Expert Witness Profiler

Tag: Hearsay

  • Marketing Expert’s Testimony on Review Hijacking Limited

    Marketing Expert’s Testimony on Review Hijacking Limited

    The present action stems from Plaintiff ML Products, Inc. (“ML Products”) and Defendants BillionTree Technology USA, Inc. (“BillionTree”) and Mountain Peak, Inc. (“Mountain Peak,” collectively, “Defendants”) competing for sales on Amazon.com where Defendants allegedly employed fraudulent tactics. Specifically, ML Products asserted claims of violations of the Lanham Act, false advertising, and unfair competition against Defendants.

    On April 12, 2024, Professor Brett Hollenbeck, ML Products’ affirmative technical expert, produced an expert report on his analysis of “the tactics related to online reviews used by certain competitors of ML Products, including BillionTree and its [alleged] affiliates.”

    Broadly, Hollenbeck opined that 22 of the 29 products sold by BillionTree and its alleged affiliates engaged in review hijacking—inappropriately linking a different product’s reviews to the given product on Amazon and misrepresenting the product as having more positive reviews; reviewers of nine of the products complained that the seller sent them emails requesting them to change negative reviews into positive ones in exchange for payment; and by manipulating and falsifying product ratings, BillionTree increased its visibility and sales on Amazon, misled customers, and lowered the visibility of its competitors, thereby harming ML Products.

    Defendants filed a motion to exclude the testimony of Hollenbeck.

    Marketing Expert Witness

    Prof. Brett Hollenbeck is an Associate Professor of Marketing at the UCLA Anderson School of Management in Los Angeles, California. His educational background includes a Bachelor of Science in Economics and a Bachelor of Arts in Political Science, both from the George Washington University, a Masters in Economics from the University of Texas at Austin and a Ph.D. in
    Economics from the University of Texas at Austin.

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

    Discussion by the Court

    1. The Expert Report is Compliant with Rule 26(a)

    Defendants argued that ML Products failed to disclose the facts and data—specifically, the Amazon information—considered by Hollenbeck in forming his opinion. Defendants further argued that ML Products’ failure to disclose warrants sanctions under Rule 37.

    The Court did not find that ML Products failed to disclose the facts and data considered by Hollenbeck in forming his opinion. Although Defendants are correct that the Hollenbeck Report must lay out the factual bases for his opinions, the Hollenbeck Report provided the factual bases upon which he formed his opinions as he explored whether BillionTree and its alleged affiliates engaged in product rating manipulation to increase its sales and harm competitors like ML Products.

    For instance, Hollenbeck opined that 22 of the 29 products sold by BillionTree and its alleged affiliates engaged in review hijacking; 9 of the products had reviews where customers were offered gift cards to change negative reviews into positive ones; and BillionTree and its alleged affiliates’ conduct increased their products ratings and hurt the sales of its competitors, including ML Products.

    The Court is not convinced that ML Products’ disclosure prevented Defendants from conducting a meaningful deposition of Hollenbeck, as Defendants have had until August 20, 2025, to submit a rebuttal report and until September 3, 2025, to complete discovery, which is more than sufficient time.

    The Court found that sanctions under Rule 37 is not warranted, as ML Products did not fail to disclose Hollenbeck as an expert witness nor the facts and data supporting his opinions in the Hollenbeck Report.

    2. The Expert Report is Not Improper under FRE 703

    Defendants argued that the Hollenbeck Report should be excluded because it relies on inadmissible hearsay and improperly attempts to establish the truth of its content.

    However, the Court held that Hollenbeck may rely on hearsay as it is reasonably relied upon in the field of marketing academia. Typically, an academic expert in online marketplaces will review comment entries on marketplaces to identify how the products function.  Further, Hollenbeck used the marketplace reviews and applied his expertise to form an independent judgment that BillionTree and its alleged affiliates were engaging in review hijacking, bribing customers to turn negative reviews into positive ones, and manipulating Amazon ratings to boost its sales and diminish competitors’ sales.

    Moreover, the probative value of Hollenbeck’s opinion outweighs its prejudicial effect because it could help a juror to determine certain facts like whether review hijacking, bribing customers for better reviews, and manipulating ratings constitutes an unlawful, unfair, or fraudulent business act or practice. 

    3. The Expert Report Applies Reliable Methods

    Defendants argued that the Hollenbeck Report should be excluded because it lacked analytical rigor, relied on incomplete data, and failed to account for alternative explanations.

    Defendants asserted that, for example, the report did not account for other variables impacting a products’ ranking on Amazon, and that the Hollenbeck Report did not provide evidence supporting its assertion that repurposed reviews misled consumers and caused harm.

    Hollenbeck reviewed product pages and analyzed 29 products. He further declared that he performed an analysis of the reviews and product pages downloaded by applying his skills and expertise from marketing academia.

    The Court found that his understanding and expertise in the area coupled with the general accepted principle that alternative explanations involve weight, not admissibility, are sufficient to assuage Defendants’ concerns of unreliable methodology.

    4. The Expert Report Attempts to Introduce Legal Opinions

    Defendants argued that the Hollenbeck Report repeatedly referred to Defendants’ alleged conduct as illegal according to the Federal Trade Commission, which is an impermissible legal opinion.

    The Court found that some of Hollenbeck’s opinions constituted improper expert opinions.

    In paragraph 9 of his report, Hollenbeck described BillionTree and its alleged affiliates as partaking in review hijacking and opines that “this type of review hijacking is considered illegal by the Federal Trade Commission.” In paragraph 99 of his report, Hollenbeck opined that BillionTree and its alleged affiliates engaged in “harassment and paying for positive reviews which are considered illegal by the Federal Trade Commission.” Interpreting whether conduct constitutes a violation of law regulated by the Federal Trade Commission falls squarely within the Court’s province, as it involves conclusion of law.

      Held

      The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of Brett Hollenbeck.

      Key Takeaway:

      Expert witnesses may rely on inadmissible hearsay in forming their opinions, so long as it is of a type reasonably relied upon by experts in their field. Typically, an academic expert in online marketplaces will review comment entries on marketplaces to identify how the products function. In this case, Hollenbeck used the marketplace reviews and applied his expertise to form an independent judgment that BillionTree and its alleged affiliates were engaging in review hijacking.

      Case Details:

      Case Caption: ML Products Inc. V. Billiontree Technology USA, Inc.
      Docket Number: 2:23cv8626
      Court Name: United States District Court for the Central District of California
      Order Date: August 26, 2025
    1. Insurance Expert Permitted to Testify Despite Lacking Specific Certifications

      Insurance Expert Permitted to Testify Despite Lacking Specific Certifications

      Plaintiffs Diane Watts, Anthony Watts, and Adam Pizzitola (collectively, “Plaintiffs”) purchased car insurance policies from Defendants Liberty Mutual Personal Insurance Company.

      In relevant part, the policies contained an Optional Transportation Expenses Coverage endorsement which provided that, in the event of an accident, LMPIC would pay the expense of a rental vehicle while repairs were performed on the damaged vehicle. If the vehicle was declared a total loss, then LMPIC would pay for a rental vehicle for the “period of time reasonably required” to replace the total loss vehicle, up to a maximum of 30 days, or $900.

      Each Plaintiff alleged that after a car accident in which they received access to and payment for a rental vehicle, Liberty Mutual Personal Insurance Company and Liberty Mutual Insurance Company prematurely terminated the rental car coverage, despite the contractual obligation to first determine the amount of time a policyholder reasonably needs to replace their totaled vehicle.

      On May 16, 2025, LMIC filed a motion to strike and exclude the opinions of Plaintiffs’ expert Mr. Jay Angoff pursuant to Federal Rule of Civil Procedure 56(c)(2) and Rule of Evidence 702.

      Insurance Expert Witness

      Jay Angoff is an attorney with a long career working in the insurance industry. At various times over the past 40 years, he has served as the Insurance Commissioner for the State of Missouri, as the Deputy Insurance Commissioner for the State of New Jersey, as the Director of the U.S. Health Care Financing Administration’s Private Health Insurance Group, and as the Director of the HHS Office of Consumer Information and Insurance Oversight.

      Want to know more about the challenges Jay Angoff has faced? Get the full details with our Challenge Study report

      Discussion by the Court

      Defendants contended that the Court should strike the Angoff Report under Rule 702 and Daubert because Angoff is not qualified to render the opinions in his report and because Angoff’s opinions are not reliable.

      Qualifications

      Defendants argued that Angoff is not qualified to render these opinions because he “lacks any education, training, or experience in the field of accounting or financial advisory, or reinsurance” and has no relevant professional certifications or degrees.

      Though Angoff has not served as an expert specifically on financial statements, given this extensive history upon which he renders his opinions, the Court concluded that he is appropriately qualified in this case. The Defendants’ attacks on Angoff’s lack of qualifications or specific certifications are an appropriate line of inquiry for cross-examination, but such bases do not disqualify him from serving as an expert in this case.

      Reliability

      Sufficiency of the Data

      Defendants argued that Angoff’s opinions related to LMPIC’s reserves are unreliable because they are based on plainly erroneous assumptions and cherry-picked facts.

      Angoff’s opinions are predominantly based off LMPIC’s and LMIC’s 2023 accounting statements, from which Angoff has drawn various conclusions based on his experience in the insurance industry reviewing and analyzing financial statements.

      There is no dispute that the accounting statements and the other record evidence considered by Angoff are a reliable basis on which he could form an opinion. While Defendants contended that Angoff’s opinions are based on mistaken assumptions that account only for net numbers and ignore gross numbers, such a challenge is not an appropriate basis for exclusion at this junction. While it is entirely possible that Angoff’s reading of the accounting statements is incorrect, the Court cannot draw that conclusion because would it be appropriate for the Court to do so.

      Legal Conclusions

      Defendants also argued that Angoff’s opinions that LMPIC’s regulator would not permit it to pay a $45 million judgment and that LMPIC does not “act independently” of LMIC are conclusions without factual basis. Defendants further characterized this second conclusion as a legal opinion.

      The Court agreed that some statements in the report are inadmissible conclusions of law. Angoff may testify regarding what, in his experience, a regulator would consider in analyzing an insurance company’s availability and source of funds to pay a judgment, but not the conclusion of law as to whether LMPIC’s regulator would permit LMPIC to pay a $45 million judgment. Similarly, Agnoff may testify as to industry practice in structuring and operating insurance companies and the relationship created in the reinsurance context, but not the conclusion of law that LMPIC does not “act independently” of LMIC.

      Bias

      Defendants also attacked Angoff as an unreliable expert due to alleged bias. Specially, Defendants argued that, “until recently, [Angoff] was a Plaintiff’s class action lawyer who sued insurance companies for a living, and is not independent of Plaintiffs’ counsel given his prior relationship with them.”

      However, an expert’s bias goes to the weight or credibility of his testimony. As such, the Court held that Angoff’s potential bias does not necessitate his exclusion.

      Held

      The Court denied the Defendant’s motion to strike and exclude the opinions of Plaintiffs’ expert Jay Angoff.

      Key Takeaway:

      As long as an expert’s scientific testimony rests upon ‘good grounds, based on what is known,’ it should be tested by the adversary process—competing expert testimony and active cross-examination—rather than excluded from jurors’ scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies.

      Angoff’s report is grounded in his experience regarding insurance companies’ financial statements and regulatory requirements. The report and record together contain sufficient explanation of Angoff’s methodological choices and reasoning to overcome a Daubert challenge in this posture.

      Case Details:

      Case Caption: Watts Et Al V. Liberty Mutual Personal Insurance Company Et Al
      Docket Number: 1:23cv12845
      Court Name: United States District Court, Massachusetts
      Order Date: July 29, 2025
    2. Admitting Foreign Law Experts: Navigating Rule 44.1 in Court

      Admitting Foreign Law Experts: Navigating Rule 44.1 in Court

      The case centered on a dispute over property ownership in Cuba. The Plaintiff relied on the testimony of Avelino Gonzalez, an expert in Cuban law, to establish their claim. The Defendants, however, challenged the admissibility of Gonzalez’s testimony on multiple grounds.

      Law And Legal Expert Witness

      Avelino Gonzalez is an attorney with a Summa Cum Laude Bachelor of Law degree from the University of Havana, Cuba, and 35 years of experience in Cuban Law.

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

      Discussion by the Court

      Challenges to the Expert’s Testimony

      The Defendants launched a multi-pronged attack on Gonzalez’s testimony, primarily arguing that:

      Improper Use of Expert Opinion

      The Defendants claimed the Plaintiff was improperly using Gonzalez’s opinions to establish disputed facts, arguing Gonzalez lacked personal knowledge of those facts.

      Reliance on Inadmissible Hearsay

      They asserted that Gonzalez relied on inadmissible hearsay, particularly a history book and family member accounts, to form his opinions regarding the Plaintiff’s inheritance claim.

      Improper Application of Foreign Law

      The Defendants objected to Gonzalez’s ability to opine on the application of Cuban law to the specific facts of the case.

      Invasion of the Jury’s Province

      They argued that Gonzalez’s testimony would improperly invade the jury’s role in determining factual matters.

      Unreliable Facts and Rule 703 Violation

      They contested the reliability of Gonzalez’s sources, especially the history book, and argued a violation of Federal Rule of Evidence 703.

      The Court’s Observations and Rulings:

      The Court, however, rejected the Defendants’ arguments and ruled that Gonzalez’s testimony was admissible. Key points from the Court’s observations include:

      Rule 44.1 Flexibility

      The Court emphasized the flexibility granted by Federal Rule of Civil Procedure 44.1, which allows courts to consider “any relevant material or source, including testimony,” when determining foreign law.

      Broad Scope of Admissible Evidence

      The Court noted that Rule 44.1 is not constrained by traditional rules of evidence, such as Rule 703 or limitations on hearsay. Thus foreign law experts can use a wide range of documents and sources.

      Court’s Role in Determining Foreign Law

      The Court highlighted that determining foreign law is its responsibility, not the jury’s.

      Premature Objections

      The Court deemed some objections premature, stating that it would address the parameters of Gonzalez’s testimony and the weight to be afforded to his opinions after reviewing the parties’ motions for summary judgment.

      Cross-Examination as a Safeguard

      The Court acknowledged the Defendants’ right to cross-examine Gonzalez to challenge his testimony and raise objections.

      Held

      The Court denied the Defendants’ motion to exclude the testimony of Avelino Gonzalez.

      Key Takeaway:

      This case underscores the unique treatment of expert testimony on foreign law in U.S. courts. Rule 44.1 provides significant flexibility, allowing experts to rely on a broad range of materials and sources. While challenges to such testimony are common, courts prioritize their role in determining foreign law and rely on cross-examination to ensure fairness.

      Case Details:

      Case Caption: Echevarria V. Expedia, Inc.
      Docket Number: 1:19cv22620
      Court: United States District Court, Florida Southern
      Order Date: February 28, 2025
    3. Fire Investigation Expert Witness Prohibited from Relying on Statements by an Unidentified Officer

      Fire Investigation Expert Witness Prohibited from Relying on Statements by an Unidentified Officer

      Meadowbrook Shopping Plaza, LLC purchased a building at 3895 Metro Drive (“the Building”) in 1995. Around 2018, Mr. Khaldoun Abaji approached Meadowbrook about utilizing the Building for his business, a store called Kids Avenue. Abaji and Meadowbrook came to an oral agreement where Abaji paid Meadowbrook $800 a month for the space.

      The parties agreed that Abaji stored his merchandise inside the Building but did not re-open his storefront before the events giving rise to this lawsuit. Additionally, the parties seemed to agree that the Building did not have electricity or gas throughout his tenancy. Less clear is whether Abaji could, or planned to, operate his storefront in the Building.

      The events giving rise to this lawsuit began on December 13, 2021, when the Building was vandalized. Nationwide was Meadowbrook’s insurer at this time, so Meadowbrook submitted a claim for the damage. Nationwide determined that the damage totaled $132,586; however, it denied Meadowbrook’s claim because, in its view, the vacancy exclusion applied.

      The second event precipitating the lawsuit occurred on July 1, 2023, when the Building caught on fire. There was no indication that the sprinkler system was on when the Jackson Fire Department arrived.

      Again, Meadowbrook filed a claim with Nationwide. And, again, Nationwide denied the claim. This time, Nationwide explained that denial was appropriate because the Building did not maintain an automatic sprinkler system in complete working order at the time of the fire. Meadowbrook then filed this suit against Nationwide for denying its claims. Its causes of action include breach of contract and bad faith denial of insurance benefits.

      Meadowbrook sought to exclude certain expert testimony by Richard W. Jones, Jr. and Adam Bomar.

      Fire Investigation Expert Witnesses

      Richard Jones has over 23 years of experience in the field of investigations for both the public and the private sectors. He also has prior service and training with local fire districts and the Louisiana Office of State Fire Marshal, specializing in the field of fire and explosion investigations.

      Jones has completed numerous courses related to fire and explosion investigations sponsored by the National Fire Academy, Maine State Police, the International Association of Arson Investigators, and other local organizations. He earned a degree in Fire Science from Columbia Southern University and is an experienced lecturer on fire and explosion investigations.

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

      Adam Bomar is a Nationwide fire loss investigator. He is currently a Fire Lieutenant and Deputy Fire Marshall with the Mountain Brook Fire Department in Mountain Brook, Alabama. He is also currently the Operations Manager and Fire Investigator with Crain & Associates, Inc. in Birmingham, Alabama.

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

      Discussion by the Court

      Richard Jones, who has been designated as an expert in forensic fire investigations, visited the scene after the fire. He noticed that the “post indicator valve” which supplied water to the sprinkler system was in the “shut” position. Adam Bomar, a Nationwide fire loss investigator, also visited the scene and noticed rust on the wrench that operated the post indicator valve. This led Bomar to opine that the valve had not been turned on for an extended period.

      Meadowbrook did not challenge the qualifications of either Jones or Bomar. Instead, it argued that parts of their testimony should be excluded as either irrelevant or unreliable

      Meadowbrook first argued that Jones’ testimony should be struck as a legal conclusion. It then asserted that the International Existing Building Code, which Jones relied on in forming his opinion, is irrelevant because the insurance policy at the heart of this case did not require Meadowbrook to follow this Code. Finally, Meadowbrook maintained that Bomar should be excluded from testifying to statements he heard from an unnamed Jackson Fire Department officer because such statements are unreliable hearsay.

      A. The Court Denies the Motion to Exclude Jones’ Entire Testimony

      The Court disagreed that Jones’ testimony “is nothing more than a legal conclusion” which is why his entire testimony will not be struck. Meadowbrook is free to object at trial should his opinions veer outside the scope of expert testimony.

      B. Jones May Testify to the International Existing Building Code

      Meadowbrook challenged the International Existing Building Code referenced in Jones’s report.

      The City of Jackson adopted the 2018 edition of this Code in 2020. Meadowbrook maintained that any testimony related to this Code should be excluded because Nationwide’s policy did not require it to follow the Code. Nationwide responded that Meadowbrook’s disagreement relates to the weight of Jones’s testimony, but not its admissibility. The Court agreed.

      According to Jones, the City of Jackson adopted the Code, which requires certain changes to the use of a structure be submitted for approval. Meadowbrook has not yet rebutted this premise, which will be for the jury to decide. Meadowbrook is free to cross-examine Jones on his report and his assertions relating to the Code. Ultimately, the jury is free to decide what weight—if any—to give Jones’s testimony. The Court denied Meadowbrook’s motion on this ground.

      C. Bomar May Not Rely Upon Statements from an Unidentified Officer

      Finally, Meadowbrook sought to exclude the purported assertion by an unnamed Jackson Fire Department officer that it is not the Department’s policy to shut off the post indicator valve at the scene of a fire. It asserted that any opinion and testimony made in reliance on this statement should be excluded because it is wholly unreliable.

      Nationwide responded that Bomar, as an expert, may rely on hearsay in forming the basis of his opinion so long as other experts in his field would do so.

      The parties agreed that Bomar did not record the name of the Jackson Fire Department officer who allegedly made this statement. Neither party has learned this officer’s name through the course of the litigation.

      The statement made by the unidentified Jackson Fire Department officer, if offered to prove that the Department would not have turned the post indicator valve off, is textbook hearsay. Nationwide has failed to show that some exception applies to this rank hearsay. The Court held that incorporating the testimony into Bomar’s report does not transform the statement to one which the jury can receive.

      Held

      The Court granted in part and denied in part Meadowbrook’s motion in limine to exclude certain expert testimony by Richard W. Jones, Jr. and Adam Bomar.

      Key Takeaway:

      • Question relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s consideration.
      • Daubert’s “gatekeeping function” requires the Court to examine the relevancy and reliability of all proffered expert testimony.

      Case Details:

      Case Caption: Meadowbrook Shopping Plaza, Llc V. Nationwide Assurance Company
      Docket Number: 3:23cv3093
      Court: United States District Court, Mississippi Southern
      Order Date: January 08, 2025
    4. Financial Expert Witness’ Cash Flow Analysis Admitted

      Financial Expert Witness’ Cash Flow Analysis Admitted

      Plaintiff, Yoel Weisshau challenged the constitutionality, under the dormant Commerce Clause, of the Port Authority’s toll and fare increases, in effect since September 18, 2011, on all the Port Authority’s bridges and tunnels within the Interstate Transportation Network (“ITN”).

      Plaintiff filed a motion to strike Elizabeth McCarthy’s affidavit and cash flow analysis, as well as her reply to Plaintiff’s expert report. By his motion, Plaintiff additionally sought an order “precluding the submissions of the expert witness Elizabeth McCarthy, precluding the Port Authority of New York and New Jersey from submitting any documents and printouts, calculations, and data downloaded from its General Ledger, and sanctioning Defendant for withholding discoverable information.”

      Financial Expert Witness

      Elizabeth M. “Libby” McCarthy joined the Port Authority as Chief Financial Officer (CFO) in January 2013.

      As CFO, McCarthy is responsible for overseeing, managing, and directing the Port Authority’s financial and accounting functions. This includes responsibility for over $5 billion of annual revenues, $3 billion of annual operating budget expenses, and the annual Capital Plan investments in support of the agency’s 2017 to 2026 Capital Plan.

      Discussion by the Court

      Plaintiff argued that McCarthy’s “cash flow analysis is pure hearsay and inadmissible for purposes of trial and summary judgment.” For Plaintiff, the information is hearsay because McCarthy “does not have personal knowledge of the figures cited in [the cash flow analysis] to be accurate” since her staff prepared information on her behalf. However, Rule 703 states that an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.

      The Court held that McCarthy’s staff made her aware of information from the General Ledger, which they reviewed and discussed. Thus, the Court declined to find here that McCarthy’s cash flow analysis is inadmissible hearsay.

      Held

      The Court denied Plaintiff’s motion to strike Elizabeth McCarthy’s affidavit and cash flow analysis.

      Key Takeaway:

      As per 703, McCarthy’s “cash flow analysis” is not hearsay because McCarthy’s staff made her aware of information from the General Ledger, which they reviewed and discussed.

      Case Details:

      Case Caption: Weisshaus V. The Port Authority Of New York And New Jersey Et Al
      Docket Number: 1:11cv6616
      Court: United States District Court for the Southern District of New York
      Order Date: August 22, 2024
    5. Psychiatry Expert Witness’ Testimony Regarding the Criteria for Cannabis Use Disorder Admitted

      Psychiatry Expert Witness’ Testimony Regarding the Criteria for Cannabis Use Disorder Admitted

      Defendant Ryan Vangdy is charged with knowingly possessing firearms while being an unlawful user of a controlled substance.

      The government filed a motion to exclude Defendant’s expert, Dr. Gregory Nawalanic. The government argued that the Court can exclude Nawalanic under Rule 702 for several reasons, specifically that the testimony is irrelevant, unhelpful to the jury, only serves to confuse the issues, and is likely to introduce inadmissible hearsay.

      Psychiatry Expert Witness

      Gregory Nawalanic, Psy.D., is a clinical assistant professor in the Department of Psychiatry and Behavioral Sciences at the University of Kansas Medical Center and the clinical director of Psychology Services at The University of Kansas Health System’s Strawberry Hill Campus.

      In addition to supervising the behavioral health staff, he provides clinical instruction to psychology interns and postdoctoral fellows, as well as psychiatry residents. He also operates as part of the executive leadership of the facility.

      Along with a bachelor’s degree and a master’s degree in psychology from Florida International University and Pepperdine University, respectively, he also holds a master’s degree and a doctor of psychology in clinical psychology from the American School of Professional Psychology at Argosy University. 

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

      Discussion by the Court

      To begin with, the Defendant proposed to introduce testimony from Gregory Nawalanic regarding the DSM-V criteria for cannabis use disorder, and to testify as to the difference between “frequent and infrequent” use of controlled substances.

      Defendant’s expert disclosure indicated that Nawalanic would testify that a hypothetical user who consumed marijuana two to four times a month would not meet the criteria for being diagnosed with cannabis use disorder under the DSM-5. Nawalanic would not offer an opinion as to whether Defendant was an unlawful user of a controlled substance on October 6, 2021.

      The Court found that Nawalanic’s testimony was relevant to the issues being presented to the jury. The primary inquiry for the jury is whether Defendant possessed a firearm in or affecting interstate commerce when he was a regular and ongoing user of a controlled substance. 

      Cannabis use disorder would make it more likely that the individual was an unlawful user within the meaning of the statute. Moreover, the Court held that this potentially helpful information was not greatly outweighed by the risk of confusion because Nawalanic is not trying to testify to the ultimate legal issues, and any hearsay concerns can be dealt with by contemporaneous objection.

      Held

      The Court denied the Government’s motion to exclude Dr. Gregory Nawalanic’s testimony.

      Key Takeaway:

      In conclusion, Nawalanic’s testimony provided the Court with potentially helpful information to determine whether Defendant possessed a firearm in or affecting interstate commerce when he was a regular and ongoing user of a controlled substance. 

      Case Details:

      Case Caption: USA v. Vangdy
      Docket Number: 6:23cr10027
      Court: United States District Court, Kansas
      Order Date: August 06, 2024
    6. Wind Speed Opinions of Forensic Engineering Expert Witness Admitted

      Wind Speed Opinions of Forensic Engineering Expert Witness Admitted

      This case involves an insurance claim regarding a damaged roof on the Minden residence. Plaintiffs, Michael and Theresa Minden (“Plaintiffs”), purchased a newly-constructed home in 2003 in Nevada. Allstate’s policy of insurance insured the property.

      In September 2019, a wind event occurred resulting in damage to the roof of Plaintiffs’ home but Plaintiffs waited until November 2019 to report this damage to Allstate.

      Plaintiffs alleged that several roof tiles were cracked, exposing the underlying roof felt and that since the time of loss, water penetrated their roof tiles and further damaged the underlying felt and the inside of the Property. This case focused on the cause and manner of the damage to Plaintiffs’ roof, and Allstate’s homeowners’ insurance policy language, which stipulated that it covered these damages only if caused by a singular “occurrence,” and not through regular wear and tear. Allstate, after a thorough evaluation of Plaintiffs’ claim, made the determination that Plaintiffs’ roof damage was the result of faulty installation and subsequently years of wear and tear, and compensated Plaintiffs for the eight (8) roof tiles deemed damaged by a singular wind event. Plaintiffs disagreed with this assessment, and the present suit followed.

      Plaintiff’s expert, Marcor G. Platt, examined Plaintiff’s roof on August 13, 2021 and August 24, 2021. The Defendant alleged that the roof Platt inspected, however, was not the same roof that was on the house in September 2019 when the claim was made. Plaintiffs had almost entirely replaced their roof in October of 2020, almost an entire year before Platt’s site investigations.

      Defendant Allstate Property and Casualty Insurance Company moved to strike the Plaintiffs’ expert witness, Marcor G. Platt. Allstate also filed a duplicate motion in limine to exclude Platt from testifying at trial.

      Forensic Engineering Expert Witness

      Marcor G. Platt has over twelve years engineering and project management experience in the fields of residential, commercial, and industrial building structural design and retrofit, electrical transmission line structural design, and forensic engineering and expert witnessing.

      His forensic engineering experience includes investigating roof failures, wall failures, foundation damage, corrosion, ancillary structure damage, and other miscellaneous damage resulting from hail, wind, snow, tornado, hurricane, lightning, volcano, tropical storm, vehicle impact, or other natural or man-made forces. His expert witness experience includes testifying at depositions and trials regarding project management, structural failures, structural adequacy, structural damage, property compliance with building codes, and other subjects.

      Efficiently evaluate if investing further resources into vetting Marcor G. Platt is merited based on the findings in our Preliminary Screening Report. 

      Discussion by the Court

      Federal Rule of Evidence 702 governed the admissibility of Platt’s opinions. To be admissible, expert testimony must be both relevant and reliable.

      Expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry. It is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline

      Opinions Based on Relevant Facts and Data

      Allstate also argued that a roofing company had moved the tiles Platt took for testing from their original locations during the roof replacement in 2020. It added that any displaced tiles Platt observed in 2021 were unrelated to the wind event in 2019 because the roof was replaced in 2020. Allstate argued that Platt’s opinions were based on other experts’ reports and interviews, so his “opinions were nothing more than a comparison of the evidence provided by others.”

      Relying on Others’ Reports

      Platt interviewed the Mindens, the contractor who replaced the roof, and a neighbor who experienced wind damage to her roof. The Court found that Platt reviewed documentation, photographs, and reports prepared by others. Platt also conducted two site visits to the Minden residence, conducted weather research, removed tile samples and sent them to a lab for testing, and performed calculations regarding maximum probable wind speed and how that may have impacted the tiles on the roof.

      Moreover, Allstate had not suggested that experts in Platt’s field would not have relied on interviews, photographs, or other secondhand sources that Platt relied on.

      Allstate’s expert likewise did not view the roof before its replacement and similarly relied on photographs of the old roof and information provided by the Mindens. After all, experts in the field would rely on the same or similar materials as Platt did, and Allstate has not shown otherwise.

      Replacement Roof

      When the roof was replaced, the roofer used the original tiles as if they were not damaged. Platt opined that the tiles he sent for testing were the original roof tiles, not replacements. Consequently, the jury could find that the testing performed on those tiles would be consistent with testing done on the original roof tiles.

      The Court could determine whether the tested tiles were original tiles, whether they were in a different location after the roof replacement, and how the tiles were stored or transported to the testing site through cross-examination.

      Displaced Tiles in 2021

      Platt observed displaced and cracked roof tiles during his site visits in 2021. Platt did not feel that the 2019 event displaced the tiles he observed. Rather, he noted that, like the original tiles, the current roof tiles “were susceptible to displacement under the windspeeds which occur at the property.”

      The Court held that this information was relevant to the question of whether wind gusts at the proper speed could displace roof tiles. Moreover, Allstate had not explained why that conclusion was not reliable.

      Unreliable

      Allstate argued that errors in Platt’s report made his opinions unreliable. Specifically, Platt misstated the date of a rainstorm that caused water intrusion into the Mindens’ home after the September 2019 wind event. Allstate also contended that Platt’s testimony about the weather data regarding wind speeds was unsupported.

      The Mindens argued that Platt had explained the source of his wind speed opinion.

      Date of Rainstorm

      In his initial report, Platt stated that Minden told him that there were “torrential rains” in September 2019 that caused water infiltration to the house. At his deposition, Platt acknowledged that was an error and the rainstorms with water intrusion were in November and December 2019. The Court noted that Allstate did not explain what significance the date of the rainstorm had to Platt’s opinions, which were not about water intrusion from a rainstorm.

      Wind Speed

      In his initial report, Platt stated that he reviewed historical weather data from 2013 to 2021 for Clark County and the City of Henderson. Platt stated that according to the National Oceanic and Atmospheric Administration’s (NOAA) Storm Event Database, “four events with wind gusts between 50 and 62 knots were reported within 4 miles of the property from July 2018 to July 2021” and that “[n]no gusts over 62 knots were recorded within four miles of the property from July 2003 to July 2021.” He also stated that, according to NOAA’s Storm Prediction Center, 62 mile per hour gusts were reported at the Henderson Executive Airport, and on September 1, 2019, “winds with gusts exceeding 75 mph crossed the southeastern Las Vegas valley and Henderson.”

      Although Allstate contended that there was no support for Platt’s statement regarding the 75 mph wind gusts, Platt cited the source for this data point. Allstate’s expert noted the same information as Platt, which was that on September 1, 2019, wind gusts “exceeded 75 mph across the southeast side of the Las Vegas valley including the city of Henderson.”

      Supplemental Report

      Allstate sought to exclude Platt’s supplemental report because it referred to wind events on dates unrelated to the September 2019 storm that allegedly damaged the Mindens’ roof. Allstate contended the supplemental report consisted of dates and wind speeds that were not close to the date of the loss or to the alleged threshold rating of the roof tiles. It also argued that Platt had no support for his opinion of a maximum probable windspeed of 70 mph.

      The Court held that the supplemental report referenced additional weather research Platt obtained from NOAA Local Climatological stations, as well as Platt’s explanation for why Allstate’s expert’s reliance on another source, the Weather Underground website, was unreliable.

      The Court saw no reason to exclude his opinion on this basis, as he was cataloguing additional data and responding to data provided in another expert’s report.

      As for Platt’s opinion on the maximum probable windspeed in the supplemental report, Platt explained the basis for his wind speed opinions in his original report, along with the support for those conclusions, and supplemented that analysis in his second report.

      Held

      The Court denied the motions to exclude the testimony of Marcor G. Platt because the arguments Allstate raised were matters for cross- examination and were not bases to strike Platt’s testimony.

      Key Takeaways:

      1. Relying on Others’ Reports: When Allstate argued that Platt’s opinions were based on other experts’ reports and interviews, the Court held that experts can rely on hearsay in forming their opinions so long as the underlying facts or data are of a type experts reasonably rely upon in the particular field in forming opinions or inferences upon the subject.
      2. Reliability: Platt explained the basis for his opinions in his original report, along with the support for those conclusions, and supplemented that analysis in his second report. The Court held that Platt relied upon relevant facts and data to form his conclusions.
      3. Supplemental Report: Cataloguing additional data and responding to data provided in another expert’s report is no basis to exclude an expert’s testimony.

      Case Details:

      Case Caption: Minden Et Al V. Allstate Property And Casualty Insurance Company
      Docket Number: 2:21cv151
      Court: United States District Court, Nevada
      Order Date: April 04, 2024

    7. Consumer Confusion Survey Conducted by Survey Research Expert Witness held to be based on a Reliable Methodology

      Consumer Confusion Survey Conducted by Survey Research Expert Witness held to be based on a Reliable Methodology

      Plaintiffs, Lincare Holdings Inc.’s and Lincare Licensing Inc.’s (collectively “Lincare”) are national health care companies that provide patients “with top quality treatments and durable medical equipment.” Plaintiffs’ “portfolio includes healthcare goods and services offered in connection with the trademarks LINCARE, mdINR, CONVACARE, AMERICAN HOMEPATIENT, PREFERRED HOMECARE, and the trade name SPECIALIZED MEDICAL SERVICES.” Defendant Doxo, Inc. (“Doxo”) runs an all-inone bill pay service that allows users to pay bills to over 120,000 billers using Doxo’s website. Doxo, although unaffiliated with Plaintiffs, included Plaintiffs as billers that can be paid through Doxo’s website. Doxo’s biller pages for Plaintiffs included the use of Plaintiffs’ trademarks and trade name. Plaintiffs initiated this action against Doxo on October 13, 2022, asserting claims for trademark and service mark infringement in violation of Section 32 of the Lanham Act (Count 1); false representation and false designation of origin in violation of Section 43(a) of the Lanham Act (Count 2); unfair competition in violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) (Count 3); trademark infringement, trade name infringement, and unfair competition under Florida common law (Count 4); and tortious interference with business relationships (Count 5).

      Doxo accused Lincare of attempting to use several forms of inadmissible
      evidence as a result of which Doxo sought to exclude (1) Lincare’s various call logs prepared by its customer support agents, which constituted unreliable, inadmissible, and often multilayered hearsay, (2) all evidence of, or testimony relating to, cease and desist letters sent to Doxo by third-party billers, as well as any third-party complaints or disputes that involve marks not at issue here and were not fully adjudicated as well as (3) Sarah Butler’s testimony regarding Lincare’s trademarks other than LINCARE.

      Survey Research Expert Witness

      Sarah Butler is a highly esteemed expert in survey research and sampling, boasting over 20 years of experience in designing and executing intricate consulting projects for clients involved in litigation, arbitration, regulatory proceedings, and business strategy. Her expertise extends to advising prominent brands such as Apple, Walmart, Toyota, and Gatorade. Notably, her research and testimony have been widely recognized and accepted in both state and federal courts, including bench and jury trials, as well as by regulatory bodies like the ITC and the Copyright Board, along with arbitration venues.

      Discussion by the Court

      First, Doxo argued that the Court should exclude Lincare’s various call logs prepared by its customer support agents since the call logs were neither recordings nor verbatim transcriptions of actual words spoken by Lincare’s customers. Instead, they reflected the employees’ characterizations of the conversation, biased by the employees’ express instructions from their superiors to uncover evidence of confusion in support of this case.

      The Court observed that the call logs/notes consisted of two layers of statements: (1) the notes written by Plaintiffs’ customer representatives, for which the customer representatives are the declarants; and (2) the statements of Plaintiffs’ customers made to and recorded by the customer representatives, for which the customers are the declarants. Under Federal Rule of Evidence 805, “hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.”  Thus, both layers of double hearsay must satisfy a hearsay exception to be admissible. Alternatively, there would be no hearsay within hearsay problem if the customers’ statements recorded within the notes did not constitute hearsay.

      The Court agreed with Plaintiffs that the customers’ statements to Plaintiffs’ customer representatives were not hearsay or were subject to the state of mind exception to hearsay.

      Next, Doxo argued that the evidence of cease and desist letters sent to Doxo by third-party billers, as well as any third-party complaints or disputes that involved marks not at issue here and were not fully adjudicated were irrelevant because “documents specific to one trademark are largely irrelevant to a claim for infringement of an entirely separate mark.” Additionally, Doxo maintained that mere complaints by third parties about alleged infringement were not relevant to the willfulness of Doxo’s infringement.

      The Court held that the letters were relevant to Doxo’s intent, bad faith, and willfulness in using Plaintiffs’ trademarks since the cease-and-desist letters and other third-party disputes put Doxo on notice that other businesses believed that Doxo’s use of their trademarks on its website infringed their trademarks. But — as Plaintiffs tell it — Doxo continued to prominently use various businesses’ trademarks, including Plaintiffs’ trademarks, on its website in the same way despite this notice.

      Finally, Doxo contended that Plaintiffs’ survey expert, Sarah Butler, should not have been able to offer opinions regarding Plaintiffs’ trademarks besides the LINCARE mark. It emphasized that Butler’s survey only involved the LINCARE mark and, thus, her opinion stated in her report that there was “no reason to believe [that her] conclusions as to confusion would differ for” Plaintiffs’ other marks should not have been admissible. The Court held that Doxo neglected addressing the Federal Rules of Evidence in support of this section of its
      Motion. Instead, Doxo cited law regarding expert reports and at least one case deciding a Daubert motion rather than a motion in limine.

      It was worth noting that Doxo had previously filed a Daubert motion targeting Butler’s testimony. When Butler had described the consumer confusion survey she conducted for the LINCARE mark, Doxo had argued that her opinions lacked reliable methodology. Doxo alleged that Butler’s survey consisted of numerous flaws concerning the survey population, the marketplace conditions, the control group, and the allegedly vague questions asked. The Court denied Doxo’s Daubert motion after acknowledging that Butler’s methodology in conducting her survey was reliable enough for it to be presented to the jury.

      The Court determined that to the extent Doxo could be interpreted as raising a challenge to the admissibility of Butler’s opinion under the Federal Rules of Evidence, that challenge likewise failed. Butler’s opinion regarding these trademarks was held to be relevant to the trademark infringement claims and exclusion under Rule 403 was unwarranted. Doxo was free to cross-examine Butler and raise arguments at trial about the weight to be accorded to her opinions.

      Held

      The Court denied the Defendant’s motions in limine to exclude Lincare’s unreliable call log, evidence regarding third-party disputes, and Sarah Butler’s testimony regarding Lincare’s trademarks other than LINCARE.

      The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

      Key Takeaways:

      Regardless of the challenges to Sarah Butler’s methodology in a Daubert motion, the Court ultimately deemed her survey reliable enough for presentation to the jury, emphasizing the importance of demonstrating methodological soundness in expert opinions. Additionally, arguments regarding the scope of expert opinions were addressed, with the Court dismissing Doxo’s contention that Butler should only offer opinions on the LINCARE mark as unsupported by relevant legal standards. The Court emphasized the importance of applying the Federal Rules of Evidence and relevant legal standards in evaluating the admissibility and scope of expert testimony to ensure consistency and fairness across cases. Vigorous cross-examination — rather than exclusion — was advocated as the proper means of challenging Butler’s opinions

      Case Details:

      Case Caption: Lincare Holdings Inc. Et Al V. Doxo, Inc.
      Docket Number: 8:22cv2349
      Court: United States District Court, Florida Middle
      Citation: 2024 U.S. Dist. LEXIS 34899
      Order Date: February 29, 2024

    8. Court reserves ruling on the motion to exclude after the expert’s opinion is found to consist of legal questions for the Court

      Court reserves ruling on the motion to exclude after the expert’s opinion is found to consist of legal questions for the Court

      Plaintiff, Racine Car Dealer, LLC, (“Racine” or “RCD”) a former Hyundai and Genesis motor vehicle dealer, claimed that Defendant, Hyundai Motor America(“HMA”) deceived it, withheld information, and altered the rules and policies of Hyundai’s dealer incentive program without notice. This alleged conduct compelled the Plaintiff to terminate the Genesis side of its dealership before completing the sale of its franchise to a third party. The Plaintiff proceeded to trial, asserting claims under the Wisconsin Motor Vehicle Dealer Law, the Automobile Dealers’ Day in Court Act, and Wisconsin contract law.

      Racine attempted to hold HMA accountable for its failure to meet the explicit “exclusive facility” requirement outlined in HMA’s Hyundai Accelerate Incentive Program. Due to this non-compliance, Racine did not qualify for incentive payments under the program. Racine asserted that this failure to qualify for Accelerate Incentive Program payments “coerced” the dealership into terminating its Genesis franchise, which was necessary to finalize the sale of the dealership to a third party, Zeigler Auto Group. Racine claims that the failure to qualify for incentives resulted in a $2 million reduction in the purchase price during the sale to Zeigler. Racine asserted that, as part of the Hyundai Accelerate Incentive Program, HMA “indirectly” violated Wisconsin Motor Vehicle Dealer Law § 218.0116(1)(i) by canceling Racine’s Genesis franchise.

      Defendants had disclosed an expert, Sharif Farhat, who issued a “dealer network analysis” report on October 24, 2023. In his report, Farhat opined that (1) it was reasonable for Defendants to support dealer efforts in improving brand representation through programs like Accelerate Incentive Program; (2) RCD’s claims alleged that the Accelerate Program disadvantaged small market Hyundai dealers were unsupported, speculative, and internally inconsistent; and (3) RCD’s claim suggested that HMA through their Accelerate Incentive Program “coerced” dealers into terminating their Genesis franchise was misleading and incorrect.

      Plaintiff asserted that Farhat’s opinions would not aid the jury in understanding the evidence or determining relevant facts. Additionally, the Plaintiff argued that these opinions were not based on sufficient facts or data and were not derived from reliable principles or methods. The opinion was sought to be excluded for three primary reasons. First, it was deemed irrelevant to any issues related to the Plaintiff’s claims. Second, even if relevant, determining the reasonableness of Defendants’ support for dealer efforts did not necessitate expert testimony. Third, the Plaintiff contended that Farhat’s report lacked any reasoning or methodology supporting the testimony, rendering it scientifically unreliable.

      Defendant Hyundai Motor America formally requested motions in limine, seeking to prevent Plaintiff Racine Car Dealer, LLC from making references, through argument, testimony, questioning, statements, documents, or any other means, to other lawsuits allegedly involving HMA. Additionally, HMA sought a motion precluding Racine from introducing as evidence or referring to a November 4, 2020, letter authored by the New York State Automobile Dealers Association (“NYSADA”). Furthermore, HMA requested a motion in limine to block Racine from presenting any evidence, argument, or testimony related to or referencing hearsay news articles concerning HMA.

      Automotive Industry Expert Witness

      Sharif Farhat is the Vice President of Expert Analytical Services at Urban Science Applications, Inc. He received his Bachelor of Science degree in Computer Science with minors in Mathematics and Business Administration from Michigan State University and then obtained his Masters degree in Business Administration from the University of Detroit. His specialities include analytical techniques to evaluate programs, policies, and metrics to assess dealer performance for the automotive industry. 

      Discussions by the Court

      The Plaintiff argued that the testimony and the October 24, 2023, report of the defense expert, Sharif Farhat, should be excluded for two main reasons: (1) they would not assist the jury in understanding the evidence or determining a fact in issue, and (2) the opinions were not based on sufficient facts, data, the product, or reliable principles or methods. The admissibility of expert opinion was guided by Rule 702, interpreted by the Supreme Court to allow expert testimony that is both reliable and relevant (Daubert v. Merrell Dow Pharmaceuticals, Inc.; Fed. R. Evid. 702). The Seventh Circuit condensed the requirements of Rule 702 into a three-part test, compelling district Courts to evaluate the proffered expert’s qualifications, the reliability of the expert’s methodology, and the relevance of the expert’s testimony (Gopalratnam v. Hewlett-Packard Company, 877 F.3d 771, 779 (7th Cir. 2017)).

      Initially, no expert reports were admitted at trial due to being largely considered classic hearsay. However, certain portions, such as demonstrative charts and graphs, 1006 summaries, and other documents, were allowed to be presented to the jury, if not separately admitted into the record under the Federal Rules of Evidence. Furthermore, the Plaintiff did not challenge Farhat’s qualifications but contested the relevance and reliability of his opinions. Farhat, an expert in the automotive dealership industry, asserted in his report that (1) it was reasonable for the Defendant to support dealer efforts to enhance brand representation through the Accelerate Incentive Program; (2) the Plaintiff’s previously rejected claim of the program disadvantaging small market Hyundai dealers was contrary to market data; and (3) the Plaintiff’s claim that the Defendant, via the Accelerate Incentive Program, coerced dealers to terminate their Genesis franchises was incorrect. The Defendant countered by stating that Farhat had never been excluded as an expert in any matter, followed an eight-step methodology in forming his opinions, and relied on various sources, including deposition transcripts, exhibits, summary judgment briefing, program documents, communications to the dealer network, sales and dealership data, automotive registration data, and information on program payments and accruals to Wisconsin dealers.

      The Defendant stated that it would not present the second opinion of the expert, rendering the Plaintiff’s motion regarding that opinion granted as unopposed. Consequently, only opinions 1 and 3 remained, their relevance depending on the requirements for proving Plaintiff’s exclusive facilities claim under the Wisconsin Motor Vehicle Dealer Law. The Court was unconvinced that the first and third opinions were reasonably in dispute, and if contested, both could be considered legal questions for the Court. Particularly regarding the third opinion, the parties’ factual positions continue to be two ships passing in the night. Legally, the Defendant asserted that the Plaintiff must prove that the Defendant unreasonably required or coerced the provision of exclusive facilities, while the Plaintiff argued it only needed to prove that the Defendant “coerced” or “attempted to coerce,” with the burden shifting to the Defendant to demonstrate reasonableness. Due to these disputes and lack of clarity, which were likely to impact jury instructions and the verdict form, the Court reserved judgment on the remaining portion of the motion regarding the relevance of Farhat’s first and third opinions for further discussion with the parties at the final pretrial conference.

      The Plaintiff contended that an email, sent by Karen Mendez to “All Hyundai Dealers” on January 10, 2020, announcing the Accelerate Incentive Program and its terms and conditions, should be excluded as irrelevant unless credible evidence demonstrated its receipt by Racine Car’s general manager, James Bozich, or any other personnel at Racine Car. Alternatively, the Plaintiff argued that the Defendant should be barred from referencing or implying that the email was distributed to all dealers because: (1) there was no group email address linked to “All_Hyundai_Dealers@hmausa.com;” and (2) the original email containing the actual dealer emails in the blind copy recipient field had been deleted.

      Initially, the email was considered relevant to the factual dispute between the parties regarding whether James Bozich or any other Racine Car personnel were adequately informed about the Defendant’s Accelerate Incentive Program and the overall reasonableness or coerciveness of HMA’s conduct. Despite Bozich maintaining that he never saw the email due to it being sent to his old “homerunautogroup.com” email instead of his “sbcglobal.net” email, the Court noted in its summary judgment opinion that the Defendant had presented evidence indicating Bozich was on the email distribution list. The Plaintiff emphasized the inability to confirm the recipients of the email, but the Defendant referred to Karen Mendez’s testimony, stating that she habitually blind copied all-dealer emails to specific dealer emails in a “regional dealer directory” produced during discovery. Mendez mentioned that Bozich’s email would have been included if it was in that directory. Despite the uncertainty, Defendant argued that Bozich’s “homerunautogroup.com” email was on the “Current Dealer Email List as of 9.2020.” Defendant also produced an “Email Distribution List” dated January 6, 2020, including Bozich’s “sbcglobal.net” email. The Defendant further claimed that Mendez sent another email about the program 21 days later to the same “All Hyundai Dealers” group, including Bozich and Basich as recipients, specifically to Bozich’s preferred “sbcglobal.net” email address. Additionally, the Defendant anticipated that Racine Car’s then-acting general manager, Adrian Basich, would testify that he was aware of the January 10, 2020, email and its requirements, and that Bozich regularly used the “homerunautogroup.com” email during his tenure at Racine Car.

      Therefore, the Plaintiff’s motion was based on a disputed material fact. The argument that the email could be “highly prejudicial” highlighted the contentious nature of whether Bozich or others at Racine received the email. The Court determined that these issues, including the credibility of the parties’ evidence, were matters for the jury to decide. Consequently, the Plaintiff’s motion to exclude the email or limit testimony concerning it was denied.

      Defendant argued that the Plaintiff should be barred from presenting evidence and arguments related to other lawsuits against Hyundai Motor America, asserting that such evidence would be irrelevant and excessively prejudicial. The Court granted this motion as it remained unopposed by the Plaintiff.

      Defendant argued that the Plaintiff should be prevented from presenting or referencing a November 4, 2020, letter from the New York State Automobile Dealers Association criticizing the Accelerate Incentive Program. The Defendant contended that the letter was inadmissible hearsay, irrelevant, and unduly prejudicial. The Court granted this motion as it went unopposed by the Plaintiff.

      Defendant asserted that the Plaintiff should be barred from presenting evidence or arguments related to news articles about Hyundai Motor America, citing their irrelevance and inadmissibility as hearsay. The Court granted this motion as it remained unopposed by the Plaintiff.

      Held

      1) Plaintiff’s motion in limine to exclude the opinions and report of Defendant’s expert Sharif Farhat was granted in part. Farhat’s second opinion was granted as it was unopposed. The Court reserved the ruling on Plaintiff’s motion in limine in part, Farhat’s first and third opinions were reserved for further discussion with the parties at the final pretrial conference. However, Plaintiff’s motion in limine to exclude the January 10, 2020, email or limit references regarding the email was denied.

      2) Defendant’s motion in limine to exclude reference to or evidence of other lawsuits was granted as unopposed. Defendant’s motion in limine to exclude New York Lobbying Group’s letter criticizing Defendant’s Accelerate Incentive Program was granted as unopposed. Defendant’s motion in limine to exclude hearsay news articles was granted as unopposed.

      3) The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

      Key Takeaways

      In the legal proceedings between Racine Car Dealer, LLC (Racine) and Hyundai Motor America (HMA), expert testimony played a crucial role in shaping the narrative of the case. Racine sought to hold HMA accountable for alleged deceptive practices, withholding information, and changes to the dealer incentive program. The defense expert, Sharif Farhat, issued a “dealer network analysis” report opining on various aspects, including the reasonableness of HMA’s support for dealer efforts and disputing Racine’s claims of program disadvantages and coercion. Racine challenged the admissibility of Farhat’s opinions, arguing they lacked relevance and reliability. The Court acknowledged the dispute over exclusive facilities claims, and the relevance of Farhat’s opinions became a focal point during the trial, likely to affect the jury instructions and verdict form.

    9. Court precludes the expert from offering an opinion on someone else’s subjective beliefs or feelings

      Court precludes the expert from offering an opinion on someone else’s subjective beliefs or feelings

      Vincent McKinney’s death on April 15, 2021, at a U-Haul construction site led to a lawsuit, filed by his surviving spouse and next kin Alberta Louise Perry, Plaintiff, with Jenkins & Stiles, LLC, a construction company and the general contractor for the site, being the Defendant. Despite some disputed facts, parties agreed that McKinney, who was delivering cargo to the construction site, specifically five bundles of insulated panels, met his demise when the cargo, being unloaded by Curtis Kennedy, a forklift operator and jobsite superintendent for the Defendant, fell off the trailer and onto McKinney. McKinney lost his life on the scene.

      According to Kennedy, he directed McKinney to complete the unstrapping of the load so that Kennedy could initiate the removal of the cargo from the trailer using a forklift. Kennedy asserted that McKinney had removed all the straps before the offloading began, although he wasn’t entirely certain. Kennedy testified that, based on McKinney’s body language, he believed McKinney knew he was approaching with the forklift. As Kennedy commenced offloading the cargo, the bundles fell off the forklift and landed on McKinney, who was still positioned next to the trailer. 

      Shortly after the incident, an investigator named Michael Johnson (“Johnson”), representing the Tennessee Occupational Safety and Health Administration (“TOSHA”), arrived at the scene. Johnson conducted interviews with several witnesses, including Robert Hutton (“Hutton”), who was then an employee of Chattanooga Fire, LLC. During his statement to the TOSHA investigator, Hutton mentioned that, before the incident, Kennedy had already unloaded some cargo, as he saw it stacked nearby. Hutton reported hearing someone say, “Curtis your [sic] clear, Go”. Following that, he heard a crash and observed McKinney under the cargo. Hutton explicitly stated, “Everyone was clear, Curtis had a good visual of the work area. I didn’t see anything that appeared to be unsafe”. Unfortunately, Hutton passed away on August 3, 2022.

      As part of its expert disclosures, the Defendant identified Charles A. Eroh, P.E. Among several other conclusions, Eroh asserted that McKinney bore responsibility for the incident. This was attributed to his departure from the safe area at the driver’s side truck fender and entering the fall zone. Eroh claimed that McKinney was fully aware of ongoing offloading activities and had verbally communicated with Kennedy to proceed with the unloading.

      The Plaintiff contested Eroh’s conclusion under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc. The challenge asserted that Eroh’s determination that McKinney bore responsibility would not assist the jury since it was the jury’s role to make that determination. Additionally, the Plaintiff argued that Eroh should not be allowed to testify about McKinney’s state of mind. The Plaintiff further contended that Eroh should be prevented from referencing Hutton’s statement. In response, the Defendant generally argued that Eroh’s opinion was based on reasonable inferences drawn from his accident investigation and that he had the right to rely on the evidence he considered.

      Engineering Expert Witness

      Charles A. Eroh is a professional engineer who works as a Principal Consultant at Rimkus Consulting Group. He is expected to testify within a reasonable degree of professional certainty in the field of commercial machinery operation and construction site safety. Charles Eroh will offer testimony on issues such as training and certification of forklift operators and construction site workers, industry standards in forklift operations and construction site procedures, industry standards of equipment maintenance, forklift operating capabilities, and service, maintenance, inspection and troubleshooting for type of forklift used on April 15, 2021, and post-accident inspections to determine cause.

      Discussions by the Court

      Federal Rule of Evidence 702 required judges to ensure the relevance and reliability of any scientific testimony or evidence. The Court’s gatekeeping function, as established in Daubert v. Merrell Dow Pharmaceuticals, Inc., mandated that scientific testimony or evidence, including that based on specialized knowledge, be both relevant and reliable. The party offering the expert testimony bore the burden of proving admissibility, and district Courts had leeway in determining the reliability of expert testimony, with decisions subject to review for an abuse of discretion. The Court applied the current version of Rule 702, effective December 1, 2023, which clarified the preponderance standard for reliability-based requirements.

      According to the Plaintiff, Eroh’s opinion that McKinney bore responsibility for the incident was deemed unhelpful to the jury, as it was the jury’s role to determine such issues. Although Eroh may have based his opinion on reasonable inferences drawn from his accident investigation, including a review of the TOSHA report, Hutton’s written statement, Kennedy’s deposition, and other relevant information, the Court agreed that it constituted a legal conclusion. The Court cited Asbury v. MNT, Inc., No. CIV. 12-252 KG/RHS, 2014 WL 6914235, (D. N.M. Apr. 22, 2014), which struck an expert’s opinion as an impermissible legal conclusion. The Court further highlighted that experts were not permitted to render legal conclusions, as explained in United States v. Melcher, 672 F. App’x 547, 552 (6th Cir. 2016), when he defines the governing legal standard or applies the standard to the facts of the case. Legal conclusions were considered unhelpful to the jury since they instructed the jury on the verdict to reach. Accordingly, the Court ruled that Eroh’s opinion assigning responsibility to McKinney for the incident was not admissible.

      The Plaintiff also contested Eroh’s conclusion asserting that McKinney “was fully aware of ongoing offloading activities and had verbally communicated with Kennedy to proceed with the unloading”. Plaintiff argued that determining whether McKinney was fully aware was beyond Eroh’s expertise as he could not “read minds”. Eroh based this opinion on Hutton’s written statement, and Plaintiff contended that it was improper to rely on Hutton’s statement due to its inadmissible hearsay nature. The Plaintiff asserted that allowing the introduction of inadmissible hearsay through an expert’s opinion would be extraordinarily prejudicial.

      The Defendant responded by asserting that an “expert may rely on hearsay testimony”. Given that they retained Eroh to “inspect the accident site and determine the cause of the accident”, the Defendant argued that Eroh was permitted “to reference the witness statement in discussing his opinions and bases for them”. The defense contended that not only did Eroh rely on Hutton’s statement, but he also drew from various sources, including the TOSHA report, Kennedy’s deposition, his site inspection, and the photographs and videos captured by the Knox County Sheriff’s Office.

      The Plaintiff also mentioned a video recording taken by Attorney Graham Thompson on April 19, 2023, which included Hutton’s statements. However, according to the Defendant, Eroh reviewed this video after authoring his report, and “it did not form the basis of the opinions Eroh expressed in his written report”. The Defendant further stated that “Eroh testified in his deposition that although he reviewed that video, he did not remember what was said in it, and he believed it was similar to what was contained in Hutton’s written statement”. Since Eroh did not rely on the video recording, the Court did not address it.

      In reviewing the parties’ arguments, two issues were identified: (1) whether Eroh was allowed to rely on Hutton’s statement in forming his opinion, and (2) whether Eroh was permitted to express opinions about McKinney’s state of mind. Regarding the issue of Eroh’s opinion about McKinney’s state of mind, specifically that McKinney “was fully aware of ongoing offloading activities”, the Court ruled that Eroh was not allowed to opine at trial about McKinney’s state of mind. The Court cited the principle that “an expert may not offer an opinion on someone else’s subjective beliefs or feelings”. The Court highlighted that experts can rely on a witness’s testimony but may not opine on someone’s thoughts. Consequently, the Court did not need to address the first issue in the context of the Plaintiff’s motion. The Court noted that the admissibility of Hutton’s statement was being contested through motions in limine filed by both Plaintiff and Defendant.

      Held

      The Court granted in part and denied in part Plaintiff’s Motion to Exclude or Limit the Testimony of Charles A. Eroh and Any Undisclosed Opinion Testimony by Defendant Jenkins & Stiles. Eroh was not allowed to testify that McKinney bears responsibility for the incident, nor was he permitted to provide testimony about McKinney’s subjective beliefs. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

      Key Takeaways

      The expert testimony in this case played a crucial role in determining liability for the tragic incident at a U-Haul construction site, where a cargo unloading operation led to the death of Vincent McKinney. Charles A. Eroh, P.E., identified by the Defendant as an expert, asserted that McKinney bore responsibility for the incident, citing his departure from a designated safe area and entering the fall zone. However, the Court, applying Rule 702 of the Federal Rules of Evidence, ruled that Eroh’s opinion assigning responsibility was inadmissible as it amounted to a legal conclusion. The Court emphasized that experts cannot render legal conclusions, particularly those instructing the jury on the verdict to reach. Additionally, the Court held that Eroh’s opinion on McKinney’s state of mind, specifically regarding awareness of ongoing offloading activities, was not admissible, as experts cannot offer opinions on subjective beliefs or feelings. The admissibility of witness statements, including Hutton’s, was contested due to hearsay concerns, with the Court emphasizing the importance of avoiding the introduction of inadmissible evidence through expert opinions. Overall, the Court’s rulings underscored the need for expert testimony to adhere to legal standards, focusing on admissible evidence and avoiding impermissible legal conclusions or opinions on subjective states of mind.