the Southern District of New York
This case arises out of Plaintiff Cheyanne Dixson’s 2022 termination as a police officer with the Issaquah Police Department after Defendant, the City of Issaquah, determined it could not accommodate Plaintiff’s religious exemption to vaccination against SARS-CoV-2, an employment requirement implemented by Defendant during the COVID-19 pandemic. Dixon was a patrol officer in the City’s Police Department.
Defendant produced the expert report of John Lynch, M.D., a board-certified physician in infectious disease. Lynch’s proffered testimony includes background information on the COVID-19 pandemic and the development of the first COVID-19 vaccines. Plaintiff filed a motion to exclude all testimony by Lynch.
Infectious Disease Expert Witness
John B. Lynch is a board-certified physician in infectious disease. He currently works as an Associate Medical Director of Harborview Medical Center and a Professor of Medicine at the University of Washington (UW) and actively practices medicine as an infectious disease clinician.
His work at Harborview included serving as the medical director for the occupational health program, and he also served on the Board of Directors of the Infectious Diseases Society of America from 2019 to 2022.
Lynch earned his Doctor of Medicine (“MD”) from the UW School of Medicine in 2002 and his Master’s in Public Health (“MPH”) in epidemiology and global health from the UW School of Public Health in 2011.
Plaintiff asserted that Lynch is not qualified to opine as an expert except on the “efficacy of [CV-19] vaccines,” that his opinions are irrelevant and unreliable, and that his testimony and report will confuse the issues and should be excluded.
A. Rule 702 Challenge
1. Lynch’s Qualifications
The Court held that Lynch is abundantly qualified by both experience and training to render the opinions he offered. Plaintiff has not produced evidence to negate these qualifications.
2. Relevance of Opinions
Defendant offered Lynch’s testimony in support of its “undue hardship” defense to Plaintiff’s claim, under the Washington Law Against Discrimination, that Defendant discriminated against her by failing to accommodate her sincerely held religious belief.
To prevail on its undue hardship defense, Defendant will need to establish that the accommodation sought by Plaintiff—here, remaining unvaccinated and fulfilling her usual job duties but submitting to twice-weekly COVID-19 tests, masking during work hours while in the presence of others, and eating her meals in her car, outdoors, or off site—would result in “substantial increased costs in relation to the conduct of [Defendant’s] particular business.”
Plaintiff repeatedly asserted that information about vaccines and safety risks is irrelevant but does not explain how the health-and safety-related cost Plaintiff’s unvaccinated status imposed on Defendant can be evaluated without this information.
The one argument that Plaintiff presented as to why these topics are irrelevant—”because the Plaintiff was exempt from the vaccine requirement . . . .” —would appear to foreclose any consideration of health risks or other intrinsic “costs” of waiving an employment requirement for an objecting employee. But it is hard to see how an undue burden defense could ever be adjudicated without information about the purpose and value of the employment requirement from which a Plaintiff is exempt or seeking exemption.
3. Reliability of Opinions
Lynch explained in his declaration that his opinions were formed based on knowledge gained in “decades of working in clinical infectious diseases, infectious disease research, public health, and epidemiology,” the medical studies and public health data he cited in his declaration and report, his review of over a dozen documents from this case, and a visit to the Issaquah Police Department.
Though Defendant provided extensive case law on medical expert testimony in its response, Plaintiff offered no reply. Accordingly, the Court found that Lynch’s opinions have “a reliable basis in the knowledge and experience of the relevant discipline.”
Further, where the particular facts of the case are relevant to Lynch’s opinions, he considered them with specificity. For example, he considers Plaintiff’s work duties, the settings in which she worked, and the people with whom she interacted in her role as a police officer.
4. Plaintiff’s Other Arguments
Repeatedly, in support of her arguments on both relevance and reliability, Plaintiff argued for exclusion based not on opinions Lynch has offered but opinions he has not offered, mostly related to Plaintiff’s preferred framing of “the key issue” in this case: how could masking and testing be safe and effective from October to February and then unsafe or ineffective starting February 16, 2022.
Plaintiff also faults Lynch for not being able to precisely quantify “the residual risk of acquisition and transmission” by an unvaccinated person with Plaintiff’s accommodations and not opining on the actual incidence of breakthrough infections among Defendant’s employees or Defendant’s reliance on recommendations by the Centers for Disease Control and Prevention.
Assuming for the sake of argument that these “missing” opinions are relevant and otherwise admissible, the Court held that their absence is a subject for cross-examination, not a basis for exclusion of Lynch’s testimony under Rule 702.
B. Rule 403 Challenge
5. Testimony on Vaccine Development and Approval
Plaintiff objected to Lynch testifying about the development and Federal Drug Administration (“FDA”) approval of vaccines on the grounds that such testimony is both irrelevant and prejudicial, contending that “the introduction of these facts is more likely to prejudice the trier of fact by implying that [Plaintiff] contests vaccines and FDA approval and/or importance or efficacy. This is simply not true and the inclusion is prejudicial.”
As to the relevance of these issues, the Court agreed with Defendant that “[t]his data provides relevant background information about options available to the City and others to control the spread of COVID-19 in the workplace in late 2021 and early 2022.”
As to any potential undue prejudice, Plaintiff explained neither how facts about vaccine history and development imply anything at all about Plaintiff’s personal opinions, nor how such an implication could be prejudicial when the very basis of this case arises out of Plaintiff’s religious objection to a workplace vaccination requirement.
6. Opinions on Vaccine Hesitancy and Misinformation
Plaintiff also objected to a section of Lynch’s report entitled “Vaccine Hesitancy and Misinformation,” on the grounds that it “is likely to be more prejudicial than beneficial to the inquiry.” Besides this assertion, however, Plaintiff offered no argument on this topic.
According to the Court, this alone is a sufficient basis to reject Plaintiff’s unreasoned request for exclusion.
The Court noted, moreover, that most of the opinions Lynch offered in the challenged section are directly responsive either to specific statements in Plaintiff’s complaint or to arguments advanced by Plaintiff during this litigation.
Finally, Plaintiff argued that Lynch’s purported opinion that Defendant should not have accommodated Plaintiff even temporarily “will likely confuse the trier of fact, not assist them.” The Court need not consider the likelihood of confusion because Plaintiff presented no evidence that Lynch has ever expressed this opinion.
The other testimony cited by Plaintiff arose from a question about why Defendant would have accommodated her; Lynch responded that he was neither a human resources person nor involved in the conversations. Lynch tried to discern the rationale by reading the documents with which he was presented and responded that accommodating Plaintiff was a policy decision by human resources. Nowhere in the referenced material did he opine that Defendant should not have accommodated Plaintiff.
These exchanges, viewed along with their mischaracterization here by Plaintiff’s counsel (who also deposed Lynch), create the impression that counsel, not having solicited the deposition testimony she wanted from Lynch, decided to distort his testimony beyond recognition. The Court will give counsel the benefit of the doubt and assume that this was an honest mistake rather than a willful misrepresentation.
Held
The Court denied the Plaintiff’s motion to exclude the opinions of Defendant’s expert John Lynch.
Key Takeaway:
In ignoring the applicable standards, Plaintiff presented no clear argument that Lynch’s experience did not support his conclusions (and the Court finds that it does); that his reasoning is circular, speculative, or otherwise flawed (and the Court finds that it is not); or that his reasoning is not adequately explained (and the Court finds that is is).
Lynch explained in his declaration that his opinions were formed based on knowledge gained in “decades of working in clinical infectious diseases, infectious disease research, public health, and epidemiology,” the medical studies and public health data he cites in his declaration and report, his review of over a dozen documents from this case, and a visit to the Issaquah Police Department. This is clearly consistent with the types of sources typically relied on by medical professionals.
Case Details:
Case Caption:
Rosa V. City Of Issaquah Et Al
Docket Number:
2:24cv1673
Court Name:
United States District Court for the Western District of Washington
Drew Dixon alleged that the Defendant, Antonio Marquis “L.A.” Reid sexually harassed her and refused to allow her to succeed unless she acquiesced to his demand to be alone and in close proximity to her while she was employed as an A&R executive at Arista Records from 1996 to 2002.
Dixon claimed that Antonio Reid sexually assaulted her twice in 2001.
Dixon departed Arista in 2002, leaving the music industry to pursue a degree at the Harvard Business School.
Michael Selverne is an attorney who, for the past 39 years, has specialized in the field of executive compensation in the music industry. Over the course of his career, he has represented artists in their contract negotiations for recording and performance agreements, record executives in their negotiations of compensation packages with their employers, and music labels in their negotiations with executives.
Mark Plotkin holds a Bachelor of Arts degree from a joint program between Case Western University and The Cleveland Institute of Music and has over two decades of diverse experience in the music industry. Plotkin is a member of the Recording Academy, co-founded Decision Desk and Wifi Music School, and is the founder and CEO of Beast Music A.I., a media platform utilized by record labels such as RCA Records and Atlantic Records. Plotkin further serves as a Professor and the Area Head of Business and Technology at New York University’s Clive Davis Institute of Record Music.
Dr. Chitra Raghavan is a licensed clinical psychologist with more than twenty years of experience. Raghavan received her doctorate in clinical and community psychology at the University of Illinois at Urbana-Champaign and post-doctoral training at Yale University. Currently, she serves as a Professor of Psychology, Director of the Forensic Mental Health Counseling Program, and Coordinator of Victimology Studies in Forensic Psychology at John Jay College of Criminal Justice.
She has previously testified as a witness for the prosecution in other cases regarding the effects of traumatic abuse and coercive control and given over 150 conference presentations and published over forty articles in various publications on subjects related to domestic violence, sex trafficking, and trauma.
In connection with this litigation, Selverne submitted an expert report setting forth his opinions regarding Plaintiff’s lost future compensation. In rendering his opinion, Selverne reviewed Dixon’s compensation package during her time at Arista.
While the Plaintiff was hired in 1996 as a Senior Director for a two-year term, she was promoted to the position of Vice President when one of her “designated artist” albums sold 500,000 records. Selverne opined that the improvement in her compensation package and title in such a short time span indicated that Arista viewed Plaintiff as a “budding superstar.”
Reviewing the compensation packages of contemporaries of Plaintiff who rose to the ranks of CEOs for major music labels, Selverne concluded that, if Dixon had “continued along the trajectory she was on when she departed Arista, it is highly likely that Dixon’s earnings would have reached seven or eight figures annually. It is equally likely that Dixon would have created a joint venture with a major record company and see her fortunes rise into the nine figures.”
Analysis
Selverne did not purport to calculate Plaintiff’s lost earnings based on her actual compensation at the time she left Arista. Indeed, he did not purport to calculate her lost earnings at all. He did not, for example, specify how long Plaintiff would have expected to work in the industry, with reference to verifiable statistics regarding longevity in the industry or even actuarial tables reflecting life expectancy. He did not calculate the value of lost benefits.
Selverne’s lack of methodology in reaching his opinion on future earnings loss is reflected in his failure to quantify such damages. Selverne vaguely asserted that Plaintiff suffered damages in the range of millions to hundreds of millions of dollars.
Selverne conjectures that Plaintiff not only would have continued to have a successful career in the music industry, but that she would have reached the pinnacle of the profession to become the CEO of a major record label or otherwise enter into a lucrative joint venture agreement. The Court held that these hypothetical promotions, bonuses, and business deals lack sufficient evidentiary foundation, and thus cannot form the basis of an expert opinion.
Mark Plotkin
Plaintiff retained Marc Plotkin to provide an expert opinion regarding the hypothetical earnings Plaintiff would have received from her A&R commission structure had she successfully signed Kanye West and John Legend.
Plotkin first looked to Plaintiff’s employment agreement for the relevant formula and then researched West and Legend’s first contracts with Def Jam and Columbia Records, respectively, as well as their sales data year by year to ultimately determine how many records and singles were sold across various mediums and the price per unit.
Analysis
Defendant objected to Plotkin’s reliance on historical data regarding record sales as the basis for his opinion. Defendant contended that it rests on the faulty assumption that West and Legend would have released the same albums while at Arista and thus earned the same revenues.
The Court held that these are the types of assumptions that go to the weight of the evidence, not admissibility. The use of historical data may not provide exactitude, but allows for calculations to a reasonable certainty, which is all the law requires.
Defendant also argued that the entirety of Plotkin’s opinion is speculative, in that it is unknown whether these artists would have signed to Arista if offered the chance or that they would have been deemed Dixon’s designated artists if they had done so. Defendant misapprehended the nature of Plotkin’s inquiry. Plotkin is not purporting to offer an opinion as to whether West or Legend would have signed to Arista, or if they had whether Dixon would have been responsible for signing them. Rather, his opinions are limited to a calculation of what commissions Plaintiff would have been entitled to under the terms of employment contract in the hypothetical world where she was responsible for signing the artists while at Arista.
Dr. Chitra Raghavan
Raghavan opined that she “found Dixon’s reported history to be believable” because she reported a decrease in recent symptoms rather than an increase, a pattern that would be typical of malingerers; Plaintiff’s emotional and physical responses were consistent with the experiences she relayed; she was able to clearly explain the abuse fact pattern and her narratives over multiple interviews; and three objective tests indicated that she responded genuinely about her mental health.
She further opined that Defendant “used numerous tactics of coercive control to maintain his abusive power” over Plaintiff, including physical violence, manipulation, sexual abuse, retaliation, and microregulation. Raghavan opined that the “sexual assaults and the atmosphere of coercion and hostility” that Plaintiff suffered triggered a severe episode of complex PTSD.
Analysis
The Court held that Raghavan’s anticipated testimony is replete with improper opinions regarding witness credibility and bolstering. Such bolstering testimony regarding the truth of the underlying factual allegations in the case is not the proper province of an expert witness.
The Court held that Raghavan is precluded, pursuant to Rules 702 and 403, from offering testimony at trial regarding Plaintiff’s credibility, including an opinion that Plaintiff was the subject of a sexual assault by Defendant or that Defendant exercised coercive control over Plaintiff. She is also precluded from opining on the causation of Plaintiff’s conditions. Raghavan can testify, however, as to coercive control generally, as background; her diagnoses of Plaintiff’s mental health conditions and the bases for her diagnoses; and that Plaintiff’s condition is “consistent with” that of individuals who have been sexually assaulted.
Held
The Court granted the Defendant’s motion to preclude the testimony of Michael Selverne.
The Court denied the Defendant’s motion to preclude the testimony of Mark Plotkin.
The Court granted in part and denied in part the Defendant’s motion to preclude the testimony of Dr. Chitra Raghavan.
Key Takeaway:
Where lost future earnings are at issue, an expert’s testimony should be excluded as speculative if it is based on unrealistic assumptions regarding the Plaintiff’s future employment prospects.
Selverne’s opinion is not only of little assistance to a jury, but also rests on inherently speculative assumptions.
