Expert Witness Profiler

Tag: Expert Report

  • Education & Schools Expert Witness’ Testimony Excluded Because of its Untimeliness and Insufficiency

    Education & Schools Expert Witness’ Testimony Excluded Because of its Untimeliness and Insufficiency

    In October 2023, Plaintiff Leslie Baldwin sued Kalispell School District #5 and Glacier High School (collectively “the District”) on behalf of her minor son, K.B., alleging that K.B. was sexually assaulted in February 2022 on a bus returning from a school-sanctioned wrestling event.

    The District sought to exclude the testimony of Baldwin’s retained expert, Thom Luedemann, arguing its untimeliness and insufficiency. 

    Education & Schools Expert Witness 

    Thom Luedemann is experienced administrator who has spent many years working in the education management industry. He received his masters in education from the Northern Arizona University.

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

    Discussion by the Court

    The District pointed out several inadequacies in Baldwin’s expert disclosures, highlighting her counsel’s explicit noncompliance with Rule 26(a)(2)(B).

    The Scheduling Order stated Baldwin’s liability expert disclosures were due by September 13, 2024. On September 12, Baldwin provided the District with her “Notice of Expert Witnesses’ Designation,” noticing an intent to use unidentified treating “Medical and Mental Health Experts” and a single retained expert, Luedemann. Attached to that Designation was Luedemann’s CV. It was not until the District reached out to Baldwin’s counsel about the present motion that, on September 27, Baldwin provided Luedemann’s signed expert report, the contents of which are almost identical to the attorney-prepared Designation.

    The District accurately argued that Luedemann’s disclosure is insufficient because a signed report was not originally provided and neither the Designation nor Luedemann’s CV included the necessary information under Rule 26(a)(2)(B)(i), (ii), (iii), (v), and (vi). The District further claims that any attempt to supplement that disclosure now would be untimely. Baldwin’s response is limited to a single page stating that: (1) she provided the signed report as soon as the failure was noted and (2) she intends to supplement her disclosures following depositions of key witnesses despite the passage of the expert disclosure deadline.

    Failure to Provide a Timely, Signed Report

    Here, there is no dispute that Baldwin’s counsel failed to disclose a signed expert report by the deadline. There are also no facts upon which to find substantial justification. Thus, Baldwin’s only safe harbor is harmlessness. Weighing in Baldwin’s favor is the fact that counsel provided an expert report to the District three weeks later. And the District itself notes that the content of that report was consistent with that included in the attorney-prepared Designation.

    However, the fact that Baldwin’s counsel tried to fix this particular insufficiency is undermined by the fact that counsel knew at the time of the expert disclosure deadline that the expert would need to rely on the depositions of school officials that counsel failed to schedule prior to the deadline. As a result, Baldwin’s counsel knew the initial report was insufficient and supplementation of that report is not necessarily appropriate under Rules 26(e)(2).

    Insufficiency of the September 12 Designation

    Setting aside the absence of a separate report, neither the September 12 Designation nor Luedemann’s CV included the necessary information under Rule 26(a)(2)(B)(i), (ii), (iii), (v), and (vi). Indeed, Baldwin herself conceded that the Designation fails to provide “a complete statement of all opinions” Luedemann intends to give.

    She argued he needed to review the subsequent depositions, her counsel failed to take. Additionally, other than broad statements regarding “review of case notes,” the Designation does not identify “the facts or data considered by” Luedemann in forming his opinions.

    Nor does it identify the relevant exhibits as required by Rule 26(a)(2)(B)(iii). Luedemann’s CV does not list other cases he has been involved with, or state his compensation. Accordingly, the Court held that the September 12 disclosure failed to meet the requirements of Rule 26(a).

    Insufficiency of Luedemann’s Untimely Signed Report

    Finally, the District argued that Luedemann’s September 30 signed report is also deficient under Rule 26(a)(2)(B)(i), (ii), and (iii), and that he is not qualified to opine on K.B.’s emotional harm. 

    All Opinions

    Baldwin herself has stated that supplementation of the expert report is required in light of the September 2024 depositions. And apparently such supplementation has already occurred. The Court held that there is no real dispute that Luedemann’s September 30 report did not fully state his opinions and the basis for them.

    Facts of Data Considered

    In his signed report, Luedemann identifies the information he reviewed in preparing his opinion. Specifically, he stated that he reviewed the pleadings, “school policies on Title IX compliance and student supervision,” “statements from school officials involved,” “relevant federal and state guidelines on student safety and harassment prevention,” and “case notes and personal statements from Leslie Baldwin regarding her son’s experience with Kalispell School District, CPS, and other authorities, providing additional context to systemic issues.”

    The District argued that list is fatally deficient in that it does not include the Title IX investigation report or indicate that Luedemann has reviewed any other Title IX complaints so as to have a basis of comparison. The District is also concerned that Luedemann does not identify any of the underlying documents that would support his conclusions of, inter alia, a “documented hazing culture,” a “broader pattern of mishandling Title IX-related complaints,” and “numerous warning signs” of a “well-known hazing culture.”

    Ultimately, while Luedemann’s failure to consider the Title IX investigation report is fodder for a challenge under the Federal Rules of Evidence or for cross-examination, the Court held that it is not a clear Rule 26 disclosure problem. This may be a serious trial challenge for Baldwin as Luedemann’s failure to consider this central document is likely to fatally undermine his credibility. Although a closer question, the District’s other concerns fall in this same category. The vagueness of Luedemann’s references makes it difficult to determine what specific information he relied on in formulating his opinions.

    Exhibits

    Luedemann does not identify any exhibits he intends to use.

    Emotional Harm

    The District argued that Luedemann is not qualified or at least has not demonstrated his qualification to assess K.B.’s alleged emotional harm. Recognizing his extensive experience as a teacher and with school administration, the Court held that nothing in Luedemann’s CV or report indicated that he has specialized knowledge in juvenile mental health.

    Ultimately, the cumulative inadequacies in Baldwin’s disclosure regarding Luedemann are simply too many. Counsel’s failure to provide a timely and sufficient expert report under Rule 26(a)(2)(B) is therefore neither substantially justified nor harmless. The District’s request to exclude Luedemann as an expert is granted.

    Hybrid Expert Disclosures

    Although not raised by the District, Baldwin also has a serious problem as it relates to her disclosure of the treating physicians in the case. Her Rule 26(a)(2)(C) disclosure merely states:

    “Plaintiff reserved the right to elicit testimony from any and all of Plaintiff’s medical providers as “hybrid” fact/expert witnesses, to testify regarding any and all impressions, opinions and observations developed in the court and scope of their treatment of Plaintiff, as well as the information contained in their records, which have been previously provided to counsel, or which have been requested and will be provided. Plaintiff further reserves the right to elicit testimony of these witnesses for future treatment opinions to which they have already opined or to which they opine in the future in either their medical records and/or deposition testimony.”

    While this disclosure may be benevolently read to state the subject matter of the anticipated testimony, the Court held that it fails to provide a summary of the facts and opinions at issue. More fundamentally, it does not even identify the medical personnel at issue.

    Prior to exclusion, however, the Court will give Baldwin an opportunity to show that her failure was either substantially justified or harmless.

    Held

    The Court granted the District’s motion to exclude Thom Luedemann from testifying based on his inadequate disclosure.

    Key Takeaway:

    Neither the September 12 Designation nor Luedemann’s CV included the necessary information under Rule 26(a)(2)(B)(i), (ii), (iii), (v), and (vi). Indeed, Baldwin herself conceded that the Designation failed to provide “a complete statement of all opinions” Luedemann intended to give.

    Despite his extensive experience as a teacher and with school administration, nothing in Luedemann’s CV or report indicated that he has specialized knowledge in juvenile mental health.

    Case Details:

    Case Caption: Baldwin V. Kalispell School District #5 Et Al
    Docket Number: 9:23cv127
    Court: United States District Court, Montana
    Order Date: December 2, 2024
  • Pediatrics Expert Witness’ Opinion on Forceps-Assisted Vaginal Delivery Excluded

    Pediatrics Expert Witness’ Opinion on Forceps-Assisted Vaginal Delivery Excluded

    The present case involved a medical malpractice claim filed by Plaintiffs Tyler Grenier and Jenna Grenier, individually, and as the next friend of minor J.A.G., against the Defendant United States of America (“Defendant”). The Plaintiffs alleged medical negligence at Tripler Army Medical Center (“Tripler”) concerning prenatal care and labor provided to Plaintiff Jenna Grenier (“Jenna”) and the delivery of J.A.G. The claims included severe physical injuries sustained by Jenna and J.A.G., negligent infliction of emotional distress on Tyler and Jenna, loss of filial consortium, and Tyler’s loss of spousal consortium.

    In the current motion, the Defendant sought to strike the expert testimony of Ofer Levy, a pediatrics expert witness presented by the Plaintiffs. Defendant argued that Levy’s expert report was filed after the expert report deadline, as a rebuttal report, and that he had not been previously disclosed as an expert.

    The Plaintiffs filed their opposition on August 13, 2024, asserting that Levy’s report was timely because the rebuttal disclosure deadline had been extended to June 10, 2024, the same day his report was disclosed.

    Defendant replied on August 20, 2024, contending that Ofer Levy’s expert report is not a rebuttal report because it did not respond to any new information and it is an entirely new expert witness with new opinions that should have been disclosed by the expert witness disclosure deadline of March 11, 2024. 

    Pediatrics Expert Witness

    Pediatrics Expert Witness

    Ofer Levy is principal investigator, staff physician and the Director of the Precision Vaccines Program at Boston Children’s Hospital, Professor of Pediatrics at Harvard Medical School, and Associate Member of the Broad Institute of MIT and Harvard. 

    After graduating from the Bronx High School of Science and then Yale College (B.S., Molecular Biophysics & Biochemistry), Levy received his MD and PhD degrees from New York University. 

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

    Discussion by the Court

    Dispute Over the Nature of Ofer Levy’s Report

    The parties agreed that Ofer Levy’s report was filed within the deadline for rebuttal expert reports. However, they disagreed on whether the report qualified as a rebuttal or an initial expert report. The Court determined that the report was an initial expert report, not a proper rebuttal.

    Ofer Levy’s opinion stated that the forceps-assisted vaginal delivery caused the minor Plaintiff’s injuries and that a cesarean section should have been performed instead. He further opined that the perinatal injuries would have been avoided with a cesarean section. This opinion mirrored that of Plaintiffs’ obstetrics and gynecology expert witness, Adam V. Levy, who had similarly concluded that a cesarean delivery would have prevented the injuries.

    The Court found that Ofer Levy’s report went beyond providing a rebuttal. Instead, it sought to reinforce the opinions already expressed by Adam V. Levy. This was impermissible, as it did not respond to new evidence but rather bolstered the original expert report. The Court referenced Parenti v. Cnty. of Monterey, where a purported rebuttal was excluded because it merely reinforced the original expert’s opinions.

    Violation of Federal Rule of Civil Procedure 37(c)(1)

    Under Federal Rule of Civil Procedure 37(c)(1), if a party fails to disclose expert testimony as required, the Court may exclude the testimony unless the failure is substantially justified or harmless. The Court ruled that Ofer Levy’s failure to disclose his expert status and report by the deadline was neither justified nor harmless. Consequently, the Court determined that the appropriate sanction was to strike Levy’s expert testimony and report.

    Factors for Exclusion Sanction

    To decide whether exclusion was appropriate, the Court considered several factors:

    1. The public’s interest in the swift resolution of litigation.
    2. The Court’s need to manage its docket efficiently.
    3. The risk of prejudice to the Defendant.
    4. The public policy favoring the resolution of cases on their merits.
    5. The availability of less severe sanctions.

    The Court found that the first three factors supported exclusion. The untimely disclosure would cause delays, which weighed against the Plaintiffs. The fourth factor was neutral, as striking Levy’s report would not dispose of the case. Finally, the fifth factor supported exclusion because the Plaintiffs could still proceed with their claims and trial without Levy’s testimony. Therefore, the Court decided to strike Levy’s expert report and testimony.

    Held:

    The Court, in light of the aforementioned discussion, granted Defendant’s motion to strike Plaintiff’s pediatrics expert witness Ofer Levy’s expert report and testimony.

    Key Takeaway:

    The Court struck the expert testimony of Ofer Levy because his report, filed after the expert deadline, was deemed an initial expert report rather than a rebuttal. The Court found that Levy’s testimony merely reinforced the opinions of another expert, Adam V. Levy, instead of responding to new evidence. Since Levy’s untimely disclosure was neither substantially justified nor harmless, the Court ruled that his report and testimony should be excluded as a sanction under Federal Rule of Civil Procedure 37(c)(1).

    Please refer to the blogs previously published about this case:

    Case Details:

    Case caption: Grenier Et Al V. United States Of America
    Docket Number: 1:22cv396
    Court: United States District Court for the District of Hawaii
    Dated: November 17, 2024
  • Firearms & Ballistics Expert Witness’ Conclusions about how Bullets Behave Within the Body Admitted

    Firearms & Ballistics Expert Witness’ Conclusions about how Bullets Behave Within the Body Admitted

    Antoinette Tillman, Individually and as Adminstratrix of the Estate of George Homer Tillman III, brought this action on behalf of George Homer Tillman III against Defendants alleging excessive deadly force, as well as corresponding claims under New York state law, all stemming from a fatal police shooting that occurred on April 17, 2016. The Defendants opened fire on Tillman, killing him.

    In his expert report, Plaintiff’s expert David Balash criticized several conclusions reached by Kristen Landi, the medical examiner who conducted the autopsy of the decedent, George Tillman.  In particular, he disagrees with Landi regarding the source and trajectories of various bullets that struck Tillman. 

    Defendants have moved to preclude Balash’s expert testimony. On September 23, 2024, Defendants’ motion was granted in part—specifically, Balash was precluded from testifying as to the results of a test live firing exercise he witnessed, from which he attempted to ascertain the position of the firing officers by marking the locations where spent shell casings hit the ground.  The Court reserved decision on the core of Balash’s report—his opinions regarding the trajectories of the various bullets that struck Tillman—pending a Daubert hearing.

    At the Daubert hearing, Balash testified as to the bases for those opinions. He also opined, for the first time, that officers failed to properly maintain the scene of the shooting surrounding Tillman’s body during their investigation.  He described his conclusions as being based on videos disclosed by the Defendants to Plaintiff after discovery had closed, though he explained that those videos likely would not have affected his core conclusions.

    Following the hearing, the parties submitted letters supplementing their motion in limine briefing.

    Firearms & Ballistics Expert Witness

    David Balash has extensive practical experience examining shooting victims. He has worked in the field of forensic ballistics for over fifty years, first at various positions within the Michigan Department of State Police, then as an independent forensic consultant. Over this time, he has “examined hundreds of shooting victims at crime scenes, autopsies, hospitals and funeral homes” and has “used and interpreted X-rays at crime scenes, autopsies, and hospitals.” 

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

    Discussion by the Court

    Balash objected to Landi’s conclusion that bullet “A” entered Tillman’s skull, “struck the inner table of the skull with associated fractures of the right middle fossa of the base of the skull and changed direction upward and to the left to the right parietal and frontal lobes.” He opined that “bullets do not change directions to travel back along the same or virtually the same path without something extremely forceful causing that movement.” He concluded that, accepting Landi’s autopsy findings as true, “the only force capable of that change of direction would be a solid hard mass preventing the bullet in question from exiting the skull in the first place” and that “Tillman’s head had to have been against the pavement to explain this bullet’s flight path.”

    At the Daubert hearing, Balash clarified that he was not opining that Tillman’s head was, in reality, laying against the pavement when bullet “A” was fired—only that that was the only explanation consistent with Landi’s autopsy notes, which he considers flawed. 

    Qualifications

    The Court held that Balash’s years of experience examining shooting victims and X-rays qualifies him as an expert to dispute Landi’s conclusions regarding the trajectories of the bullets fired at Tillman. Defendants did not explain why Balash’s practical experience is insufficient to qualify as specialized knowledge regarding gunshot trajectories. Nor did they explain why a medical degree is required to qualify as an expert in this field.

    Reliability

    Balash’s testimony at the Daubert hearing has satisfied the Court that he reached his conclusions about how bullets behave within the body via reliable evidence and methods. Balash testified that he based his opinion—that “[b]ullets do not change directions to travel back along the same or virtually the same path” naturally within the body—on his accumulated experience examining hundreds of autopsies of shooting victims involving bullets of various calibers.

    Moreover, Balash’s testimony established that his inferences about bullet trajectories from the shape of the entry wounds, debris found on the decedent’s body around the entry wounds, and condition of the recovered bullets were reliably founded on his extensive history investigating shooting victims and crime scenes.

    Relevance

    With respect to Balash’s opinions articulated in his expert report on the propriety of the post-shooting investigation and evidence collection conducted by the NYPD and Landi, as the Court indicated at the September 23 conference, Balash may testify as to the specific criticisms he expressed in his report and at the Daubert hearing regarding how Landi’s autopsy procedure was conducted, so long as those criticisms inform his other opinions about why Landi’s conclusions regarding the sources and trajectories of the fired bullets are incorrect or suspect. The Court made it very clear that criticisms of the NYPD and Landi that do not bear on these conclusions, in contrast, are not relevant.

    Late Disclosure

    Finally, Balash’s opinions regarding how officers should have maintained the scene of the shooting for purposes of evidence preservation are precluded by the Court. If the observations in the videos affected Balash’s opinions, he could have supplemented his expert report anytime in the year since the plaintiff received them. The Court held that permitting him to testify as to a brand-new opinion not contained in his report on the eve of trial would run afoul of Federal Rule of Civil Procedure 26(a)(2)(B).

    Held

    The Court denied Defendants’ motion in limine to preclude Balash’s expert opinions about Landi’s conclusions regarding the trajectories of bullets fired at Tillman. However, the Court precluded Balash from offering opinions about the maintenance of the scene of the shooting that were not contained in his expert report.

    Key Takeaway:

    Balash was allowed to form his expert opinions via inferences from his extensive practical experience, and his failure to cite scientific studies regarding bullets’ behavior within the body did not render his opinion inadmissible. Balash based his opinion on his accumulated experience examining hundreds of autopsies of shooting victims involving bullets of various calibers.

    Case Details:

    Case Caption: Tillman V. The City Of New York Et. Al
    Docket Number: 1:18cv2211
    Court: United States District Court, New York Eastern
    Order Date: November 07, 2024
  • Late Service of Psychology Expert Witness’ Report Might Cause Severe Prejudice

    Late Service of Psychology Expert Witness’ Report Might Cause Severe Prejudice

    Plaintiff, Rudolph Mills filed this action against Defendant, Steuben Foods, Inc., alleging employment discrimination based on race after numerous complaints about shocking and wildly inappropriate racial slurs used against him by supervisors and managers.

    Defendants moved, pursuant to Fed.R.Civ.P. 16(f)(1)(C), 26(a)(2)(A), (D), 37(c)(1)(C), for an order striking the expert report of Mark D. Lerner, PhD. Alternatively, Defendants requested the Court award Defendants’ expenses which may be incurred to counter Lerner’s opinions, including any costs
    Defendants incur in connection with taking Lerner’s deposition.

    Plaintiff e-mailed Defendants a copy of a Confidential Psychological Report prepared by Lerner who was also expected to testify concerning Plaintiff’s alleged psychological and emotional distress Plaintiff suffered as a result of the alleged discriminatory conduct of Defendants. According to the report, Lerner examined Plaintiff on December 9, 2023 and issued the report on December 10, 2023.

    Plaintiff’s opposition is based on Plaintiff’s assertion that a dispute between Plaintiff’s counsel and one of Plaintiff’s other expert which “resulted in [a] delay of production of the expert report” does not warrant striking Lerner’s report and preclusion.

    Psychology Expert Witness

    Mark D. Lerner, Ph.D. is a clinical and forensic psychologist with over 35 years of experience helping people through challenging times. He sees individuals, couples, and families in his office in Melville, New York, and works with clients virtually online.

    Moreover, as chairman and CEO of The National Center for Emotional Wellness, Inc., Lerner provides practical information, training, and support for organizations, corporations, educational institutions, healthcare providers, and emergency responders worldwide.

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

    Discussion by the Court

    The Court held that this reason for non-compliance fails to explain why Plaintiff’s counsel failed to secure a different psychological expert, presumably Lerner, prior to the deadline for Rule 26(b)(2) expert disclosure.

    To begin with, Plaintiff’s delay is not harmless as failing to strike Lerner’s report and preclude his expert testimony would necessitate granting Defendants an opportunity to secure a rebuttal expert who would need to interview Plaintiff thereby further prolonging the trial. Specifically, Lerner’s testimony would be limited to the question of Plaintiff’s damages, not Defendants’ liability, and, as such, is not critical to Plaintiff’s case. Moreover, the Defendants will be severely prejudiced by having the jury hear unrebutted expert testimony that Defendants’ racial slurs caused Plaintiff to suffer emotional distress.

    Finally, the Court saw that Plaintiff also failed to establish good cause required by Rule 16(b), for excusable neglect.

    Defendants also requested the Court, pursuant to Rule 37(c)(1)(A), award Defendants’ expenses in connection with taking Lerner’s deposition, or alternatively, pursuant to Rule 16(f) or Rule 37(c)(1)(A), Defendants’ expenses incurred in connection with bringing the instant motion.

    The Court decided that responsibility for the late service of Lerner’s report is solely attributable to Plaintiff’s counsel’s complete disregard of the deadline for service of Plaintiff’s expert report. Therefore, such responsibility should be assigned to Plaintiff’s counsel, Seamus P. Barrett, Esq. and the Derek Smith Law Group, PLLC, and not Plaintiff, should the Court award Defendants’ attorneys fees incurred in making the instant motion pursuant to Rule 16(f)(1)(C).

    Held

    The Court granted the Defendants’ motion to strike and preclude the report of Plaintiff’s expert Mark D. Lerner.

    Key Takeaways:

    The party that failed to comply with its discovery obligations bears the burden of proving that its failure was both substantially justified. Plaintiff’s delay is not harmless as failing to strike Lerner’s report and preclude his expert testimony would necessitate granting Defendants an opportunity to secure a rebuttal expert who would need to interview Plaintiff thereby further prolonging the trial.

    Moreover, harmlessness means an absence of prejudice. However, Defendants will be severely prejudiced by having the jury hear unrebutted expert testimony that Defendants’ racial slurs caused Plaintiff to suffer emotional distress

    Case Details:

    Case Caption: Mills V. Steuben Foods, Incorporated Et Al
    Docket Number: 1:19cv1178
    Court: United States District Court, New York Western
    Order Date: September 18, 2024
  • Neuropsychology Expert Witness’ Opinion on Future Care Excluded

    Neuropsychology Expert Witness’ Opinion on Future Care Excluded

    This matter arises out of a medical malpractice action filed by Plaintiffs Tyler Grenier, individually, and Jenna Grenier, individually and as next friend of J.A.G., a minor, (collectively “Plaintiffs”) against Defendant United States of America (“Defendant”) for alleged medical negligence at Tripler Army Medical Center (“Tripler”) related to the medical care by Defendant’s employees for prenatal care and labor of Plaintiff Jenna Grenier (“Jenna”), and the subsequent delivery of J.A.G.

    Severe physical injuries sustained by Jenna Grenier and J.A.G. are alleged as well as the negligent infliction of emotional distress to Plaintiff Tyler Grenier (“Tyler”) and Jenna; Plaintiffs’ loss of filial consortium; and Tyler’s loss of spousal consortium.

    Defendant filed a motion to exclude the expert report and testimony of Plaintiffs’ expert witness, Jeri Morris, Ph.D., because she is not qualified to render opinions regarding the cause of the Minor Plaintiff’s brain injury and the applicable standard of care, and because her opinions are unreliable.

    Neuropsychology Expert Witness

    Jeri Morris has been in clinical practice for nearly 30 years, focusing on evaluating and treating those with neurological disorders and disabilities. She has been extensively involved in studying issues related to brain injury, PTSD, cognitive rehabilitation, and other areas of neuropsychology. Her work extends to training students of psychology, and being in a continuous state of study herself – regularly involved in research, publishing for peer-reviewed journals, and increasing her knowledge in this rapidly evolving field of science.

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

    Discussion by the Court

    Morris provided a neuropsychological evaluation in her expert report. In her report, she stated the medical records that she reviewed, her interviews with Jenna and Tyler, the tests administered, the results of standardized testing, her observations of the Minor Plaintiff, and her impressions. Defendant did not dispute Morris’s qualifications as a neuropsychologist, nor does it raise an objection as to the tests she administered. Defendant objected to Morris giving opinions as to causation and standard of care rendered to the Minor Plaintiff. Plaintiffs affirmatively represented that Morris is not an expert witness who will render expert opinions as to the cause or causes of the Minor Plaintiff’s injuries nor regarding the standard of care of the medical practitioners involved in the birth and care of the Minor Plaintiff. 

    The Court did not permit Morris to give opinion testimony about causation and standard of care but allowed her to testify about the tests she administered to the Minor Plaintiff, and the results of those tests.

    Morris provided her “impressions” and included a widely sweeping comment about the Minor Plaintiff’s future care: “Given the extensive nature of his impairments and his current profile, he can be expected to have significant cognitive, social, and other deficits and require assistance and the close availability of supervision by a trained caregiver throughout his lifetime on a 24-hour basis.”

    The Court held that this statement regarding the Minor Plaintiff’s limitations and future care is not supported by identifiable principles and methodology and therefore did not meet the requirements of Rule 702.

    Held

    The Court limited the testimony of Plaintiff’s expert Jeri Morris.

    Key Takeaway:

    The Court excluded Morris’ opinions on causation and standard of care because she is not qualified to render opinions in these areas, and as to her opinion on future care because she failed to provide a basis for the opinion. Morris, however, is permitted to testify about the tests that she administered to the Minor Plaintiff and the test results.

    Please refer to the blogs previously published about this case:

    Case Details:

    Case Caption: Grenier Et Al V. United States Of America
    Docket Number: 1:22cv396
    Court: United States District Court for the District of Hawaii
    Order Date: September 11, 2024
  • Economics Expert Witness’ Testimony Admitted Because He Has Researched CON Laws

    Economics Expert Witness’ Testimony Admitted Because He Has Researched CON Laws

    Charles Slaughter is a licensed physical therapist who owns a physical therapy clinic in Jackson, Mississippi. He brought this constitutional challenge to Mississippi’s Certificate of Need (CON) program because Mississippi has had a moratorium on issuing CONs to new home health care businesses for the past 42 years.

    This case was initiated in the wake of the COVID-19 pandemic. Slaughter hoped to expand his business and offer in-home physical therapy to homebound patients during the pandemic. He says he was blocked from doing so. A set of Mississippi laws requires health care facilities to apply and receive a state-issued CON before opening, expanding, relocating, changing ownership, or even acquiring major medical equipment. Even if he were able to successfully apply and meet the requirements for approval of a CON, the Board of Health has made no recommendation to lift the moratorium as to at-home health facilities.

    Slaughter alleged that the CON regime violated the equal protection and substantive due process clauses of the United States and Mississippi Constitutions.

    Slaughter retained Dr. Thomas Stratmann as an expert witness and utilized Stratmann’s opinions to support his allegation that the CON laws and moratoria do not lower consumer costs, increase access to care, or increase the quality of care.

    Mississippi Association for Home Care (MAHC) is a nonprofit whose members are licensed home health agencies that serve Mississippians. MAHC filed a motion to exclude Stratmann as Slaughter’s expert witness, claiming their long-established economic interests as CON holders, as well as care to indigent patients, would be impaired.

    Economics Expert Witness

    Thomas Stratmann holds a Ph.D. in economics from the University of Maryland.  He is a Distinguished University Professor at Mason and holds an appointment as Professor of Economics at the Department of Economics and has a courtesy appointment at the Antonin Scalia Law School. 

    He has also coauthored policy briefs on CON laws, testified about CON laws before two state legislatures and served as an expert in five other lawsuits.

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

    Discussion by the Court

    MAHC took numerous exceptions to Stratmann’s report. It argued that he is not a health care expert but rather an economist who has only worked in academia and presents “one-sided advocacy for free markets.” Additionally, MAHC argued Stratmann’s report is not helpful in determining if a rational basis existed at the time the CON laws were created because he bases his opinions on information after the enactment of the Mississippi home health CON laws.

    MAHC also challenged the materials Stratmann used to create his report. It argued that while Stratmann’s report focuses on articles related to home health care costs, the report often ignores significant markers of success in home health care such as improvements in patients ADL’s.

    MAHC took particular issue to the fact that Stratmann focused primarily on national information instead of Mississippi specific data from the Centers for Medicare and Medicaid Services (“CMS”). It says this shows that he lacks the fundamental knowledge of and experience with the services provided by home health agencies.

    The Court found Stratmann qualified due to his “knowledge, skill, experience, training or education.” While an economist, he focused on CON laws and has both researched and written extensively on the topic. The Court disagreed with MAHC’s contention that Stratmann’s opinions “are not helpful in determining any material issues in this case.”

    Defendants will have the opportunity to vigorously cross examine Stratmann on the facts and methods he relied on in forming his conclusions. Cross examination specific to the lack of CMS and Mississippi data in his report will be helpful to the Court, however, at this point the Court does not believe these claims alone are reason to exclude Stratmann.

    Held

    The Court denied MAHC’s motion to exclude Dr. Thomas Stratmann’s expert report.

    Key Takeaway:

    The Court is primarily concerned with MAHC’s contentions that “all of Stratmann’s opinions … are not based on sufficient facts and data” and that he “failed to consider or address the relevant Mississippi-specific facts and data in forming his opinions regarding improvements of health, quality, accessibility, acceptability and continuity of care.” However, Stratmann admittedly does research CON laws across the country, and this Court believes the national context and background on CON laws more likely than not will be beneficial to it during the bench trial.

    Case Details:

    Case Caption: Slaughter V. Dobbs
    Docket Number: 3:20cv789
    Court: United States District Court, Mississippi Southern
    Order Date: September 11, 2024
  • Credit Reporting Expert Witness’ Testimony About Actual Damages Sustained by Plaintiff Excluded

    Credit Reporting Expert Witness’ Testimony About Actual Damages Sustained by Plaintiff Excluded

    Plaintiff, Noah Ford rented an apartment in Colorado. He signed a Lease Agreement and additional lease documents and moved into the apartment on or about September 3, 2020. On or about July 4, 2021, Ford signed another Lease Agreement and additional lease documents to rent the same apartment for an additional year, for the period August 2, 2021 to August 1, 2022. On or about September 2, 2021, Ford gave notice that he intended to move out and did move out of the apartment. However, pursuant to the terms of the first Lease Agreement, and the second Lease Agreement, and as a result of his breach of such terms, Ford owed payment for the remainder of the lease term, along with additional other charges.

    Ford failed to pay any part of the balance due, and the account was assigned to Defendant I.Q. Data for collection. I.Q. Data also marked the account as disputed for all purposes, including credit reporting. This disputed status remains on the account to date.

    As a result of re-renting the apartment, the landlord later revised the balance due. As a result of identifying a duplicate entry, the landlord later revised the balance again. The current principal balance is $12,215.38, and that amount remains due. Ford purports to have disputed the debt with each CRA.

    Plaintiff’s proposed expert, Thomas Tarter, sought to offer opinions on (1) whether Defendants violated the Fair Debt Collection Practices Act (“FDCPA”); (2) whether Defendants violated the Fair Credit Reporting Act (“FCRA”); and (3) whether Plaintiff was damaged by the conduct of Defendants.

    Defendant filed a motion to exclude the expert testimony of Tarter.

    Credit Reporting Expert Witness

    Thomas Tarter is the Managing Director of The Andela Consulting Group, Inc. (“ACG”), banking, business, credit industry, management and corporate finance consulting firm. He has more than 50-years of experience in commercial and consumer credit reporting, debt collection, credit origination, dispute resolution industry customs, standards and practices and credit damages.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Thomas Tarter’s expert testimony. 

    Discussion by the Court

    The Court held that Tarter is not qualified to testify about the legal standards of, alleged violations of, or defenses to, the Fair Debt Collection Practices Act and Fair Credit Reporting Act.

    In his expert report, Tarter admitted he had could not provide an estimate of Ford’s economic credit damages, the value of Ford’s lost sleep, or the value of time and energy Ford spent to correct his credit, because Tarter had not reviewed any supporting documentation. In his deposition, Tarter conceded he had not reviewed any discovery at the time of his report concerning Defendant’s policies on providing information to credit reporting agencies or how Defendant investigates disputed debts and claims of inaccurate reporting.

    Ford stated that, at trial, Tarter will not quantify or assign a dollar value to Ford’s credit stigma, chilling, credit availability, credit expectancy, employment, or impact of a lower credit score. The Court excluded Tarter’s testimony about actual damages sustained by Ford and sought to exclude any testimony from Tarter regarding topics not set forth in either his expert report or deposition testimony.

    However, Tarter has significant experience working in the financial and credit reporting industry, such as involvement in debt collection practices and seeking loan approvals involving personal lines of credit. The Court believed that this experience provides him with a reliable basis from which he may opine on these topics.

    Held

    The Court limited the testimony of Plaintiff’s expert Thomas Tarter.

    Key Takeaway:

    Even thought Tarter admitted he had could not provide an estimate of Ford’s economic credit damages, the value of Ford’s lost sleep, or the value of time and energy Ford spent to correct his credit, because Tarter had not reviewed any supporting documentation, his only saving grace remains his extensive experience.

    Case Details:

    Case Caption: Ford V. Iq Data International Inc Et Al
    Docket Number: 2:22cv1791
    Court: United States District Court, Washington Western
    Order Date: September 05, 2024

     

  • Radiology Expert Witness Barred From Testifying for Failing to Provide the Court With a Report

    Radiology Expert Witness Barred From Testifying for Failing to Provide the Court With a Report

    Plaintiff, Wendy Marie Henshaw alleged that she slipped and fell on a liquid substance on Defendant Wal-Mart’s premises on October 28, 2021.

    Henshaw filed a motion to strike Defendant’s expert witness Dr. Marc Fredric Glickstein. Henshaw noted that Defendant timely served its expert witness disclosure and listed Glickstein as an expert in diagnostic radiology; however, Defendant did not provide Plaintiff with Glickstein’s report. 

    Defendant contended that Glickstein has not yet prepared a report. Since Defendant is in the process of obtaining records and diagnostic studies for his review, the report will be provided to Plaintiff once it is completed.

    Radiology Expert Witness

    Marc Glickstein, MD, FACR, is a partner in a large private practice radiology group, on the senior medical staff of 8 area hospitals, and an assistant clinical professor of Radiology at University of CT School of Medicine. He has over 27 years of active clinical involvement in Neuroradiology, as well as General Radiology including MRI, Mammography, CT, and Ultrasound.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Marc Glickstein’s expert testimony.

    Discussion by the Court

    Rule 26 clearly states that, “Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness.” Rule 37 makes it clear that the party that failed to comply with Rule 26(a) bears the burden of establishing that its non-disclosure was either substantially justified or harmless.

    The Court held that Defendant has both failed to comply with Rule 26(a) and failed to show that its non-disclosure was either substantially justified or harmless. Consequently, Defendant will be prohibited from using Glickstein to supply evidence on a motion, at a hearing, or at trial.

    Held

    The Court granted Plaintiff Wendy Marie Henshaw’s motion to strike Defendant’s expert, Dr. Marc Frederic Glickstein. Consequently, Glickstein was stricken from Defendant’s expert witness disclosure.

    Key Takeaway:

    Despite timely serving its expert witness disclosure, Defendant did not provide Plaintiff with Glickstein’s report. Defendant also failed to show that its non-disclosure was either substantially justified or harmless.

    Case Details:

    Case Caption: Henshaw V. Wal-Mart Stores East, LP
    Docket Number: 6:23cv2388
    Court: United States District Court, Florida Middle
    Order Date: July 11, 2024
  • Obstetrics and Gynecology Expert Witness Barred from Testifying About Plaintiff’s Expressed Desire for Cesarean Delivery

    Obstetrics and Gynecology Expert Witness Barred from Testifying About Plaintiff’s Expressed Desire for Cesarean Delivery

    This matter arises out of a medical malpractice action filed by Plaintiffs Tyler Grenier, individually, and Jenna Grenier, individually and as next friend of J.A.G., a minor, (collectively “Plaintiffs”) against Defendant United States of America (“Defendant”) for alleged medical negligence at Tripler Army Medical Center (“Tripler”) related to the medical care by Defendant’s employees for prenatal care and labor of Plaintiff Jenna Grenier (“Jenna”), and the subsequent delivery of J.A.G.

    Severe physical injuries sustained by Jenna Grenier and J.A.G. are alleged as well as the negligent infliction of emotional distress to Plaintiff Tyler Grenier (“Tyler”) and Jenna; Plaintiffs’ loss of filial consortium; and Tyler’s loss of spousal consortium.

    In the instant motion, Defendant sought to exclude certain portions of opinions rendered by Plaintiffs’ expert witness, Dr. Adam Levy, M.D., because: his opinions regarding estimated fetal weight are unreliable; his opinions regarding Jenna’s operative delivery and using forceps resulting in excessive force are unreliable; his opinions about obtaining Jenna’s informed consent are unreliable; his opinions that Justin Pilgrim, D.O., and Asha Mada, D.O., were unqualified or incompetent are unreliable; his opinions that the medical care rendered to repair Jenna’s laceration injury are unreliable; and his opinions about the cause of the Minor Plaintiff’s injuries are unreliable and his deference on causation to a neonatologist acknowledged his lack of expertise.

    Obstetrics and Gynecology Expert Witness

    Dr. Adam Levy is a board-certified obstetrician gynecologist and has been a Fellow of the American College of Obstetrics and Gynecology since 1993. During his service in the Air Force he served as an OB/GYN specialist. He currently supervises and instructs residents in a high-risk pregnancy population labor and delivery.

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

    Discussion by the Court

    Plaintiffs argued that Levy’s opinion that Defendant’s physicians failed to appreciate the risk for delivery complications because pre-delivery fetal growth was beyond the norm comports with accepted medical literature and therefore his opinion that the physicians who chose to deliver with forceps fell below the standard of care is reliable. As to Levy’s opinions regarding operative vaginal delivery, Plaintiffs argued that they are based on medical records and literature, and thus reliable.

    Plaintiffs argued that Levy’s opinion that Jenna was not given a meaningful choice as to the method of delivery is “consistent with the modern standards of the medical community, his own deposition testimony, and thus [is] reliable and should not be excluded.” As to Levy’s opinions regarding the standard of care provided by Pilgrim and Mada in proceeding with forceps delivery, Plaintiffs pointed to his education, work and training in the area of high-risk obstetrics in a teaching hospital as qualifying him to render his opinions and submit that qualifications go to weight and not admissibility.

    As to Levy’s opinion that the repair of the perineal laceration was done incorrectly, Plaintiffs submit that he is qualified to opine on the repair based on his education, training and experience. Plaintiffs submit that Levy’s opinions “regarding the traumatic birth being the cause of injuries to J.A.G. and his mother” are based on risks identified in medical literature and thus reliable.

    Levy opined that “[t]he breaches of the standard of care of [J.A.G.] has caused brain damage” and that “cesarean delivery would have prevented both the newborn birth injuries and maternal injuries in this case.”

    Levy’s opinions relate to the issue of medical standard of care

    Defendant did not challenge Levy’s opinions as being irrelevant nor that he lacks qualification in the field of obstetrics and gynecology. The Court ruled that Levy’s opinions relate to the issue of medical standard of care. If he has misconstrued the medical records, or his analysis is otherwise shaky, then pointing out any such failures is appropriate for cross-examination and not exclusion where the expert’s qualifications and relevance of his opinions are not in issue. However, because Levy has deferred to a neonatologist as to the cause of the minor Plaintiff’s injuries, the Court believed that he is not qualified to render opinion testimony that the physicians’ breaches of the standard of care for the minor Plaintiff “has caused brain damage among the multitude of injuries that are currently being treated and will require further treatment far into the foreseeable future[,]” and that opinion is excluded.

    As for his opinion regarding Jenna’s statements about whether she gave informed consent; the Court held the information to be factual because it did not require the assistance of an expert as required by Rule 702. The Court also excluded his opinion about Mada’s motivations. His conclusion that Jenna’s expressed desire for cesarean delivery was also ignored, was considered speculative at best.

    Held

    The Court granted in part and denied in part the Defendant’s motion to exclude the expert report and testimony of Dr. Adam Levy, M.D.

    Key Takeaway:

    Defendant did not challenge Levy’s opinions as being irrelevant nor that he lacks qualification in the field of obstetrics and gynecology. However, because Levy has deferred to a neonatologist as to the cause of the minor Plaintiff’s injuries, the Court believed that he is not qualified to render opinion testimony that the physicians’ breaches of the standard of care for the minor Plaintiff is the cause of brain damage.

    Please refer to the blog previously published about this case: Obstetrics and Gynecology Expert Witness’ Opinions Admitted Because they Pertain to the Issue of Medical Standard of Care

    Case Details:

    Case Caption: Grenier Et Al V. United States Of America
    Docket Number: 1:22cv396
    Court: United States District Court, Hawaii
    Order Date: September 5, 2024

  • Court Finds No Statement in the Marketing Expert Witness’ Survey to be Misleading

    Court Finds No Statement in the Marketing Expert Witness’ Survey to be Misleading

    The underlying case concerns the alleged release of toxic chemicals from a manufacturing facility in Canoga Park between 1968 and 1970 by Litton Systems, Inc., an entity now owned by Defendants Northrop Grumman Corporation and Northrop Grumman Systems Corporation (“Northrop Grumman”). Plaintiffs moved for class certification on their claims for negligence, private nuisance, and trespass relating to the contamination. 

    Defendants submitted an expert report by Dr. Dominique Hanssens purporting to show, among other things, that class members’ homes contained other potential sources of the relevant toxins—sources unrelated to the contamination from Litton’s manufacturing facility—such as common household cleaning products. 

    To reach this conclusion, Hanssens designed and conducted a survey sent by mail to homes in Plaintiffs’ Proposed Class Area (“PCA”). 

    Marketing Expert Witness

    Dominique Hanssens is a Distinguished Research Professor of Marketing at the UCLA Anderson Graduate School of Management. He has served as the school’s faculty chair, associate dean, and marketing area chair. From 2005 to 2007 he served as executive director of the Marketing Science Institute in Cambridge, Massachusetts.

    Hanssens studied econometrics at the University of Antwerp in his native Belgium. He then obtained an M.S. and Ph.D. in marketing from Purdue University. His research focuses on strategic marketing problems, in particular marketing productivity, to which he applies his expertise in data-analytic methods such as econometrics and time-series analysis.

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

    Discussion by the Court

    Plaintiffs argued that Defendants tricked and coerced putative class members into responding to the survey—designed to undermine class certification—by including a two-dollar bill that was visible through the envelope window and giving survey respondents a $20 Walmart gift card. Additionally, according to Plaintiffs, Hanssens should have disclosed to participants that Northrop Grumman was sponsoring the survey and that the respondents could be undermining their legal position by responding.

    Since the survey itself appeared to be facially neutral and created in accordance with accepted principles, the survey did not require the Court to take the corrective actions Plaintiff seeks.

    Plaintiffs pointed to no statement that is likely to leave respondents with a false impression of the litigation or cause respondents to abandon their legal rights. And the Court found no statement in the survey to be clearly misleading or coercive. For example, the Court is not overly troubled with the statements that the recipient was sent the survey as a “resident of the greater Los Angeles area” or that “the results of this survey will not be used to try to sell you anything” and would be “kept in confidence.”

    The Court believes that although Plaintiffs can come up with a misleading interpretation of these statements, they simply do not rise to the level of deception that would convince the Court to restrict the parties’ speech rights. Nor are they the type of statements that would enable the Court to craft a narrowly-tailored restriction on speech.

    Held

    The Court denied Plaintiffs’ motion to strike the expert report of Dominque Hanssens.

    Key Takeaway:

    Rule 23(d) gives the Court the power “to impose limitations when party engages in behavior that threatens the fairness of the litigation.” For example, courts have found that limitations are necessary in the wake of ex parte communications “soliciting opt-outs” or “discouraging participation in a case.” In contrast to these cases, Hanssens’ survey here was “facially neutral, did not require the participants to waive any of their rights in this litigation, and was conducted pre-certification when Defendants may generally gather information about the putative class.”

    Case Details:

    Case Caption: Jed Behar Et Al V. Northrup Grumman Corporation Et Al
    Docket Number: 2:21cv3946
    Court: United States District Court, California Central
    Order Date: August 12, 2024