Plaintiffs’ home was damaged by a fire on June 21, 2021. At the time of the fire, Plaintiffs had an insurance policy with State Farm.
Plaintiffs alleged that Defendant State Farm failed to abide by the policy which allowed, at the insureds’ option, to either have the damage repaired or pay for the damage. Plaintiffs alleged that State Farm, without their consent issued payments to Plaintiffs and the mortgage holder rather than allowing Plaintiffs to decide whether to accept payment for the damage or repair the property.
Defendant sought to exclude the testimony of Pete Hennessey, Plaintiffs’ expert witness pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, arguing that Hennessey’s report is insufficient.
Construction Expert Witness
Peter Hennessey has been building homes for over 25 years. He has personally built over three hundred residential homes and is one of the most respected home builders in the industry.
Hennessey stated that it is his opinion that it would be too risky and too expensive for the type of home to be rebuilt, to put it on top of the then existing foundation after the fire, which was not engineered to current standards.
The basis of the facts or data considered by Hennessey included an examination of the site, obtaining estimates from subcontractors and preparing a detailed building budget report, which he set out in an exhibit attached to his report.
However, the Court found that Hennessey’s report is entirely inadequate under Rule 26 standards. The most critical requirements of the Rule–the basis and reasons for the expert’s opinions and the data or other information considered–are totally lacking.
In other words, the mere submission of subcontractor estimates told Defendant nothing about the substance of Hennessey’s calculation of the damages and estimated repair costs and left it open to unfair surprise.
Although the surprise and prejudice could be cured by taking Hennessey’s deposition, the Court declined to require this of Defendant because doing so would shift the burden of disclosure onto Defendant whereas this burden is placed squarely on Plaintiffs by the Rule. Plaintiffs elected to designate Hennessey as an expert who may be used to provide evidence under Federal Rule of Evidence 702, 703 or 705, and then failed to provide the requisite information required by Rule 26(a)(2)(B).
However, Plaintiffs were granted additional time to comply with Rule 26(a)(2)(B) by submitting an expert report prepared and signed by Hennessey in accordance with the requirements of the Rule, if they wished to offer Hennessey as an expert witness.
Held
The Court granted Defendant’s motion to strike the testimony of Pete Hennessey.
Key Takeaway
Plaintiffs have offered nothing to establish that the failure to comply with Rule 26(a)(2)(B) was substantially justified. The surprise and prejudice to Defendant as a result of the failure are significant and have not been cured to date through supplementation or otherwise.
Plaintiff Sergio Romero was hired by Defendant Tribune Media Company (“Tribune”), a national media company that owns and operates various news outlets and television stations, as an Account Executive.
On or around June 21, 2023, Plaintiff was diagnosed with gastric adenocarcinoma, also known as stomach cancer. To accommodate Plaintiff’s cancer diagnosis, Defendant authorized a medical leave of absence for Plaintiff on October 23, 2023. By February 28, 2024, Plaintiff’s approved FMLA/CFRA leave had been fully exhausted.
After accommodating Plaintiff’s absence since October 2023, Defendant notified Plaintiff by letter on June 14, 2024 that his employment would be terminated on July 1, 2024 for failure to return from exhausted leave, resulting in Plaintiff filing a wrongful termination suit.
Defendant filed a motion to exclude the testimony of Plaintiff’s expert witness George A. Jouganatos, Ph.D. while Plaintiff filed a motion to strike or exclude the testimony of Defendant’s expert June Hagen, Ph.D.
Economics Expert Witness
George A. Jouganatos, Ph.D. has been a college lecturer for more than 35 years. He has taught economics, finance, management, ethics, and quantitative analysis at University of California, Davis, University of California, Santa Cruz, California State University, Sacramento, and University of San Francisco.
June Hagen is a vocational expert and Certified Disability Management Specialist with decades of experience in vocational assessments, labor market research, and disability evaluations. Hagen holds a Ph.D. in Clinical Psychology from the California Graduate Institute, an M.A. in Community/Clinical Psychology from Pepperdine University, and a B.A. in Psychology from Pepperdine University. She is certified by the American Board of Vocational Experts and has extensive experience in vocational rehabilitation and disability management.
A. Defendant’s Motion to Exclude Plaintiff’s Expert
Defendant argued that Jouganatos failed to submit a detailed and complete written expert report as required by Federal Rule of Civil Procedure 26 as his report failed to contain the facts or data considered by Jouganatos in forming his opinions.
To begin with, Jouganatos submitted a declaration in which he described his background and qualifications. In relevant part, he stated that his “assignment was to analyze the historic (‘back pay’) economic loss and the present value of future (‘front pay’) economic loss for Sergio Romero.” Moreover, he stated that he “employed a standard forensic economic methodology consisting of: (1) establishing a baseline earnings stream, (2) projecting earnings over worklife expectancy, (3) accounting for benefits, (4) applying wage growth, and (5) discounting to present value using a risk-free rate.”
The following relevant documents were among those reviewed: Complaint, Romero’s employment record at Tribune, pay advices 2020-2024, resume, and responses to economist’s questionnaire and follow-up questions. Jouganatos calculated back pay as extending from July 1, 2024 to June 1, 2026, and front pay from June 1, 2026 going forward 3.58 years, the remainder of Plaintiff’s projected “worklife.”
Having reviewed Jouganatos’s report, the Court found it sufficient for the purposes of Fed. R. Civ. P. 26(a)(2)(B)(ii). The report did not reproduce the questionnaire or responses and follow-up questions upon which the expert expressly relied. However, the scope of what Jouganatos testified to is limited and is adequately supported by documents in Defendants’ possession or that were obtainable by Defendant.
B.Plaintiff’s Motion to Exclude Defendant’s Expert
Plaintiff moved to exclude the statement of Defendant’s expert witness, vocational rehabilitation expert June Hagen, Ph.D., that Plaintiff could have found work within 23 weeks of his termination. Plaintiff asserted that this testimony should not be permitted because Hagen’s expert witness report failed to identify any substantially comparable positions that were available in December 2024; (2) Hagen’s reliance on Bureau of Labor Statistics to determine Plaintiff could have found comparable employment within 23 weeks from his termination is not based on any facts or evidence of substantially comparable positions in the Sacramento area; and (3) none of the open positions identified in Hagen’s expert witness report met the standard for “substantially similar employment.”
Hagan’s report identified the documents she reviewed, which included deposition transcripts, court filings, and discovery responses. The report included a summary of Plaintiff’s personal, medical, educational, and work history, as well as his employment skills and history of compensation. The report included a timeline of Romero’s job search, which Hagen stated that she sourced from Plaintiff’s deposition.
As a result, Plaintiff did not identify any procedural defect in the disclosure of Hagen under Rule 26.
Held
The Court denied Plaintiff’s motion to exclude the testimony of Defendant’s expert, June Hagen, without prejudice to a motion in limine to be scheduled at the Final Pre-Trial Conference.
The Court denied Defendant’s motion to exclude the testimony of Plaintiff’s expert, George Jouganatos, without prejudice to a motion in limine to be scheduled at the Final Pre-Trial Conference.
Key Takeaway
The expert report must be complete such that opposing counsel is not forced to depose an expert in order to avoid ambush at trial; and moreover the report must be sufficiently complete so as to shorten or decrease the need for expert depositions and thus to conserve resources.
In this civil action, the Plaintiffs—Jacob Yoder, Shawn Yoder, and Natasha Yoder—brought various state-law claims against Conaway Racing & Trucking, LLC (“Conaway”); Aaron J. Pacheco; Builders FirstSource, Inc., Builders FirstSource-Atlantic Group, and Probuild Company, LLC (collectively, the “BFS Defendants”); and D.R. Horton, Inc., along with an unnamed John Doe Defendant, arising from a motor-vehicle accident between Jacob Yoder’s 1994 Ford Bronco and Conaway’s tractor-trailer that occurred on October 2, 2020.
The BFS Defendants filed a motion to exclude and/or strike the Plaintiffs’ liability expert Rose A. McMurray.
Traffic Safety Expert Witness
Rose Ann Ferrelli McMurray is a motor carrier safety expert providing advice and counsel to attorneys involved in motor carrier injury and death cases, as well as general consultant services. She is a former federal safety official with extensive knowledge of regulations and policies, and a lead official on traffic safety initiatives, including impaired driving occupant protection and speed management. She has held various volunteer leadership positions within the National Safety Council.
In her expert report, McMurray described the regulatory framework for operating as a motor carrier in the United States and she addresses the specific facts of this case. In this regard, McMurray explained that she reviewed documents regarding the facts of this case, road safety reports, motor carrier policies and practices and that she applied her skills acquired during her tenure as a Chief Safety Officer for the FMCSA in reaching the expert opinions contained in her report.
Moreover, the Court found McMurray’s expert opinions relevant to the Plaintiffs’ negligent hiring and negligent entrustment claims in this case.
McMurray testified that the BFS Defendants failed to exercise due diligence in ensuring that they entrusted goods to a competent motor carrier and should be held responsible for their decision to do business with a ‘high-risk motor carrier.’
While the BFS Defendants understandably disagreed with McMurray’s expert opinions, they have not shown that her opinions are unreliable and should be excluded.
The BFS Defendants argue that McMurray’s expert report is unreliable and irrelevant, because: (1) the alleged Conaway speeding violations on the FMCSA website are not relevant to the October 2, 2020, Accident; (2) the expert report lacked details about the alleged insufficient Conaway driver credentials; (3) the report did not explain why Pacheco’s CDL license is insufficient to satisfy industry safety standards; (4) Conaway had insurance coverage at the time of the October 2, 2020, Accident; and (4) the term “high risk” carrier is not defined in the expert report. But these concerns largely reflect disagreements about the evidence in this case and the weight that should be given to McMurray’s opinions by the trier-in-fact.
As a result, the Court is satisfied that McMurray’s expert report met the above standards of reliability and relevance.
Held
The Court denied the BFS Defendants’ motion to exclude and/or strike the testimony of Rose McMurray.
Key Takeaway
A careful reading of the expert report of McMurray showed that the report and the opinions contained therein are based upon the factual evidence in this case, and the applicable motor carrier safety regulations and industry standards, and that McMurray has significant experience working in the area of motor carrier safety. And so, the Court declined to strike and/or exclude McMurray as an expert witness in this case.
Rebel, a cheerleading apparel brand based in Texas, sells, among other products, a backpack called the “Rebel Dream Bag.” Plaintiff holds a trademark in the Dream Bag’s “two-dimensional hourglass shaped enclosed curved figure double outline design, with an outlined straight rectangular shaped top line and an outlined curved three-fourth rectangular shaped line underneath, both inside the curved figure outline design,” as pictured.
Jim Lundberg, under the business name CheerStix, operated an interactive internet store which sells cheerleading apparel, including cheerleading backpacks. In August 2021, Lundberg engaged designer Fernando Robert to develop a cheerleading backpack. Lundberg sent Robert examples of his desired design, including images of the Rebel Dream Bag and Nfinity Bag. Lundberg said he wanted his “own version” of a bag, though Robert noted that his mock-up possessed many similarities to the Rebel bag.
After Defendant’s bag—the “It Bag” or “CS Athletic Bag”—entered the market, Rebel sued Lundberg for trademark infringement.
Defendant filed a Daubert motion to exclude the expert report of Rob Wallace, who opined, based upon survey evidence, that the Dream Bag has acquired secondary meaning. Plaintiff separately moved to exclude the expert report of Hrag Nassanian, who opined upon the functionality of the Dream Bag’s trade dress.
Branding Expert Witness
Rob Wallace has extensive experience in brand identity strategy and design as the former managing partner of Wallace Church, Inc., one of the most recognized and accomplished brand identity strategy and design consultancies.
Hrag Nassanian worked for over 20 years as a product designer and developer of bags, including backpacks, duffel bags, gym sacks, shoulder bags, luggage, roller bags, totes, and messenger bags. Nassanian built the product line of basketball bags at Nike and led the company’s global bag product design and development for several kinds of athletic bags. Nassanian previously taught a college course on principles of bag design and currently consults on product design and development.
Plaintiff retained Rob Wallace to testify regarding whether the Rebel Dream Bag’s trade dress has acquired secondary meaning among the consuming public. Wallace’s survey included a population of respondents who purchased cheerleading backpacks within the last twelve months and planned to do so again in the next twelve months.
Defendant argued that the Court should exclude Wallace’s expert testimony and expert report based upon the survey’s use of an unreliable methodology.
1.Universe
Lundberg argued that the survey consisted of an underinclusive universe, as it excluded those consumers who have not purchased cheerleading equipment in the last 12 months but plan to do so in the next 12 months.
However, Lundberg has not shown that excluded consumers from the survey universe represent a “sizeable portion” of the market. Consequently, Lundberg’s criticisms related to the sampling universe go to the weight of the evidence, not the survey’s admissibility.
2. Whether Survey Questions Were Clear, Precise, and Nonleading
Here, Defendant contended that the following question was flawed: “From the design of this product, do you believe that this backpack comes from one source/ manufacturer or is it a generic design that is used by many different backpack manufacturers?”
A critique of whether the survey question focused on the correct issue did not affect admissibility, but rather, “goes to how much weight the Court should give the survey results.” Accordingly, Lundberg’s argument regarding this survey question goes to the survey’s weight, not admissibility.
Defendant additionally argued that the lack of a survey pre-test warrants exclusion. On the contrary, pre-tests “are not required” and do not justify the exclusion of that expert’s testimony.
Therefore, the Court held that Wallace Survey’s lack of a pre-test did not render the survey inadmissible.
3. Other Concerns
Defendant argued that the Wallace Survey warrants exclusion, in part, because it lacked a sufficient control group. Because courts have admitted surveys with no control group at all, criticisms of the Wallace survey’s control group here go to its weight, not admissibility.
Likewise, the failure to remove Rebel’s star-shaped “R” design logo goes to the weight of the survey, not admissibility. Since the images of the Rebel Dream Bag presented to Wallace Survey respondents included this indicium of origin, Lundberg argued the Wallace Survey “simply measures how many respondents recognize the backpack as coming from one company because it contains a brand logo on it.”
The presence of source-identifying indicia, however, does not necessarily make a survey inadmissible. Here, the star “R” logo appeared only on Rebel’s backpack, not on Lundberg’s. As a result, there exists little risk of respondents mistaking the Rebel and Lundberg backpacks as deriving from the same source on the basis of the logo.
In summary, for the reasons described above, the Court found the Wallace survey admissible.
Hrag Nassanian
Nassanian opined on the functionality of the Rebel Dream Bag design, evaluating the functionality of the bag’s individual components and the overall bag in the context of its use generally and its unique role in cheerleading.
Nassanian concluded that Rebel Dream Bag’s trade dress overall remains functional, as do the following components on the bag: contrasting color zipper pocket outlines; front pocket style and placement; side mesh and placement; auxiliary side pocket style and placement; glitter fabric; interior-fabric monogramming patterns; shoe compartment style and placement; and clip placement.
Rebel argued that Nassanian’s lack of knowledge regarding cheerleading renders him ineligible to opine on the Dream Bag, designed for cheerleaders. While Nassanian’s report touches upon the bag’s use in cheerleading, his opinion also encompasses manufacturing details, design choices common to bags generally, and non-cheerleading-specific use of the bag. These opinions derive from Nassanian’s uncontested expertise in bag product design and development, which does not require specific cheerleading knowledge or expertise.
Methodology
Rebel argued that Nassanian’s methodology remains unreliable because he only evaluated the backpack’s functionality based upon its components, not in totality; Nassanian failed to consider alternative designs; and Nassanian only looked at the backpack and cheerleading in preparation for this lawsuit.
Rebel’s challenges lacked merit. First, Nassanian stated that he did evaluate the backpack’s functionality in totality, as well as the bag’s individual components, and the report confirms his assertion. Likewise, Nassanian’s report clearly included consideration of alternative designs, including a lack of contrasting colored zippers, a different radius for front pocket styles, and alternative locations for a side mesh pocket. Nassanian also considered other backpack designs. Finally, the fact that Nassanian’s testimony was expressly developed for the purpose of testifying is not unusual; that is undoubtedly the case for most, if not all, retained expert witnesses.
Though Nassanian had not previously worked with competitive cheerleading, he nonetheless possesses extensive experience with bag design and development, and with specialty athletic bags in particular.
The the Court found that Nassanian’s methodology met the minimum requirements under Daubert.
Held
The Court denied Defendant’s Daubert motion to exclude the expert report of Rob Wallace.
The Court denied Plaintiff’s motion to exclude to the testimony of Hrag Nassanian.
Key Takeaway
Nassanian’s methodology extensively considered his observations of the Rebel Dream Bag and other athletic bags, and Nassanian’s extensive experience and knowledge within the field of bag design and development. This methodology creates no issues for reliability under Daubert.
An expert might draw a conclusion from a set of observations based on extensive and specialized experience.
On August 27, 2020, Hurricane Laura made landfall in Southwest Louisiana. In the original complaint, The Pentecostal Church of DeQuincy (“TPCD”) alleged that it sustained damage from the Hurricane, and that Church Mutual has underestimated the cost of repairs. The five (5) buildings considered as “Covered Property” at issue in this litigation are identified as the: (1) Sanctuary, (2) Activity Center, (3) Sunday School/Fellowship Hall, (4) Mobile Home, and (5) Pole Barn. During the relevant time period, Church Mutual provided coverage for the Covered Property.
The Church reported its claimed loss on September 1, 2020. TPCD filed a motion to exclude the opinions of Lori Cox. TPCD maintained that Cox’s opinions will not assist the trier of fact, and they are unreliable and redundant.
To begin with, TPCD argued that Cox’s testimony did not rely on any recognized engineering methodology or engineering analysis, and that she ignored a plethora of evidence.
Engineering Expert Witness
Lori Lynn Cox is a licensed Professional Engineer with over 25 years of experience in forensic engineering, specializing in structural failures, construction defects, premises liability, and construction-related injury investigations. She is currently Regional Manager for Engineering Design & Testing Corp. She is also licensed in 35 states and has served as a Regional Director with ProNet Group, where she led complex investigations involving property loss, liability disputes, and building performance issues.
TPCD complained that Cox’s evaluation of the Sanctuary and Sunday School buildings was limited to a review of photographs and other engineers’ reports.
However, the Court has reviewed Cox’s expert report to address TPCD’s complaints and finds that they are unfounded. The Court noted that Cox performed a site inspection of the TPCD buildings/structures, but the Sanctuary and Sunday School had already been demolished and rebuilt.
Next, TPCD criticized Cox’s report because she allegedly did not give adequate evaluation of the pre-existing conditions of the buildings, referring to TPCD’s previous insurance claim as a result of the 2017 tornado. Again, the Court is confused as to what TPCD is complaining about.
After all, Cox acknowledged that there was a “fractured and bowed roof framing of the Sunday School [that] was documented following the 2017 tornado effect…. This was documented in the estimate provided by Risk Management Services.”
TPCD complained that Cox did not perform “any mathematical equations to determine the lateral loads that were presented to the building as a result of the hurricane.”
Again, TPCD did not explain how her methodology is inappropriate because she did not perform any engineering calculations.
TPCD also argued that Cox’s testimony and opinions are duplicative of Church Mutual’s principal expert. Church Mutual informed the Court that their expert’s work in this matter was to perform a limited visual inspection of the sanctuary, Sunday School and multipurpose building and recommend repairs/remediation of damages, whereas Cox was supposed to inspect the structures at issue and document their conditions with regards to improvements made following Hurricane Laura and/or Hurricane Delta. Church Mutual instructed Cox to provide an opinion as to the damage that was the result of Hurricane Laura.
Held
The Court denied TPCD’s motion to exclude the testimony of Lori Cox.
Key Takeaway
Rejection of expert testimony is the exception rather than the rule, and the court’s role as gatekeeper does not replace the traditional adversary system and the place of the jury within the system. Instead, vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.
Please refer to the blogs previously published about this case:
Plaintiff, Robert Rone (“Rone”) asserted claims against Kiesha Pettway, RN, and Felicia Crawford, CRNP, for alleged violations of the Fourteenth Amendment of the United States Constitution pursuant to 42 USC § 1983 relating to Rone’s incarceration at the Mobile County Metro Jail on May 7, 2021.
Crawford and Pettway filed a motion to exclude the testimony of Robert’s purported expert, Ramzy Rimawi, M.D., pursuant to Fed. R. Evid. 702.
Internal Medicine Expert Witness
Ramzy Husam Rimawi, M.D. received his M.D. from Ross University School of Medicine, after which he completed his Internal Medicine internship and residency training at NYU Lutheran Medical Center, followed by two clinical fellowships in Critical Care Medicine and Infectious Diseases.
He is triple American Board certified in Internal Medicine, Infectious Diseases and Critical Care Medicine.
Crawford and Pettway argued that Rimawi’s opinions did not assist the Court with the decision as to whether Crawford and Pettway were deliberately indifferent to Robert’s serious medical need. Crawford and Pettway argued that Rimawi did not know the actions or inactions that were taken by either of them and he did not analyze the medical care and treatment they provided to Rone.
Indeed, in Robert’s response to the motion to exclude, he acknowledged that Rimawi “does not know what the nurse Defendants did, what the jail or NaphCare policies are, or even what deliberate indifference is” and he is solely a causation expert in this matter, who opined the stress that Robert experienced from his arrest and surrounding events caused him to develop shingles and chronic postherpetic neuralgia, as well as suffer symptoms consistent with post-traumatic stress disorder. These may be effects, but this opinion is not relevant to the claims.
Since Rimawi’s expert opinions are limited to medical effects and do not address whether Crawford and Pettway were deliberately indifferent to Robert’s serious medical need, they are not relevant to the claims. Rather, they would only be relevant as to any damages. Since the Court determined summary judgment is granted on the claims for deliberate indifference to a serious medical need, the motion to exclude was denied.
Held
The Court denied Kiesha Pettway and Felicia Crawford’s rule 702 motion to exclude the testimony from Plaintiff’s purported expert Ramzy Rimawi, M.D.
Key Takeaway
The district court’s objective is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.
In this landlord-tenant dispute, Defendant Gator Flower Mound, LLC (“Gator”) asked the Court to exclude the damages testimony of Alan Someck, the expert witness designated by Plaintiff Arch & Eng, LLC (“Z Grill” or “Plaintiff”), as irrelevant and unreliable.
Z Grill alleged economic injury due to problems with the premises it leased from Gator, the landlord. In December 2003, Plaintiff’s and Gator’s predecessors entered into a lease for a commercial premises located at the Marketplace at Flower Mound shopping center (the “2003 Lease” for the “Premises”). On March 02, 2016, Gator and Plaintiff executed an Assignment and Assumption of Lease, through which Plaintiff became the tenant at, and occupied, the Premises (the “2016 Assignment”).
In 2019, despite Plaintiff having complained of problems with the Premises since 2016, Plaintiff elected to enter into a Third Amendment to Lease, extending the 2003 Lease through January 31, 2025. Plaintiff abandoned the Premises in or around January 2024, and brought suit that same month, alleging that roof leaks and an odor had persisted through the entirety of its tenancy, and had caused Plaintiff to suffer economic harm.
Hospitality Expert Witness
Alan Someck has decades of experience in the hospitality industry as an owner, operator, consultant, and teacher. He has also served as a full-time Management Instructor at the Institute of Culinary Education in New York City and previously served as an Adjunct Professor of Hospitality Management at the New York Institute of Technology.
In his expert report, Someck posits that the presence of bad odors in and around Defendant’s leased property contributed significantly to Plaintiff’s purported loss of profits and investment capital.
I. Lost Profits
Defendant raised two arguments against Someck’s interpretation of Plaintiff’s proposed lost profits damages. First, Defendant averred that the leasing agreement between the parties prohibited recovery of consequential lost profits, rendering Someck’s opinion on the subject irrelevant. Second, Defendant claimed that Someck failed to deduct actual profits from claimed lost profits, rendering his opinion unreliable.
The Court previously held that Plaintiff may potentially recover its lost profits under the Contract if it proves those profits are a “direct,” as opposed to a “consequential,” result of Defendant’s wrongful acts. The Court also held that Plaintiff may potentially recover its lost profits under certain tort causes of action. Thus, Someck’s opinion is not irrelevant on these grounds. On the contrary, Someck’s opinion will likely be crucial in helping Plaintiff carry its burden at trial.
Defendant’s second argument is unpersuasive, as its claim that “Someck fails to deduct actual profits from claimed lost profits” is directly countered by the fact that Someck has since revised and reduced the applicable projected profits by $150,730.00 “based on the correct assumption . . . that actual profits needed to be subtracted from projected profits to get the corrected lost profits.” Because Someck has fixed the alleged “foundational flaw” in his methodology, the Court found that Someck’s testimony on Plaintiff’s recovery for lost profits is not unreliable.
II. Lost Investments
Defendant argued that Someck’s proposed testimony on Plaintiff’s “lost investments” should be excluded because of its irrelevance and unreliability.
Defendant argued that Someck has failed to connect any damage amount to any act or omission taken by Defendant and has instead merely combined all of Plaintiff’s business expenses over the years and offered it as proof of “lost investments.” The Court agreed, and found that Someck’s opinion on “lost investments” is impermissibly general under the facts of this case.
Someck did not offer any reasoning or methodology to explain how his definition of lost investments constitutes a compensable injury as opposed to an unrelated expense. Nor did Someck offer insight as to the source of these expenses. For instance, he did not identify which portions of the “lost investments” arose as a pecuniary loss from Defendant’s alleged negligent misrepresentation as opposed to Defendant’s alleged fraudulent inducement.
Second, Someck’s opinion is unreliable. Defendant has argued and provided sufficient evidence that Plaintiff’s “lost investment” damages constitute an impermissible attempt to recover for expenses borne by third parties. Someck’s testimony simply does not permit the Court to accurately distinguish between injuries incurred by Plaintiff and the injuries incurred by illusory “plaintiffs.” Neither Someck nor Plaintiff have clarified their interpretation of “lost investment” damages on this issue.
The Court excluded Someck’s expert opinion testimony as to Plaintiff’s lost investments.
Held
The Court granted in part and denied in part Defendant Gator Flower Mound, LLC’s motion to exclude the testimony of Alan Someck.
Key Takeaway
Relevance depends upon whether the expert’s reasoning or methodology properly can be applied to the facts in issue. The Court does not need help to add up numbers on a page. As a result, Someck’s bare assumption, combined with a receipt of gross expenses, is not sufficiently relevant to render his opinion admissible at trial.
This case arises out of a slip-and-fall incident that occurred at US Bank’s branch office in Kirkland, Washington, on December 7, 2020. Carol Hummel alleges that she fell in the parking lot and suffered injuries as a result of US Bank’s failure to maintain its premises in a reasonably safe condition.
Defendants U.S. Bancorp and U.S. Bank National Association (together, “US Bank”) filed a motion to exclude the testimony of Plaintiff Carol Hummel’s expert, Tom Baird.
Safety Expert Witness
Tom Baird is a Certified Forensic Consultant, Certified Walkway Safety Auditor, and Certified Floor Safety Technician. He serves on the National Floor Safety Institute’s Committee on the Identification and Elimination of Interior and Exterior Trip Hazards on Walking Surfaces, Stairs, Steps, and Ramps.
US Bank asserted that Baird’s testimony should be excluded because (1) his methodology is not sufficiently reliable, as it does not rely on “scientific, technical, or other specialized knowledge,” and (2) his testimony is not relevant and therefore would not assist the trier of fact.
1.Baird’s testimony is sufficiently reliable
Baird submitted a preliminary opinion report, which constitutes his sole expert report. The report includes exhibits such as photographs of Hummel’s injuries, photographs and Google Maps images of the US Bank location where the incident occurred, and photographs and a slope measurement obtained during a site visit.
US Bank contended that Baird’s methodology is unreliable because it is not grounded in science or technical data and is instead backward-looking and conclusory, failing to establish a causal basis or connection.
The Court disagreed. Baird’s credentials and experience demonstrate that he is qualified to offer the nine challenged opinions. In forming his opinions, Baird relied on multiple sources, including an interview with Ms. Hummel, a review of photographs of her injuries and the incident location, and a site inspection conducted by one of his associates on September 8, 2023. The Court found that reliability in this matter depended heavily on Baird’s specialized knowledge and experience rather than strictly scientific or technical data.
2. Baird’s testimony is relevant
The parties also disputed whether Baird’s testimony would assist the trier of fact in understanding the evidence or determining a fact in issue.
The Court concluded that the knowledge underlying Baird’s expert report bears a valid connection to the issues in the case and logically advances a material aspect of the dispute. It rejected US Bank’s argument that the testimony would “muddle the issues at trial” or “mislead the trier of fact.” Because the Court itself is the trier of fact, it determined that it could appropriately evaluate and weigh Baird’s opinions.
3. Baird’s New Declaration violates Rule 26(a)(2)(B)
US Bank argued that the Court should reject Baird’s new declaration, which Hummel included with her response to US Bank’s motion, because it violated Federal Rule of Civil Procedure 26(a)(2) by “introducing additional factual assertions, new methodologies, and additional training and experience not in Baird’s original report.”
The deadline for expert disclosures was October 9, 2024. The Court held that Hummel may not supplement Baird’s report through a new declaration filed after the disclosure deadline.
Accordingly, the Court strictly limited Baird’s testimony to the nine opinions set forth in his expert report and the previously disclosed supporting facts. He may not offer additional or clarified opinions beyond those properly disclosed.
Held
The Court denied US Bank’s motion to exclude the testimony of Tom Baird, but limited that testimony to the opinions and facts set forth in Baird’s preliminary opinion report.
Key Takeaway
An expert opinion is relevant “if the knowledge underlying it has a valid connection to the pertinent inquiry.” Here, Baird’s specialized knowledge and experience were sufficiently connected to the facts of the case to assist the trier of fact.
This case arises from a skiing accident that occurred at Mountain Creek’s ski resort (“the Resort”). On February 21, 2021, Pierino Perciballi and his sixteen-year-old son Matteo Perciballi chose to ski down the Matchmaker trail, an intermediate difficulty terrain park course contained within the Resort. The Matchmaker trail is adjacent to the Resort’s “learning area.”
Mountain Creek uses blue, mesh fencing to separate Matchmaker trail from the learning area. In his descent down Matchmaker trail, Perciballi collided with this blue fencing, tangling his legs and violently falling to the ground. This collision caused him to sustain significant injuries, requiring four days of hospitalization and leaving him with an ongoing disability.
Plaintiffs filed this case on February 17, 2023, alleging two causes of action: (1) negligent management and design of the Resort resulting in Mr. Perciballi’s injuries, and (2) loss of consortium on behalf of his wife Brigida R. Perciballi.
Defendants filed a motion to preclude Plaintiffs’ expert witness, Richard Penniman.
Ski Safety Expert Witness
Richard C. Penniman has been a consultant to the ski industry since 1983, and has been qualified as an expert on, inter alia, slope design, snowmaking and impact mitigation in numerous state and federal courts across the United States. He is a member of numerous ski organizations and has lectured extensively on the topic of ski safety. Penniman has served as an Adjunct Instructor at Sierra Nevada College where he taught Ski Area Mountain Operations and Safety for nine (9) years. Penniman has also published numerous peer-reviewed articles on ski safety
A. Penniman’s unannounced inspection of the Mountain Creek Resort does not justify barring his testimony
Mountain Creek’s first argument against the admissibility of Penniman’s decision does not challenge the sufficiency or applicability of his expertise; rather, it asked the Court to exclude Penniman’s opinion as a sanction for failing to follow Fed. R. Civ. P. 34(a)(2).
In his deposition, Penniman admitted to taking an unannounced trip to the Resort in March 2023, where he conducted an examination of the Resort’s grounds to assess the site of the accident and the Resort’s safety procedures in general.
When determining whether to impose a discovery sanction, the movant must first show that there has been a violation of the rules of discovery or the orders of the Court. Plaintiffs argued that there was no need for Penniman to get special permission from Mountain Creek to investigate a publicly accessible location, even if that location was owned by Mountain Creek.
The Court held that where the premises are open to the public and the inspecting party has permission to enter (and does not deviate from the parameters of the permission), parties are not required to seek approval prior to inspection under Rule 34, unless the inspection poses a greater, articulable danger or burden to the business, employees, or other visitors than is expected of a typical visitor.
Applying this rule, Penniman acted in almost every way as an ordinary skier. Even if Penniman’s inspection was a discovery violation, Mountain Creek did not sufficiently argue that exclusion was warranted. Though Mountain Creek claims it is “severely prejudiced” by the unannounced inspection, the only prejudice it cited is that it was “not present to observe the inspection,” or able “to document the conditions observed or observable on that date.”
B. The Penniman Report is sufficiently reliable to assist the jury and will not be excluded
Mountain Creek’s second argument for precluding Penniman’s testimony and report from the jury is that he lacks a reliable foundation for his opinion. Mountain Creek sought to exclude the following topics from Penniman’s opinion: (1) the “use of blue fencing” in the skiing industry; (2) the role, if any, shadows played in causing the accident; (3) how most North American ski resorts organize their ski trails; and (4) whether the “progression area” used to train new skiers is a hazard when placed next to a trail for more experienced skiers.
1. Penniman is permitted to testify to the relative advantages of fence coloring at different ski resorts
In his expert report, Penniman discussed the significance of fencing colors on the safety of skiing trails. According to Penniman, “blue fabric fencing such as that with which Mr. Perciballi became entangled can be very difficult to discern from shadows on the snow surface later in the day,” and for that reason the industry standard is that “any fencing, hazard marking or safety signs be brightly colored and highly visible so as to attract attention.”
However, Mountain Creek believed that this testimony lacked “factual evidence from the record in this case,” and is instead “based solely on his personal experience and limited discussions with ski patrollers.”
The Court disagreed. Penniman’s report and testimony contain sufficient foundation. It is uncontested that: (1) Mountain Creek used blue fencing at the time of the accident; (2) Plaintiffs’ accident happened in the afternoon; (3) Penniman made an inspection of the site of the accident and observed the shadow cover of the area in the afternoon; (4) at least some ski resorts in North America use brightly-colored fencing; and (5) Penniman claimed, in his professional experience, use of brightly-colored fencing is standard. This is a sufficient factual foundation whereby a reasonable jury could find that such a standard exists, should they credit Penniman’s testimony.
2. Penniman may not testify that the shadows ’caused’ Plaintiffs’ accident
The Penniman Report also assesses the role that shadows play in terms of hazardous course conditions while skiing, both in general and in how it contributed to Plaintiffs’ accident in particular.
Mountain Creek challenged the admissibility of these claims on two grounds. First, it argued that Penniman improperly opined on the cause of an accident he was not present to witness and of which has no personal knowledge. Second, Mountain Creek interpreted Penniman’s opinion as contradicting the fact witnesses in this case without cause and believed the contradiction is severe enough to warrant precluding his testimony.
Mountain Creek specifically objected to a line in the Penniman Report claiming “the shadows appear to have caused Mr. Perciballi not to discern the difference between the long tree and pole shadows across his path and the blue fence.” In making this conclusion, Penniman did not quote Perciballi or his son, and by his own testimony has not personally spoken to either fact witness. The Court held that Penniman’s inspection of the site on a different day, without personally witnessing or reviewing the accident, is not sufficient personal knowledge to testify about its cause.
To the extent Mountain Creek challenged the admissibility of any opinion offered by Penniman pertaining to shadows on the ski track, the Court found this opinion admissible. Perciballi may believe the lack of visibility was caused by snow cover, rather than shadows, but this is consistent with the Penniman Report which states that shadows and snow make blue mesh fencing less visible.
3. Testimony about an alleged generally-applicable standard for ski course design is admissible, even when based on personal experience
Finally, Mountain Creek objected to the sections of Penniman’s report and testimony that claimed the “standard custom and best practice” of ski resorts is to have “learning areas . . . separated geographically from the other trails,” to avoid conflict with other skiers.
However, Mountain Creek did not provide a legal basis for its assertion that Penniman must have a “written . . . industry standard,” to support his opinion that the placement of the learning area at the Mountain Creek resort was not best practice.
Plaintiffs argued that Penniman is not testifying that Mountain Creek failed by not living up to his personal standard. Instead, they contended he is testifying that there is an unwritten industry standard and—as an expert—he is in a position to know it. To support their interpretation of Penniman’s opinion, Plaintiffs offered several surveys and reports on the safety protocols of ski resorts authored by Penniman, most notably The California Mountain Resort Safety Report: Survey Methodology and Scoring Criteria (the “California Mountain Report”), as evidence of his knowledge of ski safety standards. For his part, Penniman also testified in his deposition about this study and the research he performed for that study alongside his personal observation of the practices at “over 300 ski areas in the U.S.,” which formed the basis for his opinion that it is an industry standard for resorts to separate learning areas “geographically.”
This may be a “shallow basis as to any industry standard,” as Mountain Creek says, but it is nonetheless sufficient for the “liberal policy of admissibility,” for expert opinions.
C. Experience as a professional ski instructor and ski resort safety consultant are sufficient to testify as an expert
Mountain Creek also challenged Penniman’s qualifications to give his opinion on how skiers typically act, and how they navigate a trail because he is “not trained in human factors, human behavior, biomechanics, engineering, or psychology.”
Mountain Creek’s assertion that Penniman’s decades of experience as a trainer, ski patrol member, and ski trail safety designer “does not constitute superior knowledge, education, experience or skill on the subject matter of skier’s behavior,” to a jury who may have never skied before, because he does not have an unrelated degree in “human factors, human behavior, biomechanics, engineering, or psychology,” is not credible.
The Court found that Penniman is sufficiently qualified to serve as an expert on skier behavior and expectations.
Held
The Court granted in part and denied in part Mountain Creek’s motion to preclude Richard Penniman’s testimony.
Key Takeaway
An expert may testify as to his or her opinion on the ultimate cause of an injury, even “in the absence of complete information,” so long as the expert has sufficient direct knowledge to ground his or her opinion.
But when an expert opinion “is not based on any direct or circumstantial evidence,” it is inadmissible conjecture, even if the safety measures the expert advocates for would have made the injury “less likely.”
Plaintiff William A. White (“White”), a federal inmate, initiated this action alleging nine distinct claims against the United States of America (“United States”) and the Federal Bureau of Prisons (“BOP”) (collectively, the “Federal Defendants”), and two distinct claims against BOP inmate Robert Kenneth Decker (“Decker”).
Dr. Richard M. Samuels conducted an independent psychological examination of White. The Federal Defendants filed a motion to strike Dr. Samuels’ report.
Psychology Expert Witness
Richard M. Samuels has nearly fifty years of medical experience. He has conducted 2,500 psychological evaluations, treated thousands of patients, and testified in several states.
He is licensed in Arizona and New Jersey and is a fellow of the American Psychological Association and two of its divisions.
The Federal Defendants argued that Samuels is not qualified to be an expert, the report is outdated, and this report is neither helpful nor based on sufficient facts related to the issues in this case.
As to the first step, the Court found the Federal Defendants’ argument unconvincing. Samuels is a trained psychologist who had been licensed at one time in two different states, giving him general expertise regarding the issue of standard of care for White’s mental health needs. He need not be a specialist in Indiana or hold active registration as a psychologist to render his report useful.
Moreover, Samuels’ medical opinion is not based on ‘junk science’, but almost fifty years of medical experience. The Federal Defendants pointed out that Samuels is not registered with the American Board of Psychology, however, both the Middle District of Florida and Middle District of Pennsylvania accepted Samuels’ testimony and ruled him qualified to provide an expert opinion.
Due to his specific knowledge of the circumstances and experience in the field, Samuels’ testimony and report will assist the Court in understanding the evidence and in determining the facts at issue in this case.
Held
The Court denied the Federal Defendants’ motion to strike Dr. Richard Samuels’ report.
Key Takeaway
Anyone with relevant expertise enabling him to offer responsible opinion testimony helpful to judge or jury may qualify as an expert witness. In this case, Samuels has established that he has specialized knowledge as required by Rule 702.
