This litigation arises from Plaintiff Raymond Flanks’ (“Plaintiff”) wrongful conviction for first-degree murder in 1985. In particular, Plaintiff alleged that the Orleans Parish District Attorney’s Office (“OPDA”) secured his wrongful conviction in violation of his constitutional rights by withholding material exculpatory evidence.
Laurie Levenson is a law professor who was retained by Plaintiff to testify about her evaluation of OPDA’s Brady policies, practices, and customs.
However, Defendant Jason Williams, in his official capacity as Orleans Parish District Attorney, contended that Levenson provided an untimely supplemental report on December 17, 2025, and Levenson’s testimony should be limited to her original report.
Law And Legal Expert Witness
Laurie L. Levenson joined the Loyola faculty in 1989 and served as Loyola’s Associate Dean for Academic Affairs from 1996 to 1999. In addition, she has been a visiting professor at UCLA School of Law and USC Law School, and a D&L Straus distinguished visiting professor at Pepperdine School of Law. Moreover, in 2019, she co-founded (with Judge Sandra Klein) Girl Scout Troop 1085, a troop for girls experiencing homelessness. At Loyola, Professor Levenson is the Founding Director of the Loyola Project for the Innocent, the Loyola Center for Ethical Advocacy, and the Fidler Institute on Criminal Justice, and Senior Faculty for Loyola’s Journalist Law School.
While in law school, Laurie Levenson was chief articles editor of the UCLA Law Review. After graduation, she served as law clerk to the Honorable James Hunter III of the United States Court of Appeals for the Third Circuit. In 1981, she joined the United States Attorney’s Office for the Central District of California in Los Angeles, where she practiced as a trial and appellate lawyer and served as Assistant Chief of the Criminal Division.
Rule 26(e)(2) permits supplementation of an expert report, but “any additions or changes to [the] information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.” Under Rule 26(a)(3), “when the Scheduling Order is silent, supplemental reports are generally due 30-days pretrial.” The scheduling order in this case did not provide a deadline for supplemental reports.
Review of the updated expert report of Levenson confirms that this report is a true supplement. Levenson reviewed recent deposition testimony and discusses how that testimony impacts her prior opinions.
Specifically, Levenson cited testimony supporting the opinion in her original report that OPDA’s practices and customs lead to Brady violations because OPDA: (1) failed to disclose grand jury transcripts with impeaching and exculpatory information; (2) did not have a written Brady policy; (3) had insufficient training on Brady compliance for prosecutors; (4) created a prosecutorial culture that discounted the importance of complying with Brady; and (5) failed to acknowledge its problems with Brady violations.
Analysis
All of these opinions were found in Levenson’s original expert report, and the supplemental report merely cites deposition testimony that supports these opinions. Nevertheless, even though the report is a true supplement, it is still untimely because it was disclosed 26 days before trial, four days after the deadline set in Rule 26.
Nevertheless, the Court found that the late disclosure is harmless. Since Levenson will be permitted to remain in the courtroom to observe the trial testimony and offer an opinion based on the testimony as it evolves before the jury, the Court found that the four day delay in the supplemental disclosure, which merely supplements her opinion based on recent deposition testimony, is harmless.
Held
The Court denied Williams’ motion to strike the supplemental expert report of Laurie Levenson.
Key Takeaway
In the supplemental report, Levenson merely reviewed recent deposition testimony and discusses portions of the testimony that relate to the opinions set forth in her original report. This is similar to the role an expert plays at trial.
Please refer to the blog previously published about this case:
This case arises from an accident involving a Robinson R44 II helicopter, registration N442VB (“Helicopter”), that occurred on the evening of December 30, 2021, in Levy County, Florida. The Helicopter was being flown at night by the owner-pilot, Ronald Hicks (“Pilot Hicks”), from a local friend’s residence to his private property. At the time of the accident, Pilot Hicks had less than ten hours of night flight experience in helicopters and was not certified under Instrument Flight Rules (“IFR”). Mr. Hicks, Shelly Kate Hicks, and their two children sustained fatal injuries.
Plaintiffs filed a Daubert motion to exclude and/or limit the testimony of Defendant’s accident reconstruction expert Douglas Stimpson.
Accident Reconstruction Expert Witness
Douglas Earl Stimpson has been continually employed in the aviation industry for over 54 years and has participated in over 3,500 aviation accident reconstructions.
He has been a Commercial Pilot and Flight Instructor for over five decades and currently holds FAA certifications as a Commercial Pilot Rotorcraft Helicopter, Certified Flight Instructor Helicopter, Certified Flight Instructor Instruments, and Advanced Ground Instructor.
First, Plaintiffs argued that Stimpson opined regarding “meteorology, metallurgy, and human factors issues” despite being unqualified to do so.
This Court has reviewed Stimpson’s expert report and found that he is qualified as an accident reconstruction expert and may opine from that perspective. He may also rely upon the opinions of Defendant’s other experts when forming his own accident reconstruction opinions, provided he explains he is doing so. However, Stimpson is not qualified as a piloting or meteorological expert. Therefore, he may not offer new piloting or meteorological opinions or offer Defendant’s other experts’ opinions as his own. If Stimpson’s testimony begins to venture beyond these boundaries, this Court is prepared to rein it in immediately.
Second, the Plaintiffs argued that Stimpson’s methodology was unreliable. Plaintiffs take issue with Stimpson’s reliance on flight path ADS-B data for his analysis and the fact that his opinion purportedly conflicts with at least one eyewitness’ testimony regarding the crash. Therefore, while Plaintiffs are free to cross-examine Stimpson regarding perceived deficiencies in his data or conclusions, they have not demonstrated exclusion is warranted.
Third, Plaintiffs argued that Stimpson’s opinions are cumulative because they overlap with Defendant’s other experts. As explained above, the Court found that Stimpson is a qualified accident reconstruction expert and may opine from that unique perspective. To the extent Stimpson is offering the accident reconstruction opinions in his report, his opinions are not cumulative.
Finally, Plaintiffs requested that Stimpson be bound to the opinions contained within his expert report. This Court absolutely agreed that no expert may offer opinions not within their expert report.
Held
The Court granted in part Plaintiffs’ Daubert motion to exclude and/or limit the testimony of Douglas Stimpson.
Key Takeaway
Whether an expert selected the best data set to use is a question for the jury, not the judge. 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.
Case Details:
Case Caption:
Law V. Avco Corporation
Docket Number:
1:24cv3
Court Name:
United States District Court for the Northern District of Florida, Gainesville Division
This case arises from a motor vehicle collision between Plaintiff Marie Shante Box and Defendant William Causey in May 2023. Following the collision, Box filed suit against Causey, CTS National Corporation (Causey’s employer), and Old Republic Insurance Company (CTS’s insurer). She sought compensatory damages for her injuries, punitive damages, and attorney’s fees. To support her compensatory damages claims, Box retained Dr. Thomas Pontinen as an expert witness. Pontinen’s expert report opined that Box’s future medical and life care will cost $822,2218.55.
The Defendants sought to exclude Pontinen’s opinions on the grounds that he is not qualified and that his methodology is not reliable.
Anesthesiology Expert Witness
Dr. Thomas Pontinen is a double-board certified anesthesiologist and interventional pain medicine specialist and is certified as a Life Care Planner.
He regularly provides life care planning services through a company called LCP Pro, LLC. Pontinen has published multiple journal articles, written textbook chapters, and has presented at international conferences in the fields of surgery, anesthesiology, and pain medicine.
The Defendants sought to exclude Pontinen’s opinions because his life care plan included an estimate of Box’s life expectancy, which they argued Pontinen was not qualified to calculate.
The Court held that Pontinen is qualified to opine on Box’s life expectancy, as one component of Box’s life care plan. As part of the life care planning calculations, Pontinen estimated that Box would live an additional forty years.
His life expectancy estimate was based on the Center for Disease Control’s (“CDC”) 2023 National Vital Statistics Report on life expectancy for the U.S. population.
Pontinen is a certified life care planner who provides services through a life care planning company, which regularly provides life expectancy estimates as part of its process. Other courts have found certified life care planners qualified to rely on their life expectancy calculations as part of creating a life care plan.
And the Defendants did not point to—and the Court is not aware of—case law that requires an expert witness to be a life expectancy expert or economist in order to rely on a life expectancy estimate.
2. Reliability
The Defendants argued that Pontinen (1) did not collaborate with Box’s primary treating physician and (2) his pricing model relied on proprietary data.
The Court held that Pontinen’s methodology is reliable forDaubert purposes. There is no one required methodology in the life care planning industry. Pontinen explains that his methodology (and LCP Pro’s) is based on “peer-reviewed, published methodologies and Standards of Practice within the life care planning associations,” including the American Academy of Physician Life Care Planners, International Academy of Life Care Planners, and American Association of Nurse Life Care Planners.
Regarding the relationship between Pontinen and Box’s primary treating physician, the Court found that the lack of formal collaboration between the two is not sufficient to render Pontinen’s methodology unreliable.
While the record in this case indicated that collaboration with physicians is recommended within the life care planning industry, the record did not support the notion that a life care planner’s failure to collaborate renders his or her methodology unreliable
Even if the Defendants could identify some document that expressly requires collaboration with every treating physician, that would still be insufficient.
The Court is not persuaded that LCP Pro’s database is unreliable or unverifiable within the industry nor that Pontinen’s use of a proprietary database renders his methodology unreliable for Daubert purposes. Pontinen relied on Box’s actual bills or provider estimates where possible and costing databases, such as those by the Practice Management Information Corporation and LCP Pro, where not. He provided nineteen cost estimates based on individual future needs. Three of those estimates were derived from LCP Pro’s database. LCP Pro’s database contains data from “more than 2,000 cases” and is “based on actual provider charges and actual provider estimates for injections and surgeries.”
Held
The Court denied the Defendants’ motion to exclude the testimony of Thomas Pontinen.
Key Takeaway:
Pontinen’s methodology for employing pricing databases, including LCP Pro’s proprietary database, is consistent with standards in the life care planning industry and Daubert.
Any further disagreement regarding the accuracy of Pontinen’s individual cost estimates speaks to the weight of the testimony rather than its admissibility, as competing expert witnesses often supply different cost estimates from one another.
Plaintiff Misty Blanchette Porter was previously employed as a physician in the Reproductive Endocrinology and Infertility (“REI”) Division within Dartmouth Health’s Department of Obstetrics and Gynecology (“OB/GYN”).
After Dartmouth Health made the decision to shut down the REI Division entirely and to terminate all three physicians employed therein—including Porter—Porter filed suit against Dartmouth Health citing disability discrimination.
Dartmouth Health argued that the testimony of Porter’s damages expert, Dr. Robert L. Bancroft, should have been excluded due to untimely disclosure under Rule 26.
Economics Expert Witness
Robert L. Bancroft holds a bachelor’s degree in economics from the University of Vermont (“UVM”); a Master of Science in agricultural economics from UVM; and a Ph.D. in agricultural economics from Purdue University.
From June 1979 until August 1981, Bancroft worked for the United States Department of Agriculture to develop an econometric forecasting model to forecast farmers’ participation in certain government programs and to provide testimony and research to the U.S. House of Representatives. Next, Bancroft began work as an assistant professor in the Department of Agriculture and Resource Economics—later renamed the Department of Community Development and Applied Economics—at the University of Vermont in August 1981. Bancroft continued as an assistant professor of economics until 1991, when he became an adjunct professor. He worked as an adjunct professor of economics until 1996.
Dartmouth Health contended that the Court erred by admitting testimony and exhibits offered by Porter’s expert damages witness, Bancroft, because Porter failed to timely disclose several of his expert opinions under Rule 26.
The Court found that the timing of the disclosure of Bancroft’s March 19, 2025, supplemental report did not warrant a new trial. The March 2025 supplemental report was a direct response to defense counsel’s cross-examination of Bancroft at a hearing on Dartmouth Health’s motion to exclude Bancroft from testifying as an expert witness at trial.
Cross-examination elicited that Bancroft was unaware of certain information relevant to his calculations. Bancroft subsequently updated his report on March 19 to incorporate this new information. Dartmouth Health plainly knew this information before Bancroft issued his March 19 report, as defense counsel raised the issue at the evidentiary hearing.
Moreover, Bancroft did not change the substance of his opinion. He used the same methodology in his March supplemental report as in his prior reports, changing only the inputs to produce updated damages calculations.
The Court did not share Defendants’ view that Bancroft issued his corrective March 2025 report because his testimony at the March 12 evidentiary hearing revealed that his August 2024 report “had not included key facts and assumptions . . . such as Porter’s promotion to full professor in July 2023 and her most recent earnings from UVMMC at a higher rate of pay than what Bancroft had projected.”
Rule 37
Even if the disclosures were untimely, admitting Bancroft’s testimony was not error because the disclosures were substantially justified or harmless under Rule 37.
The first factor—the willfulness of the non-compliance regarding the March 2025 report and the reason for the noncompliance—did not weigh definitively in either party’s favor. Porter knew well before March 2025 that she had received a $7,698 tuition credit for her son’s undergraduate education at UVM in 2019, and Bancroft could have included that information in his August 2024 report. On the other hand, Dartmouth Health knew that it had approved salary freezes in 2020 and 2021, and Dartmouth Health did not allege that Porter or Porter’s expert had that information until March 2025.
The efficacy of lesser sanctions and the possibility of a continuance weigh against excluding Bancroft’s testimony. Dartmouth Health’s proposed alternative—introducing its own expert witness to rebut Bancroft’s supplemental report—was simply not feasible only four days before a three-week trial.
The duration of noncompliance factor was inconclusive. Although Porter was aware of some information that impacted her expert’s damages calculations well in advance of the March 2025 report, other information was only in the possession, custody, or control of Dartmouth Health until the March evidentiary hearing. Bancroft submitted his updated report one week after the evidentiary hearing.
The Court is unaware of any previous warning to Porter that an untimely supplemental expert report could result in exclusion of the expert witness.
Moreover, Dartmouth Health already had a significant amount of the updated information Bancroft relied on for his March 2025 supplemental report. It is difficult to conceive how admitting the March 2025 report, or Bancroft’s testimony consistent with that report, prejudiced Dartmouth Health given that the report estimated substantially lower damages figures than any of Bancroft’s previous reports.
Held
The Court held that the relevant factors weighed against excluding Robert Bancroft’s testimony.
Key Takeaway:
Without Bancroft’s testimony, Porter would have been severely disadvantaged in quantifying her claimed economic damages. Such a sanction would have been disproportionate to the alleged noncompliance given that the late disclosure had a reasonable basis; Bancroft’s methodology did not change from one report to the next, and Bancroft’s final report substantially reduced Porter’s estimated damages.
Case Details:
Case Caption:
Blanchette Porter V. Dartmouth Hitchcock Medical Center
This case involves alleged violations of the Fair Credit Reporting Act. The Plaintiff, Fabian Huizar, claims that Experian Information Solutions repeatedly reported inaccurate information on his credit report relating to a car loan that was the subject of a judgment rendered in state court. Huizar hired experts, Douglas Hollon and Evan Hendricks to help him prove his case, and Experian filed a motion to exclude or limit their testimony.
Consumer Credit Expert Witness
Douglas A. Hollon holds a Bachelor of Science in Business Finance. He has received FCRA certifications from the Consumer Data Industry Association, and he has earned additional certifications.
He has worked in the consumer finance reporting industry since 2005, when he began working for Experian. His work for Experian spanned 14 years from 2005 through 2019 in the National Consumer Assistance Center—Experian’s main dispute processing center—where he helped consumers “resolve their issues” and “[p]rovid[ed] leadership advice to current supervisors.”
He handled “escalated credit report disputes” submitted on consumers’ behalf by attorneys and government entities. He has also received “specialized training involving fraud (identity theft) disputes” and testified on Experian’s behalf as a Rule 30(b)(6) witness. In addition to his experience at Experian, he has studied “regulatory agency publications, case law, deposition transcripts, company manuals or publications, and other related documents,” contributing to his “extensive knowledge of other Consumer Reporting Agencies’ (CRAs) and Data Furnishers’ credit dispute operations.” Since 2020, Hollon has been the owner of Credit Experts of North Texas, LLC. Over the course of his career, he has “assisted tens of thousands of customers.”
Evan D. Hendricks has worked in the field of data privacy and credit reporting for over forty years. He was the Editor and Publisher of Privacy Times from 1981-2013.
He has consulted on FCRA cases for over 30 years and has served as an expert witness well over 100 times. Hendricks has testified before Congress and the Federal Trade Commission dozens of times on issues relating to credit reporting and the importance of credit scores. He is the author of a book on how credit scores work and credit reports work.
First, Experian stated that Hollon is unqualified to provide his opinion on the correct interpretation of the Tippecanoe Circuit Court orders which are the subject of this litigation. The Court held that Hollon’s decade-plus experience working on credit reporting at Experian qualifies him to opine on how Experian would have read and understood the legal orders as well as how reporting should have been conducted following a review of the orders.
Experian next argued that Hollon is unqualified to opine on whether Experian’s processes and procedures resulted in inaccurate, damaging information remaining in Huizar’s Experian file. Because the jury can assess Huizar’s own damages testimony and Hollon adds no specialized knowledge or experience related to damages, he will not be allowed to provide expert testimony on Huizar’s damages, emotional or otherwise. Accordingly, any statements concerning damages, emotional or otherwise, included in Hollon’s report will not be considered by the Court.
Experian’s motion to exclude also attacked Hollon’s methodology and argued that the Hollon Report “totally failed to outline any reliable principles or methods.” However, Hollon drew on his decade of experience working on credit reporting at Experian to review the materials in this case and form an expert opinion on Experian’s alleged actions. Although his methodology was not highly technical, the Court considered it reliable for forming an expert opinion.
B. Evan Hendricks
Experian argued that Hendricks is unqualified to provide expert opinion on several topics for which he opined. First, Experian argued that, like Hollon, Hendricks was unqualified to provide his opinion regarding how Experian should have interpreted the Tippecanoe Circuit Court orders.
However, the Court held that Hendricks’ extensive knowledge of credit reporting and credit reporting agencies will be helpful to the trier of fact. And while Experian is correct that Hendricks does not have a specialized background in law, he is qualified to opine as to how Experian, a consumer reporting agency, should have viewed the legal orders at issue in this case.
Hendricks’ experience and expertise also qualify him to provide his opinion on how Experian’s reporting would have impacted Huizar. In 2003, Hendricks provided testimony to the House Financial Services Subcommittee on Financial Institutions & Consumer Credit regarding “The Role of FCRA in the Credit Granting Process.”
While Hendricks will be allowed to offer his opinion on how creditors would have viewed Experian’s reporting, he will be prohibited from offering opinions on any emotional or psychological harm suffered by Huizar.
As for the reliability of Hendricks’ methodology, the Court found Hendricks’ methodology of applying his experience to the facts and evidence reliable. However, Hendricks was not permitted to provide testimony about prior cases, administrative actions, and consent decrees because an information dump from long ago cases will more likely confuse the jury than provide helpful information relevant to this case.
Finally, Experian argued that Hendricks should be precluded from testifying about Experian’s knowledge, motivations, intentions, objective state of mind, and subjective beliefs. As the parties agreed that Hendricks should not testify as to the CRAs’ state of mind, Hendricks will not be permitted to provide testimony on that topic.
Held
The Court granted in part and denied in part Experian’s motion to exclude or limit the testimony of Plaintiff’s expert witnesses, Douglas Hollon and Evan Hendricks.
Key Takeaway:
When a qualified expert uses their expertise and experience to arrive at an opinion based on an assumed set of relevant facts, that is a reliable methodology. An expert’s reliance upon his or her experience to assess the relevant documents has been repeatedly viewed as a reliable methodology in various settings.
Plaintiff Leflore County Board of Supervisors filed suit against Meritor over a state-approved waste disposal that occurred almost two decades ago.
In 2006, Meritor’s predecessor, ArvinMeritor, sent some waste to Plaintiff’s landfill (the “Landfill”) as part of a state-approved cleanup of the Moose Lodge Road Disposal Area (“MLRDA”). And now, almost two decades later, Plaintiff claimed that the MLDRA waste it received as part of that state-approved cleanup was wrongfully characterized as non-hazardous.
Plaintiff held Meritor responsible for all costs necessitated by the waste disposal at the landfill.
Defendant Meritor, Inc. filed a motion to strike the second supplemental report of Plaintiff’s expert D. Scott Simonton.
Engineering Expert Witness
David Scott Simonton is a Registered Professional Engineer with over thirty (30) years of professional experience in State environmental and public health protection regulatory agencies, private consulting and academia.
The Plaintiff initially submitted Simonton’s expert report on November 25, 2024, which was the deadline for the Plaintiff’s expert designation imposed by the original Case Management Order. Notably, this initial report consisted of a cost estimate of $170,382.50 for “waste characterization,” based on the Plaintiff’s belief that Meritor had disposed of hazardous wastes in a certain limited area of the Leflore County municipal landfill.
Subsequently, on January 29, 2025, after Simonton’s initial expert report was produced, the parties deposed Leflore County’s landfill operator, Waste Connections, whose representative testified that it had no way to determine where the allegedly hazardous waste had been disposed of within the landfill. This testimony, in turn, formed the alleged basis for the opinion offered in Simonton’s second supplemental report.
Following the Waste Connections deposition, Simonton submitted his first supplemental report on April 15, 2025, and later, his rebuttal report on June 5, 2025. However, neither report included a new or revised cost estimate that accounted for Waste Connections’ position that the location of the contaminated soils could not be determined. Thereafter, Meritor deposed Simonton on June 30, 2025, and the discovery period closed on August 8, 2025.
Finally, on August 29, 2025, the Plaintiff submitted Simonton’s second supplemental report—the subject of the present motion—which included a “Remedial Investigation cost estimate” totaling $3,163,902.50. This report sought to address the alleged uncertainty regarding the location of the contaminated soil within the Leflore County municipal landfill and justified the need for an expanded investigation involving increased sampling.
Analysis
The Plaintiff’s expert designation deadline was November 25, 2024, and any supplement to Simonton’s expert report was due no later than the discovery deadline of August 08, 2025.
I. Whether the second supplemental report contains new opinions
The Plaintiff argued that the estimate in the second supplemental report “was merely a recalculation of [Simonton’s] mathematical formulas based on new information, i.e., Meritor’s lack of knowledge of where it caused the hazardous wastes to be dumped.” However, Meritor contended that the supplemental report introduced “an entirely new theory of damages” that had not been previously disclosed and lacked good cause. The Court agreed.
Simonton’s second supplemental report presented a Remedial Investigation (“RI”) cost estimate based on entirely new criteria and considerations—all known to the Plaintiff as early as January 2025 but not included in the initial or previously supplemented reports.
Regardless of whether the earlier reports contained opinions about the need for an RI (a point the parties dispute), the second supplemental report offered an entirely new cost estimate based on Waste Connections’ opinion that the location of the contaminated soils at the municipal landfill could not be determined. This stood in contrast to the prior assumption that Meritor had disposed of hazardous wastes only in a certain limited area. As a result, the Plaintiff’s attempt to introduce new opinions through an untimely supplement was deemed improper.
II. Whether the new opinions are substantially justified or harmless
The Plaintiff offered no explanation for the failure to supplement Simonton’s opinion at any point during the seven-month period after Waste Connections’ deposition and before the expiration of the discovery deadline. This delay certainly mitigates against the alleged importance of the opinion. Despite the Plaintiff’s arguments to the contrary, the prejudice to Meritor is clear: the second supplemental opinion is neither a minor amendment nor a recalculation. The discovery period is closed, and the motions deadline has passed. Meritor has had no opportunity to seek discovery regarding this opinion or have its own expert review and respond in their report. Finally, to continue the trial setting and reopen discovery to mitigate the prejudice to Meritor would require the Court to ignore the Plaintiff’s failure to establish the first three factors.
The Court concluded the untimely disclosure of Simonton’s second supplemental report was not substantially justified or harmless.
Held
The Court granted Meritor’s motion to strike the second supplemental report of Plaintiff’s expert D. Scott Simonton.
Key Takeaway:
The second supplemental report of Simonton contained opinions markedly different from those set forth in the original, first supplemental, and rebuttal reports and was made beyond the permissible deadline for supplementing expert disclosures under Rule 26.
Case Details:
Case Caption:
Leflore County Board Of Supervisors V. Meritor, Inc. Et Al
Docket Number:
4:24cv33
Court Name:
United States District Court, Mississippi Northern
The present action stems from Plaintiff ML Products, Inc. (“ML Products”) and Defendants BillionTree Technology USA, Inc. (“BillionTree”) and Mountain Peak, Inc. (“Mountain Peak,” collectively, “Defendants”) competing for sales on Amazon.com where Defendants allegedly employed fraudulent tactics. Specifically, ML Products asserted claims of violations of the Lanham Act, false advertising, and unfair competition against Defendants.
On April 12, 2024, Professor Brett Hollenbeck, ML Products’ affirmative technical expert, produced an expert report on his analysis of “the tactics related to online reviews used by certain competitors of ML Products, including BillionTree and its [alleged] affiliates.”
Broadly, Hollenbeck opined that 22 of the 29 products sold by BillionTree and its alleged affiliates engaged in review hijacking—inappropriately linking a different product’s reviews to the given product on Amazon and misrepresenting the product as having more positive reviews; reviewers of nine of the products complained that the seller sent them emails requesting them to change negative reviews into positive ones in exchange for payment; and by manipulating and falsifying product ratings, BillionTree increased its visibility and sales on Amazon, misled customers, and lowered the visibility of its competitors, thereby harming ML Products.
Defendants filed a motion to exclude the testimony of Hollenbeck.
Marketing Expert Witness
Prof. Brett Hollenbeck is an Associate Professor of Marketing at the UCLA Anderson School of Management in Los Angeles, California. His educational background includes a Bachelor of Science in Economics and a Bachelor of Arts in Political Science, both from the George Washington University, a Masters in Economics from the University of Texas at Austin and a Ph.D. in Economics from the University of Texas at Austin.
Defendants argued that ML Products failed to disclose the facts and data—specifically, the Amazon information—considered by Hollenbeck in forming his opinion. Defendants further argued that ML Products’ failure to disclose warrants sanctions under Rule 37.
The Court did not find that ML Products failed to disclose the facts and data considered by Hollenbeck in forming his opinion. Although Defendants are correct that the Hollenbeck Report must lay out the factual bases for his opinions, the Hollenbeck Report provided the factual bases upon which he formed his opinions as he explored whether BillionTree and its alleged affiliates engaged in product rating manipulation to increase its sales and harm competitors like ML Products.
For instance, Hollenbeck opined that 22 of the 29 products sold by BillionTree and its alleged affiliates engaged in review hijacking; 9 of the products had reviews where customers were offered gift cards to change negative reviews into positive ones; and BillionTree and its alleged affiliates’ conduct increased their products ratings and hurt the sales of its competitors, including ML Products.
The Court is not convinced that ML Products’ disclosure prevented Defendants from conducting a meaningful deposition of Hollenbeck, as Defendants have had until August 20, 2025, to submit a rebuttal report and until September 3, 2025, to complete discovery, which is more than sufficient time.
The Court found that sanctions under Rule 37 is not warranted, as ML Products did not fail to disclose Hollenbeck as an expert witness nor the facts and data supporting his opinions in the Hollenbeck Report.
2.The Expert Report is Not Improper under FRE 703
Defendants argued that the Hollenbeck Report should be excluded because it relies on inadmissible hearsay and improperly attempts to establish the truth of its content.
However, the Court held that Hollenbeck may rely on hearsay as it is reasonably relied upon in the field of marketing academia. Typically, an academic expert in online marketplaces will review comment entries on marketplaces to identify how the products function. Further, Hollenbeck used the marketplace reviews and applied his expertise to form an independent judgment that BillionTree and its alleged affiliates were engaging in review hijacking, bribing customers to turn negative reviews into positive ones, and manipulating Amazon ratings to boost its sales and diminish competitors’ sales.
Moreover, the probative value of Hollenbeck’s opinion outweighs its prejudicial effect because it could help a juror to determine certain facts like whether review hijacking, bribing customers for better reviews, and manipulating ratings constitutes an unlawful, unfair, or fraudulent business act or practice.
3. The Expert Report Applies Reliable Methods
Defendants argued that the Hollenbeck Report should be excluded because it lacked analytical rigor, relied on incomplete data, and failed to account for alternative explanations.
Defendants asserted that, for example, the report did not account for other variables impacting a products’ ranking on Amazon, and that the Hollenbeck Report did not provide evidence supporting its assertion that repurposed reviews misled consumers and caused harm.
Hollenbeck reviewed product pages and analyzed 29 products. He further declared that he performed an analysis of the reviews and product pages downloaded by applying his skills and expertise from marketing academia.
The Court found that his understanding and expertise in the area coupled with the general accepted principle that alternative explanations involve weight, not admissibility, are sufficient to assuage Defendants’ concerns of unreliable methodology.
4. The Expert Report Attempts to Introduce Legal Opinions
Defendants argued that the Hollenbeck Report repeatedly referred to Defendants’ alleged conduct as illegal according to the Federal Trade Commission, which is an impermissible legal opinion.
The Court found that some of Hollenbeck’s opinions constituted improper expert opinions.
In paragraph 9 of his report, Hollenbeck described BillionTree and its alleged affiliates as partaking in review hijacking and opines that “this type of review hijacking is considered illegal by the Federal Trade Commission.” In paragraph 99 of his report, Hollenbeck opined that BillionTree and its alleged affiliates engaged in “harassment and paying for positive reviews which are considered illegal by the Federal Trade Commission.” Interpreting whether conduct constitutes a violation of law regulated by the Federal Trade Commission falls squarely within the Court’s province, as it involves conclusion of law.
Held
The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of Brett Hollenbeck.
Key Takeaway:
Expert witnesses may rely on inadmissible hearsay in forming their opinions, so long as it is of a type reasonably relied upon by experts in their field. Typically, an academic expert in online marketplaces will review comment entries on marketplaces to identify how the products function. In this case, Hollenbeck used the marketplace reviews and applied his expertise to form an independent judgment that BillionTree and its alleged affiliates were engaging in review hijacking.
Case Details:
Case Caption:
ML Products Inc. V. Billiontree Technology USA, Inc.
Docket Number:
2:23cv8626
Court Name:
United States District Court for the Central District of California
Plaintiffs Michael Sutherland and Comfy Materials LLC sued Defendant Wellshow Machining Parts, Inc. for copyright infringement and false advertising relating to Defendant Wellshow’s Amazon listings of its competing products.
Per the Amended Case Management and Scheduling Order, Plaintiffs disclosed one expert witness, Charleen Purdy, on March 14, 2025, who will “opine on Plaintiffs’ economic losses in connection with their claims brought against Defendant, and to prepare any rebuttal analysis and report related to any alleged damages incurred by Wellshow as to its tortious interference claim.”
In her report, Purdy disclosed that discovery was ongoing at the time of her expert report, and therefore, she could not form an opinion on damages due to the outstanding requested discovery. Specifically, Plaintiffs’ expert report indicated that she had only received incomplete and insufficient documents from Defendant on March 7, 2025, and requested a list of additional documentation from Defendant “in order to determine, if any, the economic loss suffered by the Plaintiffs” and Defendant. Plaintiffs’ expert report also reserved the right to supplement her report following full and complete discovery.
Therefore, Defendant, Wellshow Machining Parts, Inc., sought an order precluding Plaintiffs from offering undisclosed expert testimony and precluding Plaintiff Michael Sutherland, corporate representatives, or employees of Defendant Comfy Materials, LLC from providing expert testimony under Federal Rule of Evidence 702.
Accounting Expert Witness
Charleen E. Purdy is a principal at Perzel & Purdy Forensic CPA’s, LLC. She is licensed as a Certified Public Accountant (CPA), credentialed as a Certified Valuation Analyst (CVA), Master Analyst in Financial Forensics (MAFF), and trained in Collaborative Divorce. Her experience includes services in the areas of forensic accounting, damage claims, business valuations, economic loss analysis, money laundering, shareholder disputes, trust and estate litigation, Ponzi schemes, personal injury claims, litigation support, and expert witness services.
Plaintiffs conceded that its expert witness disclosure is noncompliant with Rule 26(a)(2)(B) and Federal Rule of Evidence 702. As such, Plaintiffs’ expert report has no “facts or data” under Rule 26(a)(2)(B)(i)-(ii) because she could not properly form an opinion. Nevertheless, to comply with the Amended CMSO, Plaintiff’s timely disclosed Purdy to meet “the requirements of Rule 26(a)(2)(B) to the extent possible.”
Here, the Court found that even if Purdy’s expert report is insufficient under Rule 26(a)(2)(B), Plaintiffs still have time to supplement Purdy’s expert report within a timely manner under Rule 26(e).
As for the timing of the supplement, Rule 26(e)(2) states that for a Rule 26(a)(2)(B) expert (i.e., a retained expert), “any additions or changes to this information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.” Rule 26(a)(3)(B) provided that “these disclosures must be made at least 30 days before trial.” The CMSO has set the trial on November 3, 2025, and directs the parties to “meet the pretrial disclosure requirements and deadlines in Fed. R. Civ. P. 26(a)(3).” Thus, the Plaintiffs still have until October 4, 2025, to supplement Purdy’s expert report.
Analysis
To begin with, the Court found that any Rule 26(a)(2)(B) violation in Purdy’s disclosure on March 14, 2025, was substantially justified. First, Defendant’s motion did not make any argument about potential prejudice or surprise. Nor could Defendant make such arguments since, following Plaintiff’s timely expert witness disclosure on March 14, 2025, Defendant had the opportunity to provide the documents requested by Purdy and/or depose her before the discovery cut-off on April 28, 2025.
Additionally, Plaintiffs’ failure to provide a sufficient disclosure was harmless under Rule 37 because (1) Defendant has been on notice as to the subject matter of Purdy’s testimony since the expert witness disclosure deadline, and (2) any prejudice resulting from Plaintiffs’ insufficient disclosure can be cured by a supplemental disclosure.
Held
The Court denied Defendant Wellshow’s motion in limine to preclude the testimony Plaintiff’s expert Charleen Purdy.
Key Takeaway:
Substantial justification exists if there is justification to a degree that could satisfy a reasonable person that parties differ as to whether the party was required to comply with the disclosure request.
The Court found any violation of Rule 26(a)(2)(B) in Charleen Purdy’s disclosure was substantially justified.
Case Details:
Case Caption:
Sutherland V. Wellshow Machining Parts, Inc. Et Al
Plaintiffs Diane Watts, Anthony Watts, and Adam Pizzitola (collectively, “Plaintiffs”) purchased car insurance policies from Defendants Liberty Mutual Personal Insurance Company.
In relevant part, the policies contained an Optional Transportation Expenses Coverage endorsement which provided that, in the event of an accident, LMPIC would pay the expense of a rental vehicle while repairs were performed on the damaged vehicle. If the vehicle was declared a total loss, then LMPIC would pay for a rental vehicle for the “period of time reasonably required” to replace the total loss vehicle, up to a maximum of 30 days, or $900.
Each Plaintiff alleged that after a car accident in which they received access to and payment for a rental vehicle, Liberty Mutual Personal Insurance Company and Liberty Mutual Insurance Company prematurely terminated the rental car coverage, despite the contractual obligation to first determine the amount of time a policyholder reasonably needs to replace their totaled vehicle.
Jay Angoff is an attorney with a long career working in the insurance industry. At various times over the past 40 years, he has served as the Insurance Commissioner for the State of Missouri, as the Deputy Insurance Commissioner for the State of New Jersey, as the Director of the U.S. Health Care Financing Administration’s Private Health Insurance Group, and as the Director of the HHS Office of Consumer Information and Insurance Oversight.
Defendants contended that the Court should strike the Angoff Report under Rule 702 and Daubertbecause Angoff is not qualified to render the opinions in his report and because Angoff’s opinions are not reliable.
Qualifications
Defendants argued that Angoff is not qualified to render these opinions because he “lacks any education, training, or experience in the field of accounting or financial advisory, or reinsurance” and has no relevant professional certifications or degrees.
Though Angoff has not served as an expert specifically on financial statements, given this extensive history upon which he renders his opinions, the Court concluded that he is appropriately qualified in this case. The Defendants’ attacks on Angoff’s lack of qualifications or specific certifications are an appropriate line of inquiry for cross-examination, but such bases do not disqualify him from serving as an expert in this case.
Reliability
Sufficiency of the Data
Defendants argued that Angoff’s opinions related to LMPIC’s reserves are unreliable because they are based on plainly erroneous assumptions and cherry-picked facts.
Angoff’s opinions are predominantly based off LMPIC’s and LMIC’s 2023 accounting statements, from which Angoff has drawn various conclusions based on his experience in the insurance industry reviewing and analyzing financial statements.
There is no dispute that the accounting statements and the other record evidence considered by Angoff are a reliable basis on which he could form an opinion. While Defendants contended that Angoff’s opinions are based on mistaken assumptions that account only for net numbers and ignore gross numbers, such a challenge is not an appropriate basis for exclusion at this junction. While it is entirely possible that Angoff’s reading of the accounting statements is incorrect, the Court cannot draw that conclusion because would it be appropriate for the Court to do so.
Legal Conclusions
Defendants also argued that Angoff’s opinions that LMPIC’s regulator would not permit it to pay a $45 million judgment and that LMPIC does not “act independently” of LMIC are conclusions without factual basis. Defendants further characterized this second conclusion as a legal opinion.
The Court agreed that some statements in the report are inadmissible conclusions of law. Angoff may testify regarding what, in his experience, a regulator would consider in analyzing an insurance company’s availability and source of funds to pay a judgment, but not the conclusion of law as to whether LMPIC’s regulator would permit LMPIC to pay a $45 million judgment. Similarly, Agnoff may testify as to industry practice in structuring and operating insurance companies and the relationship created in the reinsurance context, but not the conclusion of law that LMPIC does not “act independently” of LMIC.
Bias
Defendants also attacked Angoff as an unreliable expert due to alleged bias. Specially, Defendants argued that, “until recently, [Angoff] was a Plaintiff’s class action lawyer who sued insurance companies for a living, and is not independent of Plaintiffs’ counsel given his prior relationship with them.”
However, an expert’s bias goes to the weight or credibility of his testimony. As such, the Court held that Angoff’s potential bias does not necessitate his exclusion.
Held
The Court denied the Defendant’s motion to strike and exclude the opinions of Plaintiffs’ expert Jay Angoff.
Key Takeaway:
As long as an expert’s scientific testimony rests upon ‘good grounds, based on what is known,’ it should be tested by the adversary process—competing expert testimony and active cross-examination—rather than excluded from jurors’ scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies.
Angoff’s report is grounded in his experience regarding insurance companies’ financial statements and regulatory requirements. The report and record together contain sufficient explanation of Angoff’s methodological choices and reasoning to overcome a Daubert challenge in this posture.
Case Details:
Case Caption:
Watts Et Al V. Liberty Mutual Personal Insurance Company Et Al
This case arises out of an alleged design defect and failure to warn regarding a 2017 Toyota Tacoma. Lee Griffin was the primary driver of a 2017 Toyota Tacoma. After Griffin died due to accidental carbon monoxide poisoning from an automobile inadvertently continuing to run in the garage, Caroline Griffin filed suit individually and as executor of Lee Griffin’s estate.
Dr. Randall Tackett received his BS from Jacksonville University in 1975. He then received an MS degree in pharmacology and toxicology from Auburn University in 1977 and his Ph.D. in pharmacology and toxicology from the University of Georgia in 1979. Following a two-year postdoctoral fellowship at the Medical University of South Carolina, he returned to the University of Georgia as an assistant professor in the Department of Pharmacology and Toxicology.
He later served as a Professor and Associate Department Head in the Department of Clinical and Administrative Pharmacy at the University of Georgia College of Pharmacy.
Angela A. McGrath has a Bachelor of Science in Statistics, a Master of Arts in Applied Statistics, 27 years of experience in consulting, and experience teaching statistics.
She is the Principal Consultant and Director of Automotive Research at Cirque Analytics, an economic, statistical, and financial consulting company headquartered in Jackson Hole, WY. She has developed extensive experience in formulating, conducting, and directing statistical and other quantitative analyses.
Harry Pearce has over 24 years of expertise in the field of structural crashworthiness. He gained industry experience with nine years at General Motors, serving as the Lead Structural Design Engineer for multiple vehicles.
With his knowledge and experience with vehicle sealing, Pearce has addressed claims of Carbon Monoxide (CO) intrusion. He has performed Electro Magnetic Interference (EMI) testing in anechoic chambers and Brake Override System (BOS) testing at Exponent’s Test and Engineering Center.
Nathan Todd Dorris is a human factors specialist with extensive experience in product safety and the evaluation of instructions, warnings and other safety communications for a broad range of products and industries.
Randall Tackett stated two opinions in his expert report:
1. Griffin consuming 1.2 standard drinks within the hour before death is inconsistent with the evidence described above. Rather, the timeline of events is consistent with Lee Griffin ingesting higher amounts of alcohol earlier on July 4, 2022, which his body would have metabolized from the time he ingested the alcohol until his death.
2. It is more likely than not that on the evening of July 4, 2022 Griffin’s blood alcohol concentration was at a level that could have affected his reaction time, hearing, judgment, memory, reasoning and ability to detect danger including his ability to turn off his Toyota Tacoma and/or recognize that it was still running in the garage.
Motion to Exclude
In this case, Tackett attempted to estimate the decedent’s blood alcohol content (BAC) at various times before death using a method known as retrograde extrapolation. The Plaintiff did not dispute the scientific validity of this technique in general. Instead, she argued that Tackett lacked the necessary factual basis to apply it reliably in this case.
Specifically, the Plaintiff pointed out several critical unknowns: the exact time of death, the time the vehicle was parked, and any concrete details about when, what, or how much alcohol the decedent consumed. The Defendants contended that these gaps in information should affect how much weight the jury gives Tackett’s testimony, not whether it should be allowed at all. The Court disagreed.
The main issue, according to the Court, was the absence of reliable timing data. Without knowing when key events occurred, it was unclear how far back Tackett should extrapolate. His estimates ranged from one to two hours before death to as far as 14–15 hours earlier. As a result, his BAC estimates varied widely—from 0.046 to 0.297—depending on assumptions about timing and the decedent’s metabolism rate. Notably, there was also no evidence that the decedent had consumed any alcohol before parking the car, further undermining the reliability of Tackett’s conclusions.
Angela McGrath
The Defendants have proffered Angela McGrath as an expert witness to testify about the following opinions:
a. [The United States Consumer Product Safety Commission (“CPSC”)] death certificate data shows that vehicles with and without keyless ignition have inadvertently been left running in enclosed spaces.
b. Available CPSC death certificate data does not show a consistently increasing trend of accidental carbon monoxide poisoning from passenger vehicle exhaust in enclosed spaces.
c. The proportion of combustion engine vehicles on the road with keyless ignition is increasing over time, however, even by 2021, the majority of vehicles still have conventional keys.
d. While number of registered vehicles with keyless ignition and without [automatic engine time-out (“ETO”)] has increased steeply since 2011, the rates of accidental carbon monoxide poisoning from passenger vehicle exhaust in enclosed spaces has exhibited no corresponding, consistently increasing trend.
Motion to Exclude
The Plaintiff argued that McGrath’s opinions were unreliable because the CPSC database she relied on did not distinguish between carbon monoxide poisoning deaths caused by vehicles with keyless ignition systems and those with traditional mechanical ignitions. As a result, the Plaintiff contended that no meaningful statistical analysis could be done to compare the risks associated with each type of ignition system.
In response, the Defendants claimed the Plaintiff had misrepresented McGrath’s testimony. They asserted that McGrath was not attempting to directly compare the risks of carbon monoxide deaths between mechanical and keyless ignition systems. However, this argument fell short.
The Court noted that McGrath’s analysis implicitly relied on such a comparison. Her underlying logic was that if keyless ignition systems were more dangerous, the overall number of accidental carbon monoxide deaths would have increased after their introduction. Because the death rate did not rise, she inferred there was no added risk. Therefore, despite the Defendants’ assertions, McGrath’s analysis did, in fact, depend on comparing the two types of ignition systems—making the Defendants’ denial unconvincing.
Moreover, the Defendants’ argument rested on the assumption that, absent a defect, accidental carbon monoxide deaths would have remained constant from 2011-2021. The Court found this assumption questionable. Public awareness campaigns, increased usage of carbon monoxide detectors, or other safety measures could have contributed to a decline in deaths over time—independent of any defect. McGrath’s analysis failed to account for such alternative explanations.
Ultimately, the Court held that McGrath’s testimony offered nothing more than a basic correlation and lacked consideration of other plausible factors. As such, her statistical analysis could not be reliably used to show the absence of a defect.
Nathan Dorris
The Plaintiff sought to exclude four categories of opinions that Dorris asserted: (1) that the Tacoma’s warnings were sufficient, (2) that drivers lose focus while using their vehicles, (3) that the Plaintiff and decedent should have had carbon monoxide detectors in their home, and (4) that the Tacoma was not defective because it complied with regulatory and voluntary standards.
Inattentive Drivers
The Plaintiff sought to exclude Dorris’ opinions regarding how driver inattentiveness could lead individuals to leave their engines running and fail to respond to alerts or other feedback.
In response, the Defendants argued that “ Dorris’ discussion of driver distraction is just one component of the opinions he expresses in this case and is background to his primary opinions specific to the 2017 Toyota Tacoma’s Smart Key System and the subject incident.”
The statements in question included: “ [d]rivers that are distracted or inattentive (for whatever reason) can inadvertently leave their vehicle’s engine running, regardless of the type of ignition system employed,” and “[n]ot only can inattention result in execution errors and omitted actions, but it may cause individuals not to respond to alerts or other feedback.”
Dorris was not particularly clear about whether these statements—or others like them—were independent expert opinions or merely facts supporting other opinions. Even the Defendants appeared uncertain. On one hand, they described these statements as “ background to his primary opinions,” but on the other, they defended his ability to offer them as standalone opinions.
While Dorris may not opine directly that a driver’s inattentiveness causes errors, the Court held that if that fact properly supported a valid expert opinion offered by Dorris, he was permitted to rely on it.
Sufficiency of the Warning
Dorris opined that the warning provided by Toyota are “reasonable and appropriate.” The Plaintiff asserted that that opinion is unhelpful because it does not offer any analysis outside of what the jury can do itself.
Whether a warning is legally sufficient depends upon the language used and the impression that such language is calculated to make upon the mind of the average user of the product. The Court held that the adequacy inquiry here takes the perspective of the user of the product. Therefore, the jury is fully capable of determining whether the adequacy of the warning(s) at issue here without the help of an expert.
Carbon Monoxide Detectors
The Plaintiff argued that “ Dorris attempted to opine that the Griffins should have equipped their home with carbon monoxide detectors.”
However, the only relevant statement on the page of Dorris’s report cited by the Plaintiff read:
“ In a publication dated 08/2020, the Georgia Department of Public Health explicitly discussed CO exposure can cause ‘sudden illness or death’; potential sources of CO exposure include automobile exhaust; to install CO detectors ‘in every room used for sleeping’; ‘DO NOT leave a motor vehicle running in an enclosed garage.“
This statement appeared under the section titled “ Exhaust Fumes and CO Are Well Known Hazards.” Aside from the quoted portion referencing carbon monoxide detectors, there was no other mention of detectors—either in that section or anywhere else in the report.
The Court did not view this as Dorris offering an opinion that the Plaintiff or the decedent should have installed carbon monoxide detectors in their home. Instead, the Court found that he was merely citing a source he relied upon to support his broader conclusion that “ Exhaust Fumes and CO Are Well Known Hazards.”
Importantly, the Plaintiff did not challenge Dorris’s qualifications to reach that conclusion, nor did they argue that the conclusion itself was unhelpful.
Compliance with Relevant Standards
The Plaintiff moved to bar Dorris from testifying that the Toyota Tacoma was not defective simply because it complied with minimum regulatory standards.
In response, the Defendants argued that the jury had a right to consider federal compliance when evaluating whether the vehicle’s design was reasonable. They further claimed that Dorris relied on compliance as just one of several factors in concluding the Tacoma was not defective. However, the Court sided with the Plaintiff.
Dorris had stated that the lack of an automatic engine shutoff did not make the Tacoma defective, in part because ” at the time the subject vehicle was manufactured and sold (and even today), such a feature is not required by any regulation or voluntary standard.” In other words, he based his opinion on the fact that the Tacoma complied with federal regulations.
The Court found this reasoning insufficient and ruled that it warranted exclusion. Accordingly, the Court held that Dorris would be precluded from opining that the Tacoma was in compliance with federal regulation.
Harry Pearce II
The Plaintiff sought to exclude four of his opinions from testimony: (1) opinions going to intent, motive, or state of mind, (2) opinions about the source of the carbon monoxide, (3) opinions about the efficacy of carbon monoxide detectors would have had in this case, (4) opinions “parroting” Jeya Padmanaban.
Intent, Motive, and State of Mind
The Plaintiff argued that Pearce should not be allowed to testify about Toyota’s subjective state of mind.
On that point, the Plaintiff was correct—Pearce could not offer opinions about what the Defendants were thinking, such as “ Toyota did not want to [install auto shutoff] because of the concern of introducing a new risk of hot car deaths.” Such statements improperly speculate on Toyota’s intent or motivations.
However, the Defendants were also partially correct. Pearce was permitted to rely on Toyota’s internal documents and employee testimony to form his expert opinions. He “ may testify as to whether information contained in Defendants’ internal documents indicated certain risks.” The Court clarified that while Pearce could interpret the content of internal materials to identify risk indicators, he could not speculate on Toyota’s actual intent or decision-making process.
Source of Carbon Monoxide
The Plaintiff moved to exclude any opinion from Pearce regarding the source of the carbon monoxide that caused her and the decedent’s injuries.
When asked directly whether he had an opinion on the source of the carbon monoxide in this case, Pearce responded, “ I was not asked to do that so I do not have an opinion on that.“
Despite this, the Defendants added a qualification. They stated that Pearce would not offer an opinion on the matter “ unless Plaintiff opens the door to this subject through her attorneys’ examination of Pearce or the testimony of other witnesses she presents at trial.“
But as the Defendants were well aware, the Plaintiff had already retained an expert specifically to testify about the source of the carbon monoxide. And since causation is a central element of the Plaintiff’s claims, it was almost certain the Plaintiff would “open the door“ to this issue during trial.
That, however, did not give the Defendants license to question Pearce on a subject about which he had explicitly disclaimed any opinion. If the Defendants wished to challenge the Plaintiff’s expert on the source of the carbon monoxide, they should have retained their own rebuttal expert.
Carbon Monoxide Detectors
Pearce intended to opine that, “[w]ith multiple sources of CO in a home, the best protection from CO exposure is the installation of CO detectors in the home. Auto engine shut-off only protects from the one vehicle on which it is installed.”
The Plaintiff objected to this because it depended on two assumptions: (1) that any carbon monoxide detectors in the house would have worked and (2) that the Plaintiff and the decedent would have responded to the carbon monoxide detector if it did work.
However, the Court held that Pearce has extensive experience from which he could derive his opinion.
Parroting
The Plaintiff argued that any testimony by Pearce regarding a 2015 paper published by Jeya Padmanaban would be irrelevant and amount to inadmissible “parroting.”
In response, the Defendants clarified that they did not intend to have Pearce testify about Padmanaban’s research. Instead, Pearce had included the study merely as general background material.
The Defendants confirmed that they would not raise the Padmanaban study at trial unless the Plaintiff opened the door to that line of testimony. Based on this clarification, the Court denied this portion of the Plaintiff’s motion to exclude.
Held
The Court granted the Plaintiff’s motion to exclude Randall Tackett’s testimony.
The Court granted the Plaintiff’s motion to exclude Angela McGrath’s testimony.
The Court granted in part and denied in part the Plaintiff’s motion to exclude Nathan Dorris’ testimony.
The Court granted in part and denied in part the Plaintiff’s motion to exclude Harry Pearce’s testimony.
Key Takeaways:
An expert’s testimony is not relevant and may be excluded if it is directed to an issue that is well within the common sense understanding of jurors and requires no expert testimony.
Experts may not testify that a party was in compliance with a federal regulation. Whether someone has violated or is in compliance with the law is a legal conclusion.
Expert testimony about a party’s intent, motive, or state of mind is inadmissible.
