Expert Witness Profiler

Tag: Healthcare

  • Expert Testimony on Medical and Prescription Expenses Admitted

    Expert Testimony on Medical and Prescription Expenses Admitted

    Plaintiff Vicenta Vega was allegedly injured when she slipped on water that had accumulated on the floor of a Ross Stores retail store. She sought damages for past and future medical expenses, past and future pain and suffering, past and future physical impairment, past and future scarring and disfigurement, and lost earning capacity.

    Ross Stores designated Patrice Morin-Resch as an expert witness. Her report provided “charge benchmark data,” which she described as “actual medians of ʻcharges’ that doctors and other medical providers have submitted to thirdparty payers and shows how these compare to what the providers have invoiced to the Plaintiff.”

    She explained that she used “Context 4 Healthcare data to compare charges made by physicians, chiropractors, outpatient facilities, and hospitals” and that, for medications, she uses GoodRx or Drugs.com. The Context 4 Healthcare data comes “from various clearinghouses that collect the charge information after it is sent from the provider before it is dispatched to a third-party payer,” and Morin-Resch narrowed the data by service date, zip code, and medical code.  She explained that her “work is not limited to merely uploading the Context 4 Healthcare comparative fees into a spreadsheet”; she analyzed and compared the billing codes used in medical documentation to determine whether they are correct. 

    She provided a report that reflected different percentiles showing how much medical providers billed for the same service in the same year and geographic location.  As she explained, 50 percent of providers charge equal to or less than the 50th-percentile dollar amount; 60 percent of providers charge equal to or less than the 60th-percentile dollar amount, and so on. The report also included the amount that Medicare paid for those services.

    Plaintiff Vicenta Vega filed a motion to strike the testimony of Morin-Resch.

    Medical Billing Expert Witness

    Patrice Morin-Resch has authored textbooks on medical billing and coding, edited the American Medical Association’s CPT® (Current Procedural Terminology) codebook, and trained thousands of people on the use of CPT® coding. 

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Patrice Morin-Resch’s expert testimony.  

    Discussion by the Court

    The report included Morin-Resch’s opinion as to whether the amounts billed by twelve of Vega’s providers were usual, customary, and reasonable when compared with the data compiled from Context 4 Healthcare, Medicare, GoodRx, and Drugs.com.

    Vega argued that Morin-Resch’s proposed testimony is irrelevant and based on unreliable data and methodology because it relied on data from Context 4 Healthcare, Inc., Medicare, GoodRx, and Drugs.com and applied a percentile-based methodology to determine the reasonableness of charges.

    In response, Ross Stores argued that the data supporting Morin-Resch’s proposed testimony is relevant and reliable and that her methodology reflected her knowledge and expertise. Although Ross Stores spent much of its response reiterating Morin-Resch’s qualifications as an expert, Vega did not challenge her proposed testimony on that basis.

    Relevance

    Vega argued that Morin-Resch’s opinion, which relied on data from Context 4 Healthcare, Medicare, GoodRx, and Drugs.com, is not relevant because Ross Stores cannot show that Vega had access to services or medications at those prices or that prices available through discount programs are the “benchmark” for reasonableness. Vega specifically asserted that she was not eligible for Medicare and that she did not have a Drugs.com discount card.

    However, the Court held that Morin-Resch’s opinion about the reasonableness of charges, based on aggregated data from Context 4 Healthcare, Medicare, Drugs.com, and GoodRx and combined with her own knowledge of billing practices, is relevant to the amount Vega may recover for her medical expenses. That is true even if Vega personally could not access services or
    medications at the prices charged to other customers.

    Reliability

    Vega argued that Ross Stores cannot show that Morin-Resch reviewed the data underlying the Context 4 Healthcare reports or that the data has been peer-reviewed or relied on by others to establish usual, customary, and reasonable charges for medical care.

    Ross Stores argued that Morin-Resch reviewed the Context 4 Healthcare data to prepare her report and that its data has been used by hundreds of healthcare organizations over the course of decades. Morin-Resch’s report confirmed that she reviewed the report provided by Context 4 Healthcare. According to the Court, her review of the data underlying the report is not determinative of the reliability of her testimony based on that report.

    Methodology

    Vega challenged Morin-Resch’s conclusion that charges exceeding the 80th percentile are not reasonable because, in her view, there is an insufficient basis to draw the line between reasonable and unreasonable at 80%.

    Ross Stores argued that Vega mischaracterized Morin-Resch’s opinion and overlooked the value added by her expert analysis. It pointed to Morin-Resch’s assessments of the billing codes used by Vega’s medical providers, which allowed her to provide additional commentary on how those providers billed. It also noted that Morin-Resch did not reach a blanket conclusion that bills were unreasonable because they exceeded the 80th percentile; instead, she discussed each service billed and compared it to the percentiles, noting that one provider billed 2.33 times the 80th percentile for similar services.

    Morin-Resch’s report supported Ross Stores’ position. Morin-Resch’s methodology entailed downloading data from Context 4 Healthcare; filtering it by date, location, and billing code; and extrapolating percentiles from the results. Morin-Resch then analyzed the billing codes used by Vega’s providers, compared them to documentation showing the care Vega actually received, and made corrections as necessary to the billing codes that should have been applied. Morin-Resch then compared the prices charged to Vega with prices charged for the same services, as reflected by the Context 4 Healthcare data. While Vega may be able to criticize the report when it is presented to the jury, the Court held that she cannot show that Morin-Resch employed “no methodology.”

    Held

    The Court denied Vega’s motion to strike the testimony of Ross Stores, Inc.’s expert witness Patrice Morin-Resch.

    Key Takeaway:

    Daubert’s “general acceptance” factor goes to whether a theory or technique is reliable. “A proponent need not prove to the judge that the expert’s testimony is correct,” but only that it is based on reliable methods. That means it does not matter, at this stage, whether Morin-Resch is correct that a given charge for a medical service is unreasonable. What matters is how she reached that conclusion, and her report makes that sufficiently clear.

    Case Details:

    Case Caption: Vega V. Ross Stores Inc., Et Al.
    Docket Number: 4:24cv733
    Court Name: United States District Court, Texas Eastern
    Order Date: September 08, 2025
  • Law Enforcement Expert’s Testimony Regarding the Standard of Care in an Involuntary Detention Setting Admitted

    Law Enforcement Expert’s Testimony Regarding the Standard of Care in an Involuntary Detention Setting Admitted

    This case arises out of Plaintiff Gregory Palm’s claim that he received deficient medical care while incarcerated in the Jones County Jail and Baldwin County Detention Center.

    Sheriff Butch Reese, Captain Shane Moody, Lieutenant Brent Skinner, and Lieutenant Dalton Hart (hereinafter “Defendants”) disclosed Kathryn Wild and Paul Cappitelli as expert witnesses. Plaintiff Gregory Palm filed a motion to exclude the testimony of these witnesses.

    Nursing Expert Witness

    Kathryn Jean Wild has extensive experience working alongside, supervising, and training correctional officers regarding their responsibilities and duties as they relate to the provision of healthcare in a correctional facility.

    Wild is a registered nurse with a bachelor’s degree in health services management and a master’s in public administration. She has worked in the field of correctional healthcare for forty years and has been certified as a correctional healthcare professional since 1991.

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

    Law Enforcement Expert Witness

    Paul A. Cappitelli is a career law enforcement officer with extensive experience working in administration, patrol, custody, homicide investigation, public affairs, and gang enforcement.

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

    Discussion by the Court

    Expert Testimony of Kathryn Wild

    Palm asserted that Wild is not qualified to opine about the conduct of jail correctional officers because she is a nurse and not a correctional officer herself.

    Wild is a registered nurse who has worked in the correctional healthcare setting for nearly forty years. She worked as a nurse in five correctional facilities, then went on to serve as the health services administrator for San Bernardino County, California, and the deputy agency director for correctional health services for Orange County, California. In her supervisory roles for San Bernardino County and Orange County, she was responsible for the oversight and training of non-medical staff such as corrections officers regarding the provision of healthcare services and she developed and implemented the healthcare policies that governed correctional facility employees.

    She now operates a consulting business in which she assists in training correctional facility staff, including correctional officers, on their responsibilities relating to the provision of healthcare for inmates and detainees. 

    The Court found that Wild is qualified to opine on the conduct of correctional officers in this action. While she may not be a correctional officer, Wild is familiar with (and has even participated in the creation of) standards governing the involvement of correctional officers in the provision of healthcare to detained individuals. She has first-hand experience training such officers on how they should provide healthcare to those in their custody. Wild’s knowledge and experience concerning the standards for correctional officers’ responsibilities relating to healthcare rendered her qualified to offer expert testimony in this action. 

    Having found that Wild was qualified to provide expert testimony on the subjects explained hereinabove, the Court found unpersuasive Palm’s argument that Wild’s testimony would be unreliable and unhelpful to the trier of fact.

    Expert Testimony of Paul Cappitelli

    Palm argued that Paul Cappitelli’s testimony should be excluded because it will not help the trier of fact understand the evidence or determine a fact at issue.

    Cappitelli is a career law enforcement officer who opines that the jail staff in this action “were attentive and conscientious in their interactions with Palm” and “arranged for [Palm] to receive medical treatment” when they first noticed his need for medical attention, such that he was never denied medical care.

    He also opined that Palm was properly monitored during his incarceration in conditions that were adequate, and that there is no evidence that any policy or practice could have altered Palm’s health outcome.

    Cappitelli asserted that the jail staff were adequately trained and not responsible for medical care decisions. He based these opinions on “the standard of care prevalent in the corrections and custodial profession and facilities, and the practices of corrections personnel in this matter.”

    Cappitelli is familiar with the standard of care unique to the corrections environment because he has extensive experience “personally supervis[ing] numerous officers and professional staff support employees in a custody environment.” 

    In summary, the Court held that Cappitelli’s expert testimony regarding the standard of care in an involuntary detention setting, and whether the Defendants met that standard of care under the circumstances in this action, will assist the trier of fact.

    Held

    The Court denied Palm’s motion to exclude the testimony of Defendants’ expert witnesses, Kathryn Wild and Paul Cappitelli.

    Key Takeaway:

    Monitoring detainees or prisoners in a correctional environment is distinct from monitoring someone in the home or office in a way that average jurors may be familiar with. That unique setting carries with it a unique standard of care which the average layperson will likely need expert assistance to understand.

    Cappitelli’s testimony about the standard of care applicable to custodial officers in an involuntary detention setting goes beyond “what lawyers for the parties can argue in closing arguments.”  As long as Cappitelli connects his conclusions and opinions to the unique standard of care and special circumstances in the detention setting, they may be helpful to the jury. 

    Case Details:

    Case Caption: Palm V. Corrcare Inc Et Al
    Docket Number: 3:24cv47
    Court Name: United States District Court, Georgia Middle
    Order Date August 11, 2025
  • Business Valuation Expert’s Testimony on Physicians’ Compensation Admitted

    Business Valuation Expert’s Testimony on Physicians’ Compensation Admitted

    Plaintiff State of Washington alleged that Novo Nordisk Inc. (“NNI”) caused physicians to prescribe its drug, NovoSeven®, to Washington hemophilia patients by: (1) promoting it “off-label” for prophylaxis and “high dose” use; (2) paying kickbacks to physicians; and (3) paying bribes to patients, all of which rendered claims to Medicare and Washington Medicaid false.

    The State of Washington has been investigating this case for almost fifteen years, hoping to find evidence of unlawful conduct that allowed its Medicaid program to recoup money it paid for a medically necessary, life-saving drug.

    The State of Washington filed a Daubert motion to exclude the testimony of Defendant NNI’s expert witness, Nicholas J. Janiga. Janiga’s report concluded that the compensation NNI paid to 12 healthcare providers between 2005 and 2016 was consistent with fair market value.

    Washington challenged Janiga’s testimony because “his opinions are not premised on sufficient facts or data, nor are they the product of reliable principles and methods.”

    For instance, Washington objected that Janiga analyzed only 12 physicians, and argued that he should have considered how many other consultants “in a position to prescribe NovoSeven” were paid by NNI. The Court, however, regarded this disagreement over the scope of discovery as merely a matter for cross-examination.

    Business Valuation Expert Witness

    Nicholas J. Janiga is an Accredited Senior Appraiser in Business Valuation by the American Society of Appraisers. He is currently the Managing Director of HealthCare Appraisers, Inc.

    Janiga has extensive knowledge and experience in appraising healthcare business enterprises and medical professionals’ compensation. Moreover, he has extensive experience in analyzing the fair market value of healthcare transactions and arrangements involving the Anti-Kickback Statute (AKS).

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

    Discussion by the Court

    First, Washington argued that Janiga incorrectly assumed that the physicians provided necessary bona fide services. It also claimed Janiga’s opinion omitted other benefits physicians received from NNI, such as expenses for meals, lodging, and travel, and assistance with writing and publishing medical scholarship.

    NNI asked Janiga only to opine about whether the physicians’ compensation was fair market value. He was not asked to, and did not, opine on any other elements of the AKS’ “Safe Harbor.” Although the Court acknowledged that these were valid subjects for cross-examination, it held that they did not warrant disqualifying Janiga merely because of the limited scope of his study.

    Washington also asserted that Janiga’s report did not account for the fact that NNI’s compensation structure is based on a physician’s “geographical sphere of influence.”

    It argued that this compensation structure is improper because physicians may end up receiving work and compensation for the purpose of influencing other physicians. The Court viewed a physician’s influence in the medical community akin to stature and reputation. This is a valid factor in determining a physician’s compensation and affects the weight, not the admissibility, of Janiga’s testimony.

    Finally, Washington argued that Janiga’s report did not mention that Craig Kessler, the Editor-in-Chief of the publication Haemophilia, received “revenue based compensation from that publication whose revenue was enhanced by [NNI’s] purchase of reprints.” Washington additionally contended that NNI directly paid Kessler for his advice on this case. 

    Since Kessler’s advice to NNI on this case pre-dates Washington’s allegations that NNI inappropriately paid Kessler, any compensation he received for his advice is not relevant to Janiga’s opinion that Kessler was compensated at fair market value.

    Held

    The Court denied Washington’s motion to exclude the testimony of Nicholas J. Janiga.

    Key Takeaway:

    Janiga has sufficient expertise and experience appraising healthcare enterprises and compensation arrangements. Basically, his knowledge, background, and opinions about whether NNI compensated the 12 physicians at fair market value satisfy Rule 702‘s requirement in that his testimony will assist the jury in understanding the evidence and determining facts in issue.

    His testimony will be permitted because he is a qualified expert in the healthcare compensation appraisal through education, training, experience, knowledge, and skill, his report is based on sufficient facts or data, and his opinions are the product of the reliable application of principles and methods.

    Please refer to the blogs previously published about this case:

    Law & Legal Expert Helps Jury Understand Medicaid’s Complex Regulatory Framework

    Hematology Expert’s Opinion on NovoSeven’s Medical Appropriateness Admitted

    Pharmacology Expert’s Testimony About the Purpose and Effect of Illegal Marketing Tactics Excluded

    Internal Medicine Expert’s Testimony Limited Despite His Physician Behavior Experience

    Case Details:

    Case Caption: United States ex rel. Siegel v. Novo Nordisk, Inc.
    Docket Number: 3:23cv5459
    Court Name: United States District Court, Washington Western
    Order Date: July 15, 2025
  • Correctional Healthcare Expert’s Testimony About the Risk of Overdose Admitted

    Correctional Healthcare Expert’s Testimony About the Risk of Overdose Admitted

    S.F., a former detainee in the Denton County Jail, asserted claims for alleged violations of her constitutional rights on account of the jail’s treatment of her withdrawal from opioids during two separate incarcerations and the alleged denial by the jail of medication for Opioid Use Disorder (“OUD”).

    Plaintiff filed a motion to strike or limit the expert testimony of Dr.
    Nicholas Longnecker, contending that he is not qualified to opine on addiction medicine, the ADA (Americans with Disabilities Act), Denton County policies, and Department of Justice (“DOJ”) policies.

    Correctional Healthcare Expert Witness

    Nicholas Longnecker obtained a Bachelor of Science in Microbiology and Immunology from the University of Miami with minors in Chemistry and Religious Studies and his Doctor of Medicine from the University of Miami Miller School of Medicine. He completed his residency at The Washington Hospital Family Medicine Residency Program in Washington, Pennsylvania, and is licensed to practice medicine in the states of Texas, New Mexico, Colorado, and Wyoming.

    Longnecker is also a certified correctional health professional (CCHP), and he obtained his DEAX licensure, which allowed him to prescribe buprenorphine before this required waiver was eventually removed.

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

    Discussion by the Court

    A. Longnecker’s Qualification to Opine on Addiction Medicine

    To begin with, S.F. argued that Longnecker is not qualified to offer an expert medical opinion on addiction medicine.

    She asserted that Longnecker might be qualified to talk about the administration of some medications in a correctional setting for general ailments but lacks certification or advanced training in addiction medicine and lacks training in psychiatry and addiction psychiatry.

    However, Longnecker gained experience in addiction medicine through his work at several facilities over the course of many years.

    Longnecker worked at Greenbriar Treatment Center and the Washington County Jail for two years. He evaluated and treated patients suffering from addiction there. And at the Washington County Jail, he managed patients with addiction disorders. For the next six-and-a-half years, he worked at the University of Pittsburgh Medical Center, where he regularly treated patients suffering from addiction and managed their addiction medications.

    For a year-and-a-half after that, he worked at WellPath, where he oversaw the MAT program for Albion Prison. And since 2022, he has worked at CorrHealth, where he is responsible for directing inmate medical care. He also developed and manages its MAT program for sites across four States.

    The Court found Longnecker qualified to opine on addiction medicine.

    B. Improper Topics of Expert Testimony

    I. The ADA

    S.F. argued that Longnecker is not qualified to testify as to his legal conclusions about whether illicit substance abuse removes ADA protection.

    The Court held that Longnecker is qualified to draw that conclusion because he cited DOJ guidance and because he is experienced both in determining whether to offer Medication-Assisted Treatment (“MAT”) for OUD in a correctional setting and in drafting policies and procedures addressing that issue.

    II. County Policies

    S.F. argued that Longnecker is not qualified to testify that the Denton County Jail does not have a blanket policy prohibiting MAT. She said that the record did not show that Longnecker has worked at the jail, that his employer has performed services there, or that he has reviewed the jail’s or Public Health’s policies.

    The entirety of Longnecker’s opinion about the jail’s policies reads as follows: “No evidence exists that the Denton County Jail had a blanket policy prohibiting MAT. Conversely, there is evidence of MAT administration at the jail when the appropriate conditions were met (i.e. pregnancy).” 

    Since the jury did not need expert testimony to determine what evidence is in the record, the Court held that Longnecker’s opinion about the jail’s policies constituted improper expert testimony.

    III. DOJ Policies

    S.F. argued that, in the absence of any evidence or training showing otherwise, Longnecker is not qualified to opine as an expert that the jail provided treatment consistent with DOJ policies.

    Longnecker stated that the jail’s treatment of S.F. was “consistent with . . . DOJ expectations.” He did not, however, specify what expectations he had in mind. And his report mentioned only one DOJ report: a document that “provides informal guidance” to the public, the contents of which “do not have the force and effect of law and are not meant to bind the public in any way.”

    The Court held that the jury did not need an expert to opine on a document that was drafted for the public. Longnecker was expressing a prohibited legal conclusion if he meant to convey his opinion that, based on his understanding of the ADA’s requirements described in that document, the jail complied with the ADA.

    C. Relevance

    S.F. argued that Longnecker’s testimony about whether the jail treated her withdrawals is irrelevant. In her view, the issue is whether the jail treated her alleged disability—that is, her OUD—as opposed to her withdrawal symptoms.

    The Court held that Longnecker’s opinion about whether it was medically reasonable for S.F. to be treated for her withdrawals rather than being given MAT is relevant to showing deliberate indifference as to her constitutional right to medical care.

    D. Reliability

    I. County policies

    S.F. argued that Longnecker’s opinion about the county’s policies is unreliable because it is not based on any instances of the jail actually providing MAT. As already noted, the county refutes that assertion based on Longnecker’s review of county records.

    But even if Longnecker reached his conclusions about the county’s policies after reviewing relevant records, the Court held that he did not identify which facts in the record he relied on or what method he used to reach his conclusion.

    II. Standard of Care

    S.F. argued that the scientific and medical community regards methadone, buprenorphine, or naltrexone as the standard of care for treating OUD.

    In her view, Longnecker’s opinion that forced withdrawal, followed by treatment of withdrawal symptoms, constitutes effective treatment for Opioid Use Disorder “is so far outside the established medical community as to be unreliable, unsupportable, and viewed with extreme skepticism.”

    Longnecker did not opine, as S.F. argued, that forced withdrawal would be within the acceptable medical standard of care in all circumstances. And even if he did, S.F.’s argument that Longnecker’s opinion is “far outside the established medical community,” would still fail. The “general acceptance” factor from Daubert questions whether a theory or technique is reliable. It does not matter, at this stage, whether Longnecker is correct in finding forced
    withdraw reasonable. What matters is how he reached that conclusion, and his report makes that sufficiently clear.

    The Court held that Longnecker supported his opinion that MAT was not appropriate during S.F.’s first incarceration with sufficient facts and data. He opined that it was medically appropriate to provide “medically-assisted detox” because S.F. would not have been able to continue MAT after her transfer to Christian Farms, a facility that does not provide MAT.

    Further, Longnecker cited the “grave risk of severe overdose when using both fentanyl and methadone” as another reason the jail should not have administered methadone.

    Held

    The Court granted in part and denied in part the Plaintiff S.F’s motion to strike defense expert Dr. Nicholas Longnecker.

    Key Takeaway:

    Longnecker was allowed opine on whether the jail’s treatment of S.F. during both incarcerations, including its treatment of her withdrawals, was within the acceptable standard of care; and the severity of S.F.’s withdrawal.

    Case Details:

    Case Caption: S.F. V. Denton County, Et Al.
    Docket Number: 4:23cv864
    Court Name: United States District Court, Texas Eastern
    Order Date: May 27, 2025

  • Infectious Disease Expert’s Statements on Employer Liability Excluded

    Infectious Disease Expert’s Statements on Employer Liability Excluded

    Plaintiffs, former employees of a local government public health agency, each filed suit against Rock Island County Health Department (“RICHD”) and Rock Island County, Illinois (“the County”) alleging that their previous employer, RICHD, violated Title VII of the Civil Rights Act of 1964.

    The purported violations stem from their employer’s failure to accommodate their religious beliefs, first, when it denied their exemptions from a COVID-19 vaccination requirement, and later when Plaintiffs were terminated for failing to get vaccinated.

    RICHD disclosed an expert witness, Dr. F. Ramzi Asfour. Asfour was asked to “provide his opinion concerning the proper approach of a public health entity to evaluating requests from employees to be exempted from” vaccination requirements and to provide epidemiological evidence related to vaccine efficacy compared to other mitigation methods.

    Plaintiffs filed the instant motion to bar Asfour, arguing that his opinion violated the standards of Federal Rules of Evidence 702 and 704.

    Infectious Disease Expert Witness

    F. Ramzi Asfour, MD, is board certified in Infectious Diseases and Internal Medicine, having attended a fellowship specializing in infectious
    diseases and having worked for the World Health Organization.

    His experience practicing medicine in the area of infectious diseases spans seventeen years, with over 72,000 patient encounters. Moreover, he has recent experience in consulting hospitals and other healthcare facilities on “policies, procedures and protocols relating to COVID-19.”

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

    Discussion by the Court

    Whether the Statements Fall Outside of Asfour’s Expertise

    Plaintiffs state that Asfour is a medical doctor with an expertise in public health who “is not qualified to render opinions regarding religion or religious exemptions.”

    The Court held that Asfour did not purport to opine about the sincerity of anyone’s religious beliefs. Instead, he highlighted various reasons that it was important from a public health perspective that healthcare workers be vaccinated, and based on those factors, opined that healthcare entities should carefully scrutinize requests for religious exemptions from COVID-19 vaccination requirements. Further, he opined that the scrutiny should be accomplished by identifying whether there was a “clear and specific doctrinal basis for objecti[ng]” to getting the vaccine. This is not a religious opinion, so Plaintiffs’ argument that Asfour should be barred from testifying that “religious exemptions should generally be denied unless there is a clear and specific doctrinal basis for objection” on the basis that it is outside his expertise is denied.

    Whether the Opinion Contains Legal Conclusions

    Asfour opined on how “employer liability” is affected by a potential COVID-19-
    related illness or death. And, while Plaintiffs do not take issue with
    this part of the opinion, Asfour recounts, verbatim, the definition of religion under Title VII.

    While allowing Asfour to opine as to the definition of religion under Title VII and interpret an employer’s liability related to COVID-19 illness or death would run the risk of confusing a jury with multiple presentations of the law, the Court held that Asfour’s statements also offer his perspective on public health matters and provide background for RICHD to make its arguments related to whether granting religious exemptions constituted an undue burden.

    Therefore, the Court will limit Asfour’s opinion as to his statement on employer liability related to COVID-19 illness or death, and the definition of religion under Title VII. Those are matters designated for the Court to instruct on; all other statements do not constitute legal conclusions.

    Whether the Opinion Meets the Standards of Reliability

    From what the Court can decipher from Plaintiffs’ motion, they did not challenge that the underlying data or methodologies used to formulate Asfour’s opinion were unreliable; however, they seemingly did contend that his opinion cannot meet the requirements under Rule 702(d).

    Asfour began his expert report by outlining “[a] meta-analysis with seven studies with 21,618,297 COVID-19 patients,” and explained how “unvaccinated patients were 2.46 times more likely to die from COVID-19.”

    He analyzed the drop in the death rate after the introduction of the vaccine, specifying how the weekly deaths in Rock Island County decreased from five to one from late 2021 to early 2022.

    Asfour then discussed how religious groups generally did not object to vaccinations from a public health standpoint.

    The Court held that Asfour’s application of data to the facts at hand did not run afoul of what was required under Rule 702(d).

    Whether the Opinion is Relevant

    Plaintiffs argued that much of Asfour’s opinion consisted of mere “facts which appear solely intended to justify the vaccine mandate itself which is not the issue for this jury.”

    However, the Court held that Asfour’s opinion will aid the factfinder by providing a better understanding of how the rates of infection during the COVID-19 pandemic changed based on the availability and use of the vaccine, which connects to the analysis of whether RICHD faced an undue burden in granting exemption requests.

    Plaintiffs next argue that the opinion is too vague due to Asfour’s use of words like “most,” “many,” and “generally.”

    Since RICHD has met its burden in establishing how the expert opinion will aid the finder of fact, the Court held that Asfour’s opinion is not too vague to provide this background.

    Held

    The Court granted in part and denied in part the Plaintiffs’ motion to bar or exclude Defendant Rock Island County Health Department’s expert F. Ramzi Asfour.

    Key Takeaway:

    Asfour has over seventeen years of experience in treating infectious diseases and has recently shifted his career to consulting healthcare entities specifically on COVID-19 responses—expertise that he pulls from to formulate his opinion. Moreover, his expert opinion meets the relevant standards; he is qualified to opine on matters of public health, his methodology was reliable, and the testimony is relevant.

    However, Asfour cannot opine on the definition of religion under
    Title VII or employer liability related to COVID-19 illness or death.

    Case Details:

    Case Caption: Sanchez V. Rock Island County Health Department
    Docket Number: 4:23cv4007
    Court Name: United States District Court for the Central District of Illinois, Rock Island Division
    Order Date: May 12, 2025
  • Retirement Plan Expert Witness’ State of Mind Opinions Excluded

    Retirement Plan Expert Witness’ State of Mind Opinions Excluded

    In 2016, Defendants Signode Industrial Group, LLC, and Illinois Tool Works, Inc. unlawfully terminated promised healthcare benefits for Plaintiffs, a class of retirees and their dependents. On March 26, 2019, this Court enjoined Defendants to reinstate Plaintiffs’ healthcare benefits that were in effect before January 1, 2016. Defendants implemented a new healthcare benefits plan effective January 1, 2020, but Plaintiffs contend that the new plan is deficient. In other words, Plaintiffs alleged that the 2020 Plan does not “reinstate, restore, and replicate” the 2002 Plan.

    Plaintiffs hired a healthcare consultant, Stuart Wohl to assess how the 2020 Plan compares to the 2002 Plan. Defendants filed a motion to exclude Wohl’s report and testimony. Defendants argued that the Wohl Report must be excluded because Wohl’s opinions allegedly “are not supported by appropriate citations and/or corresponding explanations,” are offered “about topics he does not understand,” and are “simply Wohl’s own speculation about retirees’ state of mind.”

    The parties did not dispute that Wohl is qualified as an expert to offer testimony on healthcare plans.

    Retirement Plan Expert Witness

    Stuart I. Wohl is a Senior Vice President and Senior Benefits Consultant for Segal, a human resource and benefits consulting firm hired by Plaintiffs. Wohl is a licensed Life and Health Insurance Consultant in multiple states with more than thirty years of healthcare consulting experience, specializing in retirement healthcare. 

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

    Discussion by the Court

    The Wohl Report provides Wohl’s opinions with respect to the material differences between the 2002 Plan and the 2020 Plan, along with additional opinions related to the sufficiency of the 2020 Plan in restoring the retirees’ healthcare.

    Wohl first concluded in the Wohl Report that the 2020 Plan “is and will be understood by the retirees as being materially different from the [2002 Plan]” until it was discontinued in January 2016.  He also concluded that Defendants’ 2020 Plan “overcharges retirees and discourages retirees from participating in” that Plan. Wohl stated that Defendants’ proposed remedies to rectify the period between 2016 and 2019 when the retirees had no healthcare “imposes unfair burdens on the retirees.”

    Wohl Report appears to be based on Wohl’s speculations supported by his own expertise

    The Court held that the Wohl Report frequently makes declarations that begin with “in my opinion,” and then provides Wohl’s professional opinion on a certain matter related to the Plans, without citations or further explanations for that opinion. For instance, the Wohl Report assesses that the 2020 Plan provides different coverage for ambulances, chiropractic care, nursing, and vision but fails to cite to either Plan in support of that assessment.

    In other words, the Wohl Report does not sufficiently connect Wohl’s expertise to the opinions presented in the Report.

    Wohl Report improperly contains references to retirees’ states of mind

    State of mind opinions are not proper expert testimony when the expert provides no basis or foundation for making those opinions. The Court observed that Wohl makes these conclusions about the retirees’ state of mind without providing any evidence that he spoke to any of the retirees.

    Wohl Report contains legal conclusions about remedies

    Certain sections of the Wohl Report contain inadmissible legal conclusions about what remedies Wohl believes are available and adequate in this case. The remedies available in this action are a disputed issue in this case that are the subject of one of Plaintiffs’ pending motions. The Court held that it is outside the scope of appropriate expert testimony for the Wohl Report to make legal conclusions about remedies.

    Held

    The Court granted the Defendants’ motion to exclude the report and testimony of Stuart Wohl.

    Key Takeaways:

    • Because Wohl had no foundation to make state of mind opinions, they constitute inadmissible witness testimony.
    • Wohl summarizes and opines over various elements of the Plans without explaining how his experience yields his conclusions and without citing sufficient evidence to substantiate his opinions. Because the Court’s gatekeeping function “requires more than simply ‘taking the expert’s word for it,’ ” the opinions and conclusions about the Plans in the Wohl Report are not sufficiently reliable to be admissible.
    • Rule 704 of the Federal Rules of Evidence permits expert witnesses to testify as to the ultimate issue in an action, but it does not authorize those opinions to be legal conclusions that will determine the outcome of the case. Wohl Report contains inadmissible legal conclusions about what remedies Wohl believes are available and adequate in this case.

    Because the Report is based on unsupported opinions, inappropriate state
    of mind opinions, and legal conclusions, it is unreliable and not helpful to the Court.

    Case Details:

    Case Caption: Stone Et Al V. Signode Industrial Group Llc Et Al
    Docket Number: 1:17cv5360
    Court: United States District Court, Illinois Northern
    Order Date: September 30, 2024
  • Chiropractic Expert Witness is Not Qualified to Speak to the Correctness of an EMC Diagnosis

    Chiropractic Expert Witness is Not Qualified to Speak to the Correctness of an EMC Diagnosis

    This matter involves the Plaintiff insurers’ claim that Defendants unlawfully billed for medically unnecessary and illusory services, misrepresented the nature and extent of the services, and operated in violation of various laws specific to the healthcare and/or insurance sector.

    According to the Plaintiff, Titan Defendants agreed to refer patients to the Stein Defendants in exchange for the Stein Defendants providing the patient with a false EMC diagnosis, which enabled the Titan Defendants to provide medically unnecessary chiropractic, physical therapy, and other services to the patient and to receive reimbursement for these services in excess of the ordinary $2,500 limit.

    Plaintiffs produced an expert report from Dr. John Merritt, who found that the Titan Defendants treated patients suffering from minor injuries but routinely referred them to the Stein Defendants for medically unnecessary EMC evaluations, and the Stein Defendants would consistently diagnose the patients with an EMC that did not appear to be warranted. The Titan Defendants, in turn, produced an expert report from Dr. Todd Cielo in which he rebutted Merritt’s opinion that the patients referred from Titan Wellness to Stein, D.O., P.A. (“Stein, P.A.”) did not have an EMC, stating that he had a “serious problem” with this accusation, and challenged Merritt’s opinion that the Stein Defendants’ EMC diagnoses were not warranted. 

    Plaintiffs filed a motion to exclude Cielo’s opinions (i) purporting to rebut Merritt’s opinion with respect to whether the patients referred by the Titan Defendants to the Stein Defendants actually suffered from an EMC and, by extension, (ii) purporting to rebut Merritt’s opinion regarding the “medical necessity” of EMC referrals from Titan Wellness to Stein, P.A. Plaintiffs challenge the admissibility of these opinions on two bases.

    Chiropractic Expert Witness

    Todd Cielo is the President and Owner of Cielo Sports and Family Chiropractic Centre. As a practicing chiropractor for the past 20 years, he is a lecturer for continuing education organizations in Florida and is an accredited lecturer for the Florida Bar Association. Cielo earned his bachelor’s degree from the University of Florida and his doctor of chiropractic medicine degree from Life University.

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

    Discussion by the Court

    First, Plaintiffs argued that Cielo is not qualified to proffer an opinion regarding whether an EMC diagnosis is appropriate because Florida’s No-Fault Law does not permit chiropractors to render EMC diagnoses. Second, because Cielo himself testified that he was not qualified to comment on EMC diagnoses, Plaintiffs claimed that not only is Cielo unqualified to proffer the opinions at issue but the opinions at issue are also unhelpful and unreliable as a result.

    Florida No-Fault Law

    With respect to Plaintiffs’ first argument, the parties do not dispute that under Florida’s No-Fault Law, chiropractors are not among those medical professionals who may determine that a patient suffered from an EMC such that the insurance reimbursement limit for healthcare services rises to the higher $10,000 maximum amount. They also do not dispute that Cielo is a chiropractor. The parties’ dispute centers around the relevance of Florida’s No-Fault Law to the Daubert analysis.

    The Court held that Cielo’s status as a chiropractor does not bar him from providing an expert opinion regarding whether a patient suffers from a medical condition involving severe acute symptoms that warrant immediate medical attention, including potentially referral to another healthcare provider. Chiropractic physicians, of which Cielo is one, are qualified to “examine, analyze, and diagnose the human living body and its diseases.” Therefore, the Court permitted Cielo to proffer opinions consistent with this expertise. Cielo, however, is not qualified to speak to the correctness of an EMC diagnosis or, by extension, the medical necessity of a referral based strictly upon there being a subsequent EMC diagnosis because he is not qualified to render an EMC diagnosis under the No-Fault Law.

    The pages Plaintiffs reference from Cielo’s report include statements that appear to fall on either side of this line, and the Court declines to parse the report sentence by sentence at this stage. The Court will exclude from consideration at the summary judgment stage any improper opinions proffered by Cielo and will provide the jury with a limiting instruction at the trial stage to effectuate this decision.

    Cielo’s Testimony

    Plaintiffs’ second argument challenged the qualifications of Cielo as well as the reliability and helpfulness of his expert opinions based on Cielo testifying at various points during his deposition that he was not qualified to comment on issues pertaining to EMC diagnoses. In the examples provided by Plaintiffs, Cielo claimed that he was unqualified to comment on which factors he would take into account in determining whether a patient suffered from an EMC and that he was unable to speak on behalf of Stein or an EMC doctor because he is “not qualified for an EMC.”

    In light of the limitation described in the prior subsection, the Court found that Plaintiffs’ argument regarding Cielo’s deposition testimony is moot.

    Held

    The Court granted in part and denied in part the Plaintiffs’ motion to exclude opinions of Titan Wellness Defendants’ expert Todd Cielo.

    Key Takeaway:

    Chiropractic physicians, of which Todd Cielo is one, are qualified to “examine, analyze, and diagnose the human living body and its diseases.” Cielo, however, is not qualified to speak to the correctness of an EMC diagnosis or, by extension, the medical necessity of a referral based strictly upon there being a subsequent EMC diagnosis because he is not qualified to render an EMC diagnosis under the Florida No-Fault Law.

    Please refer to the blog previously published about this case:

    Pain Management Expert Witness’ Testimony About Billing for Medical Examinations Admitted

    Case Details:

    Case Caption: Government Employees Insurance Co. Et Al V. Titan Wellness Center Of Fort Myers, L.L.C. Et Al
    Docket Number: 0:22cv61648
    Court: United States District Court for the Southern District of Florida
    Order Date: August 7, 2024
  • Neuropsychology Expert Witness Fails to Provide Any Basis for His Opinion On the Costs of Healthcare

    Neuropsychology Expert Witness Fails to Provide Any Basis for His Opinion On the Costs of Healthcare

    In May 2023, Joy and Brian Parnes filed this lawsuit against the Orange County School Board for disability discrimination and retaliation related to the education of their minor daughter, S.P. Pursuant to Rule 702, the Parneses seek to introduce the opinion testimony of Timothy Conway, Ph.D. in support of their theory that S.P. requires accommodations and the cost of those accommodations including private schooling.

    Neuropsychology Expert Witness

    Timothy Conway completed supervised pre-doctoral and post-doctoral training in the diagnosis and treatment of neurodevelopmental disorders in children and adults at The Morris Center [(TMC)]. Conway received his bachelor’s degree in psychology, and he holds a Ph.D. in clinical psychology with a concentration in neuropsychology. After completing his Ph.D., he completed a post-doctoral fellowship at the VAMC-Brain Rehabilitation Research Center of Excellence.

    Since 2008, Conway has owned or managed TMC clinics in Ocala, Florida; Ponte Vedra Beach, Florida; Birmingham, Alabama; Port of Spain, Trinidad and Tobago, West Indies; and NOW!, an EdTech company. Also, since 2008, he has been training and directing teams of healthcare professionals (occupational therapy, speech-language therapy, clinical psychology/neuropsychology) and educators in the transdisciplinary assessment and treatment of neurodevelopmental disorders. And he has co-authored numerous publications and provided training courses and workshops to professionals.

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

    Discussion by the Court

    Conway wrote in his expert report that S.P. “needs high intensity, high frequency, evidence-based intervention for her specific learning disorders, AD/HD and her developmental coordination disorder.”

    Conway is Qualified to Provide Opinion Testimony

    The Board claimed that because Conway is not licensed in Florida or another state, he is unqualified to serve as an expert in psychology, school psychology, occupational therapy, speech-language pathology, or K-12 educational needs. Here, the Board pointed to the lack of information in Conway’s expert report or curriculum vitae that he is a licensed psychologist, school psychologist, licensed occupational therapist, or licensed speech-language pathologist in Florida (or any other state). Also, the Board asserted that he is unqualified because he has never taught in a K-12 classroom in Florida and he is not a licensed educator in Florida. 

    Finally, the Board argued that Conway is unqualified because he “never personally treated, evaluated, or assessed S.P. in a clinical or school setting.”

    To the extent that the Board argued that Conway is unqualified because he is unlicensed in Florida, it has not stated how this renders Conway unqualified in this case. Moreover, the Board failed to explain its arguments that he is not licensed as a speech-language pathologist in any jurisdiction or as an educator in Florida. The Court held that argument goes to the weight that a trier of fact might give the testimony, but it does not preclude admissibility. 

    The Parneses submitted that Conway has evaluated S.P., reviewed her medical and school records (including those that the Board produced), and has spoken with S.P. and her parents on “numerous occasions regarding her education.” The Court held that his expert report was based on evaluation, information, and the status of [S.P.] at that time.

    Conway is Not Offering a Causation Opinion

    Since Conway’s report is limited to S.P.’s present treatment, education, and schooling needs, the Board argued that Conway’s “causation” opinions warranted exclusion. The Board submits that the “causation” opinions that Conway will offer are: (1) the alleged acts or omissions on the part of the Board, (2) the adequacy and appropriateness of any services and supports the Board provided S.P., and (3) whether the Board damaged or harmed S.P.

     The Parneses explained that Conway’s report does not opine as to “causation” because he is not going to offer a “causation” opinion. Thus, the Court excluded Conway’s opinions as to causation.

    Reliability of Conway’s Methodology

    The Board argued that Conway’s proposed opinions are not based on a reliable methodology and are simply ipse dixit that will not assist the jury.

    Conway’s opinions will help the jury to understand the parties’ positions

    First, the Court held that Conway’s opinions will help the jury to understand the parties’ positions and the remedies that the parties believe are appropriate or inappropriate. Conway’s opinions are not so speculative (or outside the bounds of what he does) that his opinions will fail to assist the jury. And while the Board argues that Conway’s lack of licensure means he will not assist the jury, as previously discussed “lack of board-certification [or a license] goes to weight, not admissibility.”

    Second, the records that Conway reviewed were produced to the Board and consisted of S.P.’s school records, medical records, and evaluations. Moreover, Conway interviewed S.P., her parents, and family members. Conway reviewed all of S.P.’s school records covering the past six to seven years and reviewed all evaluations of disabilities. The Court held that Conway’s opinions are based on sufficient facts and data.

    Third and fourth, the Court held that Conway’s proposed opinions as to the accommodations that S.P. requires to catch up with her peer group and to participate in public or private school are reliable. The Parneses stated that Conway used peer reviewed and accepted principles to evaluate S.P.’s school records and medical records. His opinion connects his experience and secondary sources to S.P.’s school and medical records such that it is the product of reliable principles and is based on reliable methodology.

    Conway’s opinions about the costs of private schooling and healthcare are unreliable

    When Conway submitted his estimates for healthcare costs, the Court found that he failed to provide any basis for them. Conway’s report does not set forth the cost of individual services. Likewise, there is no cost estimate for the online program (NOW!) that S.P. is enrolled in; it is not clear whether that program is included in the monthly figure or if it is a separate cost.

    Moreover, Conway did not submit that he has testified as an expert witness regarding medical coding or the reasonableness of medical billing. And he does not submit that his opinion on S.P.’s medical billing was the result of considering authoritative sources on the subject. Nor does he explain how he determined “typical” rates in the area, and there is no support for this determination other than Conway’s own report.

    Likewise, Conway’s opinion on the cost of private schooling is unreliable. As with Conway’s opinion on healthcare costs, he fails to provide “any explanation of the basis, facts, or data considered in reaching” his opinion as to S.P.’s continuing treatment and educational costs. And he does not cite to any other resource to support his opinions. As a result, his methodology is insufficiently reliable for him to offer an opinion on the continuing treatment and educational costs in this case. 

    Held

    The Court limited the testimony of expert Timothy Conway after excluding his opinions as to causation, healthcare costs, and schooling costs.

    Key Takeaway:

    Conway opined based on his experience “helping students with severe and many deficits,” his review of S.P.’s medical and school records, his evaluation of S.P., and speaking to the Parneses and family members. His company may charge certain rates, but there is insufficient information in his expert report to support his testimony as an expert regarding the costs of healthcare, educational services, or private school tuition in the community at large. Conway does not provide support for his calculation of the costs of S.P.’s potential treatment.

    Case Details:

    Case Caption: Parnes Et Al V. Orange County School Board
    Docket Number: 6:23cv854
    Court: United States District Court, Florida Middle
    Order Date: September 24, 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