Expert Witness Profiler

Tag: Expert Report

  • Insurance Expert’s Testimony on Industry-Accepted Claims Practices Admitted

    Insurance Expert’s Testimony on Industry-Accepted Claims Practices Admitted

    This case arises from a claim made by Richard Bernier under the underinsured motorist (“UIM”) coverage provided in his State Farm policy.

    Bernier was involved in a November 18, 2020 auto accident. He settled the underlying claim for the other driver’s limits of coverage and then sought the maximum available UIM coverage under his own policy of $50,000.

    Bernier’s expert, Mr. Stephen Strzelec, concluded that State Farm “arbitrarily reduced/discounted [medical bills] based on speculation and conjecture by the claim handler.”

    However, State Farm’s expert, Ms. JoAnna Moore, wrote that Bernier’s medical bills “should have been questioned . . . [because] there was no airbag deployment, only slight injuries were noted,” and Moore saw “no physician report tying Bernier’s rotator cuff tear, ulnar nerve injury, or cervical disc disease to the accident.”

    Bernier filed and served his expert report of Stephen Strzelec on December 13, 2024 and on January 7, 2025, State Farm filed its rebuttal expert report of JoAnna Moore “on issues relating to claim handling and specifically with regard to Stephen Strzelec’s report.”

    Bernier asserted that the eight numbered paragraphs in Moore’s report are a valid rebuttal but that the last two and a half pages are “an attempt to testify in Defendant’s case-in-chief” and should be excluded.

    Insurance Expert Witness

    JoAnna Moore is the Principal and Founder of J. Moore Consulting Services. For nearly a decade, Moore served on the Advisory Board for the Center for Insurance Studies, which is part of the Mihaylo College of Business & Economics at California State University, Fullerton. In that capacity, she has been a frequent keynote speaker during the University’s annual Business Week and guest class lecturer, as well as advising the center on curriculum and course offerings.

    In 2009 she received special recognition by the Center for her continuing support of insurance education. Moore is also a participating Advisory Board member of the Women’s Leadership Institute at Auburn University, Auburn, Alabama. She earned a B.S. Degree from Auburn in 1978 and is a member of the National Association of Professional Women (NAPW). 

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

    Discussion by the Court

    The topics in Moore’s report are valid rebuttals of Strzelec’s report. Strzelec lays out what he asserts are claims-handling principals and standards, and analyzes State Farm’s handling of Bernier’s first-party underinsured motorist claim. For example, Strzelec lists all the UCSPA standards for insurance companies and asserts that, on top of the standards set in statutes and regulations, “internal standards of fairness by the insurer” help define the parameters required for every specific situation. In response to Strzelec’s assertions regarding standards for insurance companies, Moore detailed what she asserts is the “standard for claim handling.”

    First, Moore summarized what she argued is the applicable “reasonableness, not perfection” standard, and then she listed what she asserted, based on her experience, are “the reasonable and industry-accepted claims practices.” The Court held that this evidence is proper rebuttal evidence, as Moore addressed insurance company standards and practices, which is the same subject matter as the opinions in Strzelec’s report.

    Moore’s report provided “[a] list of things that Moore believes Defendant did correctly,” as well as her “personal opinion on whether Defendant acted reasonably.” These topics are on the same subject matter as the testimony of Strzelec in his expert report. In fact, Strzelec stated at the top of his “analysis and discussion” section that he was asked to “provide [his] opinions regarding State Farm’s handling of the first party underinsured motorist claims.”

    When Strzelec concluded that “State Farm failed to meet minimum industry
    standards for handling claims,” Moore listed the actions she argued demonstrated State Farm complied with industry standards, such as reviewing and utilizing contract language, seeking input from supervisory personnel, and providing appropriate claim note documentation.

    Held

    The Court denied Richard Bernier’s motion to exclude portions of JoAnna Moore’s expert report.

    Key Takeaway:

    Moore’s rebuttal expert report did not merely opine on the same general subject matter as Strzelec’s report. Instead, Moore’s rebuttal expert report properly rebuts and contradicts Strzelec’s expert testimony.

    Case Details:

    Case Caption: Bernier V. State Farm Mutual Automobile Insurance Company
    Docket Number: 4:24cv2
    Court Name: United States District Court, Alaska
    Order Date: May 28, 2025
  • Belated Production of the Accounting Expert’s Report Was Not Justified

    Belated Production of the Accounting Expert’s Report Was Not Justified

    Asserting various state and federal claims arising from alleged trademark infringement, Sacks Holdings, Inc. (the “Plaintiff” or “Sacks”) sued Grin Natural USA Limited, Grin Holdings Limited, Grin Natural US Limited, and Grin Natural Products Limited (collectively, the “Defendants” or “Grin”) for, inter alia, trademark infringement.

    In July 2024, Defendants’ counsel contacted Julianne “Juli” Saitz at FTI Consulting, asking her “to take a look at” the instant “trademark infringement dispute,” as well as to “give [defense counsel Saitz’s] thoughts on potential damages.”

    At 8:12 p.m. on Wednesday, October 30, 2024, Defendants produced a second expert report from Saitz (the “New Report”) as well as certain documents (the “New Evidence”) that contain “information relied on by Saitz in forming her opinions.” 

    Plaintiff sought to exclude the New Evidence and strike the New Report. Defendants opposed both Motions.

    Accounting Expert Witness

    Julianne Saitz has more than 25 years of experience providing forensic accounting and financial and economic analysis to attorneys in litigation and arbitration, as well as private general ledger accounting expertise. 

    Saitz holds a B.S. from New York University’s Stern School of Business. She is a Certified Public Accountant in New York, is Accredited in Business Valuation and is Certified in Financial Forensics by the American Institute of Certified Public Accountants.

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

    Discussion by the Court

    First of all, Defendants failed to establish either harmlessness or substantial justification for their belated production of the New Evidence.

    Defendants contended that the New Report qualifies as a “timely and proper” supplementation. 

    To begin, as Defendants tacitly concede, the Initial Report opines solely on the parties’ sales, whereas the New Report additionally opines on the parties’ profits. Thus, the New Report offers “new opinions” and calculations; it does not merely “offer[] more details on [Saitz’s] prior calculations” or otherwise supplement her prior opinions.

    However, Defendants just failed to provide the (basic) information necessary to begin the five-day objection window until August 26, 2024, a delay that extended the objection window beyond the expert report deadline.

    “Second,” Defendants maintained, they “created new financial statements after receiving guidance from Saitz on the details of costs and expense information necessary from deduction of sales to determine profits. That effort took until October.” The Court held that this argument does not show good cause for the violation of Rule 26.

    The exclusion of the New Evidence independently necessitates exclusion of those portions of the New Report that rely thereon, and the determination that Plaintiff possesses priority rights to the disputed mark lessens the importance of the New Report’s calculation of Plaintiff’s profits to resolution of this action. 

    This case, filed more than seventeen months ago, goes to trial in less than three months and even Defendants’ proposed alternative sanction would interject further delay into these proceedings. 

    In sum, the Court held that the Defendants failed to establish good cause for their belated production of the New Report.

    Held

    The Court granted the Plaintiff’s motion to exclude the New Evidence and strike the New Report. 

    Key Takeaway:

    Rule 26(e) requires a party to “supplement or correct its disclosure or response . . . if the party learns that in some material respect the disclosure or response is incomplete or incorrect.”

    Case Details:

    Case Caption: Sacks Holdings, Inc. V. Grin Natural USA Limited Et Al
    Docket Number: 1:23cv1058
    Court Name: United States District Court, North Carolina Middle
    Order Date: May 09, 2025
  • Intellectual Property Expert Witness’ Untimely Affirmative Opinions Excluded

    Intellectual Property Expert Witness’ Untimely Affirmative Opinions Excluded

    X Social Media LLC (“X Social Media”) and X Corp. both use the letter “X” in association with closely related advertising services. Put simply, X Corp. is a social media company that offers tools and services for advertising and generates the majority of its revenue from ads. X Social Media is an advertising agency that offers services for advertising on social media.

    This is a case for trademark infringement and related claims concerning the parties’ respective use of the letter “X” in connection with distinct product and service offerings.

    On its rebuttal report deadline, Plaintiff X Social Media served the rebuttal report of David Franklyn. Defendant X Corp. argued that Professor Franklyn advanced a host of “affirmative opinions” that rebutted nothing in either of Defendant’s expert reports.

    Intellectual Property Expert Witness

    David Franklyn is currently a law professor at Arizona State University, with an appointment in the Sandra Day O’Connor College of Law. He is also the Executive Director of the McCarthy Institute at ASU Law, which is focused on scholarship and research in intellectual property law, with particular emphasis in the areas of trademark law, branding and consumer perceptions related to brands.

    Franklyn has published extensively on issues relating to intellectual property law and is editor-in-chief and co-author of McCarthy’s Desk Encyclopedia of Intellectual Property Law.

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

    Discussion by the Court

    The Franklyn Surveys included:(1) a reverse-confusion survey and (2) an initial-interest-confusion survey. Defendant argued that the Franklyn Surveys are not responsive to its experts’ opinions and improperly advanced new theories of the case beyond the deadline to submit affirmative expert opinions. 

    A. Untimely Affirmative Opinions

    Defendant argued that the Franklyn Surveys are untimely affirmative opinions required to be served by the affirmative expert report deadline, and not the rebuttal report deadline. Nonetheless, the Court will consider whether the Franklyn Surveys constitute proper rebuttal opinion despite their designation in the Franklyn Report as affirmative opinions.

    Furthermore, Defendant argued that the initial-interest-confusion survey was improper because “initial interest confusion” is an entirely new theory that was set forth for the first time in this litigation within the Franklyn Report. In fact, Defendant contended that Plaintiff had only asserted a theory of “reverse confusion” prior to serving the Franklyn Report.

    Thus, the Defendant argued that Professor Franklyn’s initial-interest-confusion survey was not plausibly within the scope of proper rebuttal to Defendant’s experts. 

    The Court found that the Franklyn Surveys constituted untimely affirmative opinions. Basically, the concept of initial-interest confusion was not the subject of Defendant’s experts’ opinions and was introduced for the first time in this litigation within the Franklyn Report. Even if the results of Professor Franklyn’s initial-interest confusion survey could be used to undermine Defendant’s position, the initial-interest confusion survey nevertheless constituted an improper affirmative opinion.

    B. Substantially Justified or Harmless

    Now that the Court has determined that the Franklyn Surveys are untimely affirmative opinions, the subsequent question is whether Plaintiff may rely on them anyway.

    The Defendant contended that permitting the Plaintiff to use the Franklyn Surveys would unfairly prejudice its case. Defendant noted that it exchanged thousands of documents, took many depositions, and selected expert witnesses strategically in response to how Plaintiff litigated its case. Therefore, the Defendant maintained that it would have been unjust to allow the significant affirmative opinions presented in the Franklyn Surveys to be introduced belatedly in a rebuttal report.

    Plaintiff did not address Defendant’s claim that Defendant might have materially changed its strategy over the course of the extensive discovery in this case if Defendant had been timely advised of the Franklyn Surveys.

    Since the Plaintiff was unable to establish that its failure to timely disclose the Franklyn Surveys was substantially justified or harmless, the Court found that Plaintiff has failed to assuage the concern of potential prejudice to Defendant in this case. Thus, the Court exercised its discretion to preclude the use of the Franklyn Surveys.

    Held

    The Court granted the motion to strike portions of Plaintiff’s rebuttal report of
    David J. Franklyn.

    Key Takeaway:

    In determining whether the failure to disclose under Rule 26 was substantially justified or harmless, courts consider “(1) “the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party’s explanation for its failure to disclose the evidence.

    Basically, the burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing party.

    Case Details:

    Case Caption: X Social Media, LLC V. X Corp.
    Docket Number: 6:23cv1903
    Court Name: United States District Court, Florida Middle
    Order Date: May 05, 2025
  • Economics Expert Allowed to Testify Despite Lacking Experience in the Pharmaceutical Industry

    Economics Expert Allowed to Testify Despite Lacking Experience in the Pharmaceutical Industry

    Named Plaintiffs Judy Kirkbride and Beeta Lewis are consumers in Ohio and Texas that purchased prescription drugs from The Kroger Company (“Kroger”) in the last several years. They alleged that Kroger, through a deceptive pricing scheme, overcharged them for prescription drugs by misreporting the “usual and customary” (U&C) prices for Plaintiffs’ medications, which resulted in higher copayments. 

    Plaintiffs offered Colin Weir as a damages expert primarily to “explain how classwide damages in this case can be calculated using Kroger’s own records.” After Kroger’s experts opined that, to calculate damages in this action, class members’ claims need to be re-adjudicated over the entirety of a plan year, and that process requires additional data from pharmacy benefit managers (“PBMs”) that may not exist, Plaintiffs proffered the rebuttal expert report of Dr. Susan A. Hayes. 

    Defendant filed Daubert motions to exclude Colin Weir’s expert report, Susan Hayes’ expert report, and Weir’s rebuttal report.

    Economics Expert Witness

    Colin B. Weir is President at Economics and Technology, Inc., a research and consulting firm specializing in economics, statistics, regulation and public policy. He conducts economic, statistical, and regulatory research and analysis and often testifies as an expert witness before state and federal courts.

    His experience includes work on a variety of issues, including: “calculating economic harm and damage, and analyzing liquidated damages provisions; lost profits; false claims; diminution in value; merger/antitrust analysis; Early Termination Fees (ETFs); Late Fees; determination of Federal Excise Tax burden; and development of macroeconomic analyses quantifying the economic impact of corporate actions upon the US economy and job markets.”

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

    Pharmacy Expert Witness

    Dr. Susan Hayes has over 40 years’ experience in the health care consulting, pharmacy benefit management industry. Hayes is the principal, owner, and founder of Pharmacy Investigators and Consultants.

    In addition to her work at Pharmacy Investigators and Consultants, she is an Assistant Professional Practices Professor and the Director of the Health Informatics Masters Degree Program at Roosevelt University, where she teaches two of the graduate level classes. She is also a Certified Registered Pharmacy Technician in Illinois and has authored research that discusses ethical decision-making in the pharmaceutical industry.

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

    Discussion by the Court

    Motions to Exclude Colin Weir’s Testimony

    Initially, the “price paid by Class Member,” according to Weir, is found in Kroger’s transactional records—a dataset of over 158 million pharmacy transactions of generic prescriptions that occurred between December 1, 2018 and November 30, 2022, in Ohio and Texas, with 38 variables describing each transaction. However, Kroger argued that Weir’s analysis “did not meet the requirements of Rule 702” for several reasons.

    First, Weir allegedly lacked the “specialized knowledge” to answer the specific questions at issue: whether class members can be identified by certain Bank Identification Numbers (“BINs”) and classwide damages determined via a formula using only pricing lists and pharmacy claims data. Second, the formula Weir opines can calculate damages on a classwide basis purportedly comes directly from counsel. Finally, the “simplified methodology” proposed by Weir allegedly “ignores the complex set of payment steps that occur with each pharmacy transaction between third-party payors (“TPPs”), PBMs, pharmacies, and individual customers.”

    Analysis

    Ultimately, Kroger has failed to demonstrate that Weir’s testimony is inadmissible under Rule 702 and Daubert. Specifically, its first argument—that Weir lacks experience in the pharmaceutical industry to offer an admissible expert opinion on damages in this case—is foreclosed by Sixth Circuit precedent because a generally experienced expert’s “unfamiliarity with some specific aspects of the subject at hand merely affect[s] the weight and credibility of [the] testimony, not its admissibility.”

    The Court held that Kroger’s second argument, that Weir’s methodology is unreliable because it relied on assumptions from Plaintiffs’ counsel, likewise missed the mark. Weir explained that his damages framework was based on Plaintiffs’ theory of liability in this case, and “it is entirely appropriate for a damages expert to assume liability for the purposes of his or her opinion.”

    Finally, Defendant attacked Weir’s methodology by questioning his failure to consider certain information regarding class members’ individual drug prescription transactions in making his calculations. The Court held that Kroger’s arguments “go to the factual sufficiency of Weir’s analysis and not to the reliability of his underlying methodology.”

    Motion to Exclude Susan Hayes’ Testimony

    Kroger sought to exclude Hayes’ testimony, arguing that her “experience does not include calculating damages in litigation,” and that “she has no education, training, or experience in economics or accounting, let alone in calculating damages.”

    Analysis

    Kroger does not dispute that Hayes is qualified to opine about PBMs or the PBM industry standards and practices generally.

    This Court likewise found Hayes qualified to offer expert opinions regarding PBM practices. Drawing on her decades-long experience in auditing PBMs, she has provided helpful testimony to this Court that rests on a “reliable foundation” and is “relevant to the task at hand.”

    Held

    The Court found that Plaintiffs have satisfied the requirements of Federal Rule of Evidence 702 to admit the expert testimony of Colin B. Weir and Dr. Susan A. Hayes.

    Key Takeaway:

    • Furthermore, Kroger’s argument that Weir’s methodology “is based solely on assumptions provided by Plaintiffs’ counsel” is unpersuasive, because “experts may permissibly rely on assumptions about underlying facts that are stated to them by the client.”
    • Moreover, Rule 702 only requires that an expert have specialized knowledge that “will help the trier of fact to understand the evidence or to determine a fact in issue,” not all facts at issue.

    Case Details:

    Case Caption: Kirkbride V. The Kroger Co.
    Docket Number: 2:21cv22
    Court Name: United States District Court, Ohio Southern
    Order Date: April 09, 2025
  • Rule 26 Met: Accounting Expert’s Report Provided the Correct Kind of Appendix

    Rule 26 Met: Accounting Expert’s Report Provided the Correct Kind of Appendix

    Ink 477, LLC and Grove Ink, LLC, operating the Miami restaurant and bar “Amal” and “Level 6,” are accused by former employee Jose Petersen of violating the Fair Labor Standards Act (FLSA). Petersen, who worked as waitstaff at Amal from June to September 2022 and then at Level 6 from May to September 2023, claims the companies failed to pay him proper overtime, withheld agreed-upon service charges, and illegally confiscated portions of his earned tips.

    As mandated by the Court’s scheduling order, the Defendants submitted their expert disclosures on October 18, 2024, identifying Christopher Nadeau as a forensic accounting and valuation expert. Nadeau’s report, which included an appendix listing the documents he reviewed, was provided. However, the actual documents themselves were not attached.

    A week later, on October 25, 2024, the Plaintiff filed a motion arguing that the Defendants’ disclosure was insufficient. The Plaintiff claimed that Nadeau’s report vaguely referenced the reviewed documents, making them difficult to locate within the Defendants’ existing document production. They asserted that Rule 26 of the Federal Rules of Civil Procedure does not require the opposing party to search for the data used by the expert. Consequently, the Plaintiff argued that the Defendants failed to comply with the scheduling order because Nadeau’s report did not include the “facts or data” he analyzed.

    Prior to the Defendants’ response, the Court held a discovery hearing on November 4, where the Plaintiff demanded the “31 documents” Nadeau reviewed. The Court rejected this interpretation of Rule 26, stating that it does not require experts to attach all underlying documents to their reports. The Court subsequently issued a written order confirming that listing the reviewed documents in an appendix, as Nadeau did, is standard litigation practice.

    Accounting Expert Witness

    Christopher M. Nadeau, CPA, CMA, CVA, is a forensic accounting professional and valuation analyst with experience supporting litigation across a range of commercial disputes. His work primarily focuses on economic damages analysis and business valuation for various industries including automobile dealerships, manufacturing, restaurants, and real estate.

    He specializes in calculations related to personal injury and wrongful termination cases.

    Nadeau is a licensed Certified Public Accountant in the State of Massachusetts. He also holds credentials as a Certified Management Accountant (CMA) from the Institute of Management Accountants and as a Certified Valuation Analyst (CVA) from the National Association of Certified Valuators and Analysts.

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

    Discussion by the Court

    In their response to the Plaintiff’s motion, the Defendants cited the Court’s ruling, emphasizing that Rule 26(a)(2) only requires identification of the reviewed items, not their production. The Plaintiff, in their reply, countered by stating that the Defendants did not produce the relevant discovery documents until November 1, after the initial discovery deadline, the expert disclosure deadline, and the filing of their motion.

    The Plaintiff’s central claim is that the Defendants’ expert disclosure was deficient because it lacked the underlying “facts or data” used by the expert. However, the Court maintained that Rule 26 did not mandate attaching all supporting documents to an expert report. While not required to provide all raw data, the Defendants did furnish a link to the documents listed in the expert’s appendix. Furthermore, the Plaintiff received this link well in advance of the discovery deadline and trial, ensuring sufficient notice of the expert’s opinions and supporting data. The Court ruled that Nadeau’s report provided the correct kind of appendix, and that was all he needed to do to satisfy Rule 26.

    Held

    The Court denied the Plaintiff’s motion to strike Defendants’ expert disclosures.

    Key Takeaway:

    While the language of Rule 26 could be construed to support the Plaintiff’s argument, the courts have consistently interpreted it otherwise. Rule 26 requires a statement of the data considered by the expert, but does not require the expert to include the data itself.

    Case Details:

    Case Caption: Petersen V. Ink 477, LLC Et Al
    Docket Number: 1:24cv20008
    Court Name: United States District Court, Florida Southern
    Order Date: March 19, 2025
  • Accounting Expert’s Reliance upon a Disputed Fact does not Equate to Insufficient Facts

    Accounting Expert’s Reliance upon a Disputed Fact does not Equate to Insufficient Facts

    In a recent legal battle between Mo Pow and Crypto, the spotlight has fallen sharply on expert testimony, specifically the lost profits analysis provided by Mo Pow 4’s expert, David A. Hall. This case, fundamentally about two failed digital currency mining agreements, has turned into a fascinating examination of expert witness reliability and the challenges to their methodologies.

    Firstly, to set the stage, the Court initially found breaches of contract by both parties and requested further expert opinions to quantify damages. Mo Pow 4 subsequently engaged Hall, who presented a report claiming $5,374,000 in lost profits. However, Crypto immediately raised concerns, focusing on Hall’s decision to use Odessa, Texas, as the hosting site for his calculations, rather than Strafford, Missouri, as stipulated in the second agreement.

    Consequently, Crypto filed a motion to strike Hall’s opinions, arguing that this substitution was a deliberate attempt to inflate damages, and further claimed that Hall’s methodology was unreliable, based on undisclosed documents, and failed to account for crucial contractual terms. Conversely, Mo Pow 4 contended that Crypto was merely challenging Hall’s assumptions, not his methodology, and asserted their right to relocate the mining site.

    Accounting Expert Witness

    David Hall is a Managing Director with Alvarez & Marsal Disputes and Investigations in Denver. He has more than 30 years of experience providing expert consulting and testimony services to clients on accounting, economic, financial and damages issues.

    Hall earned a bachelor’s degree from the University of Michigan and an MBA (highest honors) from the University of Texas at Austin. A Certified Management Accountant (CMA), Certified Valuation Analyst (CVA) and a Certified Fraud Examiner (CFE), he is also a member of the Institute of Management Accountants, the National Association of Certified Valuators and Analysts, the National Contract Management Association and the Association of Certified Fraud Examiners.

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

    Discussion by the Court

    Defendant’s Objections

    Crypto’s primary objection centered on Hall’s use of Odessa, Texas, as the location for calculating lost profits, instead of Strafford, Missouri, as specified in the second agreement. They argued that this substitution was a deliberate attempt to inflate the lost profits figure, implying that the Texas site was chosen precisely because it would yield a higher damage calculation. In essence, they accused Hall of manipulating his analysis to favor Mo Pow 4. Crypto broadly claimed that Hall’s entire calculation was based on an unreliable methodology.

    This objection encompassed concerns about the assumptions Hall made, the variables he included or excluded, and the overall approach he took to calculating lost profits. Further, Crypto asserted that Hall relied on documents and information related to the Texas site that were not timely disclosed during the discovery process, arguing that this constituted a violation of discovery rules and prejudiced their ability to effectively challenge Hall’s opinions. Finally, Crypto argued that Hall’s opinions failed to consider various terms of the Second Agreement, additional costs, and rate variances that would significantly impact his calculations, pointing to specific omissions, such as the use of inappropriate electrical rates, failure to account for “uptime” variations, and neglecting adverse market conditions.

    Plaintiff’s Counterarguments

    In opposition, Mo Pow 4 countered that Crypto’s objections were fundamentally challenges to the assumptions and variables that Hall chose to consider, rather than to the underlying methodology itself. They argued that Hall’s use of the AICPA-approved incremental profit method was sound, and that Crypto’s concerns were simply disagreements about the inputs used in that method. Mo Pow 4 asserted that they had the authority to unilaterally relocate the cryptocurrency mining site to Texas after Crypto failed to perform under the Second Agreement, providing an explanation as to why the relocation would have occured, and that even though the notice was not sent, it was still a valid assumption.

    Mo Pow 4 explained that the documents in question did not become relevant until Hall performed his expert work, which occurred after the initial discovery period. They also pointed to the fact that the Court had reopened expert discovery, and that they provided the documents as soon as possible, arguing that their supplemental disclosure was substantially justified, given the circumstances and the Court’s prior orders. Finally, Mo Pow 4 argued that many of Crypto’s concerns, such as the use of specific electrical rates and the omission of certain variables, were matters of weight that could be addressed through cross-examination, rather than grounds for excluding Hall’s testimony altogether, emphasizing that the Court’s role as a gatekeeper was not to determine the accuracy of Hall’s opinions, but rather to ensure that his methodology was reliable.

    Analysis

    The Court found Hall’s expert report to meet the reliability standards of Rule 702, despite the challenges raised by Crypto. Thus, while the use of the Texas site and other assumptions were subject to scrutiny, they did not render the report fundamentally unreliable. Therefore, the Court emphasized that vigorous cross-examination and the presentation of contrary evidence were the appropriate remedies for any perceived weaknesses in the expert testimony.

    Since the motion was referred to a magistrate judge, a final determination was not made as to whether Mo Pow’s supplemental disclosures were substantially justified or harmless out of an abundance of caution, and only a recommendation was provided to the assigned district court judge. The magistrate judge recommended that the Court find Mo Pow’s failure to provide certain documents Hall relied upon in his report until after his report issued, was substantially justified. 

    Held

    The Court found that Mo Pow’s expert, Mr. David A. Hall, and the opinions presented in his expert report, met the requirements of Federal Rule of Civil Procedure 26(a)(2)(B) and Federal Rule of Evidence 702. Moreover, the magistrate judge recommended that the presiding judge determine that Mo Pow’s failure to provide certain documents relied upon by Hall to support his lost profits damage opinion until after the close of discovery had been substantially justified.

    Key Takeaway:

    The Court, acting as a gatekeeper under federal rules, found Hall’s qualifications and methodology met reliability standards, distinguishing between disputed assumptions affecting evidence weight and fundamental flaws impacting admissibility. Ultimately, the Court emphasized that vigorous cross-examination, rather than exclusion, was the appropriate remedy for perceived weaknesses in the expert’s analysis.

    Case Details:

    Case Caption: Mo Pow 3 Llc Et Al V. Crypto Infiniti LLC
    Docket Number: 1:22cv155
    Court: United States District Court, Wyoming
    Order Date: March 11, 2025
  • Expert Witness Disclosure: When Technicalities Don’t Trump Substance

    Expert Witness Disclosure: When Technicalities Don’t Trump Substance

    Three former medical residents sued Southwestern Vermont Medical Center (SVMC) and William Sarchino, alleging negligence regarding the operation of x-ray machines. Subsequently, Plaintiff Shazad Buksh disclosed Dr. Phillip Beron, M.D., as an expert to support claims of inadequate training and lack of protective procedures during x-rays.

    Defendants sought to exclude Beron’s report and opinions, citing two main objections:

    • Incomplete Disclosure: The initial expert report failed to include a list of Beron’s previous expert opinions and cases from the preceding four years, as required by Federal Rule of Civil Procedure 26(a)(2).
    • Limiting Language: Beron’s report included the statement, “This report is not intended to be an exhaustive summary of all my conclusions or reference materials,” which Defendants argued made the report incomplete.

    Radiation Oncology Expert Witness

    Phillip Beron is a practicing physician licensed by the state of California and the state of Arizona. He is board-certified in therapeutic radiology/radiation oncology, which includes being tested and passing the sections on genitourinary malignancies, which includes bladder cancer.

    Discover more cases with Phillip Beron as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    Plaintiff’s Opposition

    In response, Plaintiff acknowledged the initial oversight regarding the list of prior expert opinions, but emphasized that the violation had been remedied. Additionally, Plaintiff argued that the limiting language in Dr. Beron’s report was a standard reservation, allowing for flexibility in explaining reasoning and opinions without introducing new opinions.

    Analysis

    Procedural Non-Compliance

    Initially, the Court noted that Defendants’ counsel did not comply with Federal Rule of Civil Procedure 37 and Local Rule 26(c), which require good-faith efforts to resolve disputes before filing motions.

    Remediation of Disclosure Issue

    However, the Court acknowledged that the initial failure to list prior opinions had been corrected, negating any prejudicial impact. Furthermore, the Court offered to extend the discovery schedule for Beron’s deposition if the defense requested it.

    Interpretation of Limiting Language

    Moreover, the Court accepted Plaintiff’s argument that the limiting language was a typical reservation, allowing for flexibility without implying new opinions. The Court stated that any attempt to introduce new opinions at trial could be prevented by court order.

    Denial of Motion to Exclude

    The Court denied Defendants’ motion to exclude Beron’s expert report and opinions, finding that the technical deficiencies did not warrant exclusion.

    Held

    The Court denied the Defendants’ motion to exclude the opinions of Phillip Beron, M.D. 

    Key Takeaway:

    Indeed, this case highlights the importance of adhering to procedural rules regarding expert witness disclosures. However, it also demonstrates the Court’s discretion in addressing technical deficiencies. Specifically, the Court prioritized substance over minor procedural errors, while simultaneously emphasizing the need for good-faith efforts to resolve disputes. Consequently, this decision underscores the Court’s role in ensuring fair and efficient litigation.

    Case Details:

    Case Caption: Buksh Et Al V. Dr. William Sarchino Dpm Foot And Ankle Surgeon Et Al
    Docket Number: 2:21cv190
    Court: United States District Court for the District of Vermont
    Order Date: February 27, 2025
  • Computer Science Expert Witness’ Testimony About the Disclosure of App Users’ Email Addresses Admitted

    Computer Science Expert Witness’ Testimony About the Disclosure of App Users’ Email Addresses Admitted

    In this putative class action, Plaintiff Charles Therrien claimed that Defendant Hearst Television, Inc. (HTV or Hearst), unlawfully disclosed his personally identifiable information – including a record of every video he had viewed on Hearst’s Apps – to two third parties, Braze and Google, in violation of the Video Privacy Protection Act.

    HTV argued that its news and weather apps share only specific data with its vendors, Braze and Google Ad Manager (“GAM”), limited by each user’s
    permissions. None of those data points identify a specific person as having requested a specific, prerecorded video. HTV’s separate video identifier value is never shared. Nor is there any evidence that HTV knew that the data it did share could identify a user, let alone connect a user to specific video content, as required to be deemed personally identifying information under the Video Privacy Protection Act.

    Hearst filed a motion to strike the expert testimony of Dr. Narseo Vallina-Rodriguez for all purposes pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Hearst also moved to strike the allegedly untimely expert report of Dr. Jason Polakis.

    Computer Science Expert Witnesses

    Narseo Vallina-Rodriguez has considerable experience in the fields of mobile platforms and application analysis, computer network analysis and measurement, and mobile privacy and security risks. His 15-year career in these fields includes his work at the International Computer Science Institute at University of California, Berkeley, analyzing mobile applications’ privacy and security practices, and his work at AppCensus Inc., analyzing Android users’ geolocation data and unique identifiers – along with his education – which includes a M.Sc. in Telecommunications Engineering from the University of Ovideo and a PhD in Computer Science from the University of Cambridge.

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

    Jason Polakis has focused on understanding the security and privacy limitations of Internet technologies and mobile systems, and designing fully automated auditing frameworks and robust defenses. His work has revealed significant flaws in popular web services and browsers, and major vendors have deployed his proposed defenses, leading to concrete security and privacy benefits for billions of users.

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

    Discussion by the Court

    In Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998), it was held that “Daubert does not require that a party who proffers expert testimony carry the burden of proving to the judge that the expert’s assessment of the situation is correct . . . . In short, Daubert neither requires nor empowers trial courts to determine which of several competing theories has the best provenance. It demands only that the proponent of the evidence show that the expert’s conclusion has been arrived at in a scientifically sound and methodologically reliable fashion.”

    Narseo Vallina-Rodriguez

    To begin with, Hearst argued that Vallina-Rodriguez’s testimony should be stricken as it is based on an unreliable methodology.

    In forming his opinion that the disclosure of App users’ email addresses, geolocation, and AAIDs (Mobile Advertising IDs) was reasonably and foreseeably likely to reveal their identities to Braze and Google, the Court held that Vallina-Rodriguez relied on a systematic literature survey of various peer-reviewed empirical studies that include data aggregations similar to those in this case, e.g., timestamped geolocation data points collected by GPS sensors on cell phones.

    The idea that individuals are likely to be identified and de-anonymized by cross-referencing external data sources against frequented locations is a conclusion accepted within the data privacy research community.

    Although, as HTV points out, Vallina-Rodriguez has not conducted an empirical analysis involving Therrien personally, he was given access to only a single datapoint, which was the last known geolocation coordinate of Therrien. Moreover, Vallina-Rodriguez did not analyze the 78 points of geolocation data for former named Plaintiff Michele Saunders because he was not attempting to identify her.

    The Court held that Hearst’s challenges to Vallina-Rodriguez’s testimony, at best, addressed the weight of the evidence as opposed to its admissibility. To the extent Vallina-Rodriguez’s opinions constitute legal conclusions or are based on insufficient anecdotal evidence, they may be subject to a proper motion in limine or appropriate objection at trial. 

    Jason Polakis

    When considering whether to strike an untimely expert report, the Court may consider various factors: (1) the history of the litigation; (2) the sanctioned party’s need for the precluded evidence; (3) the sanctioned party’s justification (or lack of one) for its late disclosure; (4) the opponent-party’s ability to overcome the late disclosure’s adverse effects (e.g., the surprise and prejudice associated with the late disclosure); and (5) the late disclosure’s impact on the district court’s docket.

    On Friday, December 6, 2024 at 5:31 pm, Plaintiffs’ counsel emailed Hearst’s counsel an expert report from Polakis, who had not previously been identified by the Plaintiff.

    The scheduling order entered by the Court in this case made it clear, as recently as May 0f 2024, that Plaintiff’s expert reports were due on October 18, 2024, and that all expert discovery was to be completed by December 6, 2024. 

    However, Therrien failed to disclose Polakis or his expert report within this Court’s discovery deadlines and offered no reason as to why he could not have identified him earlier and provided his report in a timely manner. In other words, the Court did not accept Therrien’s lame characterization of the report as a “rebuttal” and made particular note of the fact that there was no effort on Plaintiff’s part to seek an amendment extending the Court’s discovery schedule and its deadlines. 

    Moreover, Rule 26 provides a schedule for a rebuttal report only in the absence of a scheduling order (which is not the case here).

    In conclusion, to permit Therrien to ambush the Defendant with a previously undisclosed expert report of a previously unidentified witness would “undermine the purpose of setting deadlines for expert disclosures; those deadlines must have some force if the courts are to be able to manage their dockets in any meaningful way.” 

    Held

    The Court denied Hearst’s motion to strike the testimony of Dr. Narseo Vallina-Rodriguez but allowed the motion to strike the report of Dr. Jason Polakis.

    Key Takeaway:

    • Vallina-Rodriguez’s testimony was based on a reliable methodology because he relied on a systematic literature survey of various peer-reviewed empirical studies that include data aggregations similar to those in this case, e.g., timestamped geolocation data points collected by GPS sensors on cell phones.
    • Therrien failed to disclose Polakis or his expert report within this Court’s discovery deadlines and offered no reason as to why he could not have identified him earlier and provided his report in a timely manner. The Court did not accept Therrien’s lame characterization of the report as a “rebuttal” and made particular note of the fact that there was no effort on Plaintiff’s part to seek an amendment extending the Court’s discovery schedule and its deadlines. 

    Case Details:

    Case Caption: Therrien V. Hearst Television
    Docket Number: 1:23cv10998
    Court: United States District Court, Massachusetts
    Order Date: February 14, 2025
  • Automotive Engineering Expert Witness’ Testimony Survives Rule 37 Exclusion Sanction

    Automotive Engineering Expert Witness’ Testimony Survives Rule 37 Exclusion Sanction

    Vicki Oetjens had surgery in October of 2020. Had all gone to plan, a diseased portion of her colon would have been removed, then the healthy ends would have been stapled together. But when the surgical stapler was deployed, no staples fired. This left a hole in Vicki’s large intestine requiring surgical repair. Vicki had to use an ostomy bag until she had a second surgery to reverse the first and reconnect her intestine. When Vicki developed a hernia at the site of her incision, that second surgery led to a third.

    So in June of 2022, Vicki and her husband Eric Oetjens sued the entities that manufactured the stapler: Medtronic USA, Inc., Medtronic, Inc., and Covidien LP (collectively “Covidien”).

    The Oetjens identified Larry Petersen as a third proposed expert witness. Per their expert disclosures, Petersen is “expected to testify concerning the mechanical use of the subject 28 [mm] EEA Circular Stapler.” 

    Covidien protests that the Oetjens’ failure to submit an expert report for Petersen violates Rule 26(a)(2)(B) and warrants exclusion of his testimony under Rule 37(c)(1).

    The parties agreed that Petersen is a retained expert witness who, pursuant to Rule 26(a)(2)(B), cannot offer expert testimony without first tendering a written expert report. They also agreed that no such written report has been produced. So the only question is whether the Oetjens can avoid Rule 37(c)(1)’s exclusion sanction by showing that their failure to comply with Rule 26(a)(2)(B) “was substantially justified or is harmless.”

    Automotive Engineering Expert Witness

    Larry Petersen is an automotive engineer whose litigation support work, in a primary engineering analysis and expert testimony role, includes detailed design, failure analysis and accident reconstructions including automotive components including engine, transmission, driveline, brake and suspension and engine/transmission control components.

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

    Discussion by the Court

    The Oetjens, seemingly pointing to Rule 37(c)(1)’s exception for “substantially justified” nondisclosure, responded that they cannot yet produce an expert report for Petersen for two reasons. First, they cited “outstanding discovery requests,” asserting that Petersen cannot offer an expert opinion on whether Covidien’s stapler fired without stapling or failed to fire at all until the Oetjens receive “an exemplar stapler to inspect” and depose a Rule 30(b)(6) Covidien representative with “a working knowledge of the mechanics of the stapler,” specifically whether the stapler can cut without stapling.

    Further, said Covidien, the Oetjens should have timely submitted an expert report for Petersen, “then supplemented it if necessary—or sought additional time.”

    It should be noted that Petersen’s testimony is contingent upon whether Covidien raises a user error argument. They say they identified Petersen as an expert witness “for the sole purpose of having an independent engineer available . . . in the event that [Covidien] takes the position that there was some type of user error on the part of the medical staff or that a mechanical issue arises with regard to the use of the stapler.” If Covidien argues user error, then the Oetjens will provide an expert report for Petersen. Otherwise, the Oetjens may not need Petersen’s expert testimony at all, or they may use Petersen only “as a potential engineering rebuttal witness” such that “there would be no need for an expert report.”

    Because the parties stipulated to stay Covidien’s expert disclosure deadline pending the resolution of its motions, it should be noted that Covidien “will not be prejudiced by allowing Petersen to submit his expert report, if necessary, once the outstanding discovery has been provided.” 

    On this key point, therefore, the Court found that the Oetjens’ failure to timely provide an expert report for Petersen is ultimately harmless.

    Held

    The Court denied without prejudice the Defendants’ motion to strike Larry Petersen’s testimony. It provided Covidien with the opportunity to depose Petersen and retain a rebuttal expert witness prior to trial. This will eliminate any prejudice to Covidien and aid in efficiency should Petersen’s expert report prove unnecessary.

    Key Takeaway:

    While Covidien made strong arguments that the Oetjens should have proceeded differently with respect to Petersen’s expert disclosures, the Court concluded that the Oetjens’ missteps were not ultimately prejudicial, so exclusion is not necessary on that ground.

    Petersen was identified as an expert witness for the sole purpose of having an independent engineer available in the event that [Covidien] takes the position that there was some type of user error on the part of the medical staff or that a mechanical issue arises with regard to the use of the stapler. Considering Petersen’s testimony was contingent upon whether Covidien raised a user error argument, it was likely that Oetjens may not need Petersen’s expert testimony at all.

    Case Details:

    Case Caption: Oetjens Et Al V. Medtronic, Plc Et Al
    Docket Number: 2:22cv11220
    Court: United States District Court, Michigan Eastern
    Order Date: January 16, 2025
  • Insurance Expert Witness’ Estimate Excluded Because Unknown Contractors Collected the Data

    Insurance Expert Witness’ Estimate Excluded Because Unknown Contractors Collected the Data

    Plaintiffs Gregory Hebbler and Marion Hebbler contracted with Defendant State Farm Fire and Casualty Company to insure their home located at 6009 Angler Drive, Picayune, Mississippi.

    On August 29, 2021, Hurricane Ida made landfall, purportedly damaging the residence. When Defendant conducted an on-site inspection and estimated the monetary damage caused by Hurricane Ida, it issued no payment because this figure fell below Plaintiffs’ deductible.

    Plaintiffs ultimately designated Rich Lyon as their sole expert witness, referencing a June 7, 2023, Estimate as his report, but they did not attach this Estimate to their designation. On July 1, 2024, almost three months after their expert designation deadline had passed, Plaintiffs submitted a supplemental designation, disclosing Lyon’s Supplemental Report.

    On August 19, 2024, Defendant filed the instant motion to strike Plaintiffs’ expert witness Rich Lyon.

    Insurance Expert Witness

    Rich Lyon is a licensed State of Louisiana Public Insurance Adjuster and Registered Insurance Appraiser. He is the owner and operator of Gulf Coast Adjusting, LLC. Gulf Coast Adjusting, LLC is a Louisiana-licensed and bonded company offering Public Adjusting, Insurance Claims Appraising, Insurance Claims Umpiring and Construction Estimating services throughout the states of Louisiana and Mississippi.

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

    Discussion by the Court

    A. Lyon’s reports

    1. The June 7, 2023, Estimate

    The June 7, 2023, estimate offered by Plaintiffs as Lyon’s initial expert report contains only damage estimates and includes no narrative language, explanations, or opinions as to causation. The Estimate valued the damage to Plaintiffs’ property at $144,661.05, with no amount specified for depreciation. The Estimate is based on a June 5, 2023, inspection that was conducted by an independent contractor hired by Lyon.

    2. The Supplemental Report

    In his supplemental report, Lyon for the first time offered an opinion as to causation, stating that Hurricane Ida caused the damage to Plaintiffs’ residence. This opinion is based upon “on-site inspections of the subject property, interviews with the property owner, . . . documentation provided to [him], [his] extensive work related to hurricanes [and] windstorms, and [his] accumulative experience in the construction and insurance industries gained over the past 25 years.”

    Lyon conducted an inspection of Plaintiffs’ property on June 24, 2024, which resulted in him revising the June 7, 2023, damage estimate downward to $75,707.42, again with no deduction specified for depreciation.

    B. Defendant’s Motions

    Defendant asked the Court to exclude the June 7, 2023, estimate because it was made by unknown independent contractors, such that the Court cannot test the reliability of its factual underpinnings or methodologies. Next, the Court should strike the supplemental report because it is not supplemental, but is in fact a new report, and was produced by Plaintiffs over two and half months after the expert designation deadline.

    1. Defendant’s challenge to the June 7, 2023, Estimate offered as Lyon’s expert report

    Defendant argued that Plaintiffs’ timely June 7, 2023, estimate is unreliable because it offered no causation opinions and because unknown independent contractors collected the data underlying the estimate and did the majority of the work creating it.

    Lyon affirmed under oath that both the inspector and estimators’ identities are protected by nondisclosure agreements, and he would not reveal them. Since Plaintiffs have not identified who conducted the inspection or created the Estimate, neither Defendant nor the Court can test the reliability of the data and methods employed in repairing it. On this record, Plaintiffs cannot meet their burden of showing that the bases and methodologies underlying the estimate are reliable, and the Court therefore rejected the June 7, 2023, estimate.

    2. Lyon’s Supplemental Report offering causation opinions

    Defendant next challenged Lyon’s supplemental report, disclosed after Plaintiffs’ expert designation deadline but prior to the close of discovery.

    It should be noted that Lyon’s supplemental report relies upon information gathered by an unknown independent contractor during the June 7, 2023, inspection, Lyon’s own inspection conducted on June 24, 2024, documentation provided to him, and interviews with Plaintiffs. With the exception of Lyon’s inspection, this information was available to Plaintiffs well before the expert designation deadline of April 9, 2024, and Plaintiffs have not offered any explanation why Lyon could not have conducted his inspection before the deadline. For these reasons, the Court concluded that the supplemental report is not supplemental but is in fact a new expert report, such that it could and should have been disclosed by April 09, 2024.

    Four factor analysis under Rule 37 to determine the proper sanction

    Starting with the fourth factor, the explanation for the failure to comply with the Court’s deadlines, Plaintiffs justify the late disclosure by stating that they paid out-of-pocket to repair their roof in July 2023.

    But Plaintiffs do not explain how the completion of these repairs prevented them from timely disclosing the supplemental report or why, if there was an issue, it could not be resolved in the nine months between the completion of repairs and the designation deadline of April 9, 2024.

    The third factor is the possibility of a continuance. This, according to the Court, weighs in favor of Defendant because the case is scheduled for Pretrial Conference next month and a continuance would only further delay this case, in essence rewarding Plaintiffs for failing to timely disclose the supplemental report without any justifiable explanation.

    The first factor is the importance of the witness’ testimony. Without Lyon, Plaintiffs cannot meet their burden of showing causation and Defendant will be entitled to summary judgment. But even where the expert testimony is significant, “the importance of such proposed testimony cannot singularly override the enforcement of local rules and scheduling orders.”

    Turning to prejudice, Lyon had the benefit of possessing Defendant’s expert report when he prepared the supplemental report, and Defendant’s expert’s ability to prepare his own report was impeded by not having access to Lyon’s supplemental report. Defendant would also be required to expend time and financial resources to prepare a response to Lyon’s new causation opinion, causing further prejudice. On balance, the Court held that this factors weigh in favor of excluding the supplemental report.

    The circumstances of this case warrant striking the Supplemental Report

    Plaintiffs argued that Defendant waived the right to challenge Lyon’s expert designation by failing to file its motion thirty days before the discovery deadline.

    The Court found that Plaintiffs attempted to frame Defendant’s argument as a challenge to the initial expert designation, when in fact Defendant is contending that the supplemental report itself introduces new expert testimony and is therefore not supplemental. This would mean that Defendant would have had to file its challenge to Plaintiffs’ disclosure no later than five days later. It would be unfair to permit Plaintiffs to violate their deadline for disclosing expert reports by almost three months, and then penalize Defendant for failing to file its motion to strike by the deadline because Plaintiffs served the supplemental report mere days before it passed.

    Held

    The Court found that Defendant’s motion to strike should be granted as to Plaintiffs’ expert Rich Lyon, and he will be excluded from testifying at trial. The
    Court also granted Defendant’s motion for summary judgment because Plaintiffs cannot make the requisite showing as to causation. Plaintiffs Gregory Hebbler and Marion Hebbler’s claims were dismissed with prejudice.

    Key Takeaways:

    • The Court excluded June 07, 2023, estimate offered as Lyon’s expert report because unknown independent contractors did the majority of the work creating it as a result of which the Court cannot test the reliability of its factual underpinnings or methodologies.
    • The supplemental report offered by Lyon is not supplemental but is in fact a new expert report, such that it could and should have been disclosed by April 09, 2024. It should be noted that Lyon’s supplemental report relies upon information gathered by an unknown independent contractor during the June 7, 2023, inspection, Lyon’s own inspection conducted on June 24, 2024, documentation provided to him, and interviews with Plaintiffs. With the exception of Lyon’s inspection, this information was available to Plaintiffs well before the expert designation deadline of April 9, 2024, and Plaintiffs have not offered any explanation why Lyon could not have conducted his inspection before the deadline.

        Case Details:

        Case Caption: Hebbler Et Al V. State Farm Fire And Casualty Company
        Docket Number: 1:23cv247
        Court: United States District Court, Mississippi Southern
        Order Date: December 18, 2024