Plaintiffs, BME Fire Trucks LLC (“BME”) and 223 Roedel Avenue LLC’s (“Roedel”), brought this action against their insurer, Defendant The Cincinnati Casualty Company (“Cincinnati”), seeking damages caused by a ruptured natural gas pipeline.
On October 31, 2022, BME submitted a claim to Cincinnati, and Cincinnati retained Brian Hansen of Northwest Investigative Engineering to inspect the property. On November 16, Hansen met with BME’s facility technician, conducted an on-site inspection, and examined the pipeline. The following day, Hansen issued an engineering report, in which he concluded a construction defect caused the pipe to corrode, resulting in the rupture.
Plaintiffs challenged the admissibility of Hansen’s expert opinions. These challenges include that Hansen is not qualified; he did not base his opinions on sufficient facts; he failed to explain his method; and he opined on a legal conclusion.
Engineering Expert Witness
Brian Hansen has a Bachelor of Science degree in mechanical engineering from Brigham Young University and is a registered professional engineer in eight states, including Idaho.
The Court disagreed that Hansen’s opinions are inadmissible. The record reflected that Hansen is qualified as an expert for purposes of opining on the issues in this case. During his deposition, he testified that he has had an Idaho professional engineering license since 1999; he has been retained thousands of times to investigate insurance claims; and he has practical experience involving utilities from his practice as a mechanical engineer and his prior work experience with Zilog where he was “in charge of chemical delivery [and] specialty gas delivery systems.”
Further, the Court found that Hansen’s opinions are supported by sufficient facts and data and the product of a reliable method. According to Hansen’s report, he conducted an on-site inspection, interviewed the facilities technician, examined the ruptured pipe and the trench in which it was located, and took photographs.
Additionally, the Court rejected Plaintiffs’ assertion that Hansen’s reliance on the Uniform Plumbing Code (UPC) and the National Fire Protection Association standards was inadmissible legal analysis.
Hansen’s opinions did not address substantive legal issues. For example, he is not opining on how to interpret the Policy’s language. Rather, he is opining on the applicable industry standards for burying a gas pipeline, which is not a matter of substance law nor an issue this Court can rule on as a matter of law.
Held
The Court declined to rule that Cincinnati’s expert, Brian Hansen’s opinions are inadmissible.
Key Takeaway
While instructing the jury as to the applicable law is the distinct and exclusive province of the Court, experts may opine on industry standards.
Case Details:
Case Caption:
BME Fire Trucks LLC V. The Cincinnati Casualty Company
Plaintiff C.B. alleged that Defendants Moreno Valley Unified School District and Superintendent Martinrex Kedziora (collectively “MVUSD” or “District”) cornered him on school grounds and tackled and handcuffed him on at least four separate occasions for exhibiting disability-related behavior.
Plaintiffs move for attorneys’ fees as the prevailing party under 42 U.S.C. § 1988. Under 42 U.S.C. § 1988 (“Section 1988”), a Court may, in its discretion, award reasonable attorneys’ fees in a suit seeking to vindicate rights under 42 U.S.C. § 1983. The Defendants filed an opposition to the Plaintiffs’ motion for attorneys’ fees. In support of the opposition, the Defendants filed the declaration of legal fee expert, Grant Stiefel.
Plaintiff filed a motion to strike the Stiefel Declaration, arguing that it contained impermissible legal argument and was inadmissible under Federal Rule of Evidence 702.
Attorney Fees Expert Witness
Grant Stiefel is an attorney fee consultant, testifying expert, and the principal of Litigation Limited, a boutique legal auditing firm. He has testified as a legal fee expert in over 160 lawsuits, including federal and state courts, private arbitrations, State Bar courts, and attorney-client fee arbitrations.
He received his juris doctor from the University of Southern California School of Law in 2000.
Considering the fact that the Stiefel Declaration is forty-two pages long while the Defendants’ opposition brief is barely four pages long, it appeared to the Court that the Defendants attempted to outsource the job of arguing the opposition to Stiefel, in violation of the Court’s local rules, legal precedent, and the rules of the State Bar. Moreover, Stiefel has not been an active licensee of the bar since 2017.
In other words, the Defendants presented no legal argument in their perfunctory four-page opposition. On the other hand, the Stiefel declaration was replete with impermissible legal arguments. For instance, Stiefel opined that “the Plaintiff’s counsel block-billed 694 hours. At counsel’s requested hourly rates, these block-billed fees total $446,450. Assuming a blockbilling discount rate of twenty percent, the total recommended lodestar reduction would be a conservative deduction of just 139 hours.”
The Court found that these violations are serious enough to warrant striking the offending declaration. As a result, the Plaintiff’s motion for attorneys’ fees was granted and the Plaintiff’s counsel was awarded $5,303,493.30 in attorneys’ fees.
Held
The Court granted the Plaintiff’s objections and request to strike the declaration of Grant Stiefel.
Key Takeaway:
Legal argument is reserved for the moving papers and should not be inserted into declarations. The Defendants in this case defer to their expert for legal analysis, but legal analysis is not the appropriate role of an expert.
Plaintiff Matthew Alan Hearn brought certain claims against the Defendants City of Bakersfield, police detective Christian Walter Hernandez V, police sergeant Nathan A. Anderberg, and probation officer S. Jauch, collectively “City Defendants,” and County of Kern, collectively “County Defendants”. He based these claims on their actions during a law enforcement encounter on September 27, 2020, in Bakersfield. He alleged six causes of action: (1) Battery; (2) Intentional Infliction of Emotional Distress; (3) Negligence; (4) Violations of California Civil Code Section 52.1 (Bane Act)-Civil Rights Violations; (5) Excessive Force; and (6) Unreasonable Search and Seizure.
Plaintiff retained psychology expert witness, Daniel S. Rubiaco to conduct a psychological assessment and behavior analysis of him during the incident. Defendants filed a motion to preclude Daniel S. Rubiaco from testifying under Rule 702.
Psychology Expert Witness
Daniel S. Rubiaco, Psy.D., LCSW, is a licensed psychologist practicing in a private setting in Bakersfield, CA. He graduated from The Chicago School of Professional Psychology – Los Angeles Campus in September 2017, earning a Doctor of Psychology in Applied Clinical Psychology. Additionally, he obtained a master’s degree in Social Work from California State University, Bakersfield, in 2007. Earlier, he completed two undergraduate degrees in Sociology and Communications at the University of California, Davis, in 2003.
His practice focuses on supporting adolescents, young adults, and professionals dealing with stress, anxiety, depression, posttraumatic stress disorder (PTSD), and major conflict. He has significant experience working with victims of violent crimes, guiding them through the complexities of the criminal court process.
Defendants argued that Rubiaco’s proposed testimony would not assist the jury in understanding the evidence or determining any key facts. They noted that he did not examine or interview Plaintiff, nor did he review his deposition. Instead, his testimony focused on Plaintiff’s behaviors, suggesting they “made logical and reasonable sense.”
Defendants referenced Federal Rule of Evidence 702 and relevant case law regarding the burden of proving admissibility. They emphasized the district court’s role as the “gatekeeper” for expert testimony, highlighting the necessity of “good grounds” for expert opinions.
Furthermore, Defendants contended that the jury needed to decide whether they conducted an unlawful search and seizure of Plaintiff’s vehicle and whether they used unreasonable force during the arrest. They maintained that these matters did not require the opinion of a psychologist like Rubiaco.
B. Plaintiff’s Argument
Plaintiff agreed with some of the case authorities cited by the Defendants but disagreed with their conclusions. He contended that Rubiaco would help the jury understand Plaintiff’s behavior during the arrest and detention, which he argued was abnormal. Plaintiff stated that Defendants could cross-examine Rubiaco on this matter.
C. Defendant’s Reply
In their reply, Defendants claimed that Plaintiff’s opposition failed to show how Rubiaco’s review of his alleged personality was relevant to the jury’s consideration. They cited case law and Federal Rules of Evidence 401, 402, 403, and 404, which address relevance, weighing of equities, and the inadmissibility of character trait evidence and its exceptions.
Ultimately, Defendants argued that Rubiaco’s opinions were neither relevant nor admissible, asserting that no exceptions applied to his testimony.
D. Analysis
Defendants sought to exclude Rubiaco’s testimony, focusing on the relevancy aspect. They did not argue that his testimony failed the reliability standard. The Court needed to independently assess whether Plaintiff met his burden regarding both prongs.
Rubiaco acknowledged in his report that he could not perform a clinical diagnosis of Plaintiff. He did not interview or assess Plaintiff directly. Additionally, he had not reviewed Plaintiff’s deposition before finalizing his report due to the absence of a transcript. He planned to amend the report after reviewing the transcript, indicating its importance.
His opinions were based on a limited review of discovery materials, including law enforcement reports, body-worn camera footage, medical records, and two recorded calls. He applied “the Generic Cognitive Model” to assess the Plaintiff’s cognitive structures and beliefs.
The Generic Cognitive Model (GCM) is a psychological framework used to understand how individuals process information and react to experiences. It posits that people have cognitive structures—mental frameworks and schemas—that shape their perceptions, thoughts, and behaviors in response to various situations.
For example, he opined that Plaintiff was “pro-law enforcement” based on two comments made during the incident. He argued that when Plaintiff experienced an activating event, automatic responses categorized information in a way that activated a maladaptive schema. Consequently, he claimed that Plaintiff’s emotional state led to defensive behavior.
Ultimately, the Court found that Rubiaco’s proposed testimony failed both the reliability and relevancy standards under Daubert. Plaintiff did not demonstrate that the Generic Cognitive Model applied reliably, given the lack of direct assessment or comprehensive review of Plaintiff’s history.
Moreover, Rubiaco’s main opinion lacked relevance. Although Plaintiff argued that this testimony would aid jurors, he did not clarify how it would assist in deciding the case. Thus, if admitted, Rubiaco’s testimony would distract jurors and risk confusion, further supporting its exclusion.
Held
The Court granted the Defendant’s motion to exclude the Plaintiff’s psychology expert witness, Daniel Rubiaco.
Key Takeaway:
The Court highlighted that Rubiaco did not directly assess the Plaintiff, failed to submit a comprehensive review of his background, and relied on a limited selection of materials. Additionally, the Court found that Rubiaco’s analysis did not clearly assist the jury in understanding key issues related to the case. Ultimately, the lack of direct engagement with the Plaintiff and insufficient clarity on how his insights would aid the jury led to the exclusion of his testimony.
Case Details:
Case caption:
Hearn v. City of Bakersfield
Docket Number:
1:22cv668
Court:
United States District Court for the Eastern District of California
A district judge in Louisiana admitted a law enforcement expert’s testimony summarizing police procedures.
Cortez alleged that on November 21, 2019, his wife had called 911 and requested that police be dispatched so she could leave their residence without incident because Cortez was in an agitated mood. Cortez averred that an altercation had ensued after Deputies Reese and Custard arrived on the scene.
Plaintiff brought this lawsuit to pursue claims of excessive force in violation of the Fourteenth Amendment; a cover up by Jefferson Parish Sheriff’s Office employees; and ongoing physical and psychological injuries.
Defendants Deputy Custard, Deputy Reese, and Sheriff Lopinto asserted that the claims alleged were frivolous, groundless, and unreasonable.
Defendants offered the testimony of Kerry Najolia to summarize police procedures and to analyze whether the Deputies met those standards. Plaintiff filed a motion to exclude eight of Najolia’s opinions contending they were inadmissible as per Daubert and Rule 702.
Law Enforcement Expert Witness
Kerry Najolia has been qualified as, and has testified as, an expert on police practice, procedure, training, police officer survival/defensive tactics, police use of force, and police canines in numerous Louisiana state and federal courts. He has worked in various divisions in law enforcement, which includes patrol, investigations, Training and SWAT.
The eight opinions in question found that the deputies’ actions were “authorized,” “consistent with their training” and “consistent with departmental policy, procedures, and protocols” at various stages of their interaction with Plaintiff. In support of his motion, Plaintiff argued that: (1) Najolia would need to repeat inadmissible hearsay at trial to explain these opinions (2) Najolia’s testimony is irrelevant, and (3) Najolia’s methodology is unreliable.
Najolia Will Not Need to Repeat Inadmissible Hearsay at Trial
Plaintiff argued that Najolia’s opinions about the Deputies’ use of force must be excluded because Najolia will necessarily need to repeat hearsay testimony at trial to express these opinions. He added that Najolia largely relies on an Offense Report written by Deputy Reese, who has not been deposed, for his understanding of the foundational facts of the case.
Plaintiff did not dispute that Najolia may express opinions in his expert report that are based, in part, on facts contained in an inadmissible report such as the Offense Report. Rather, he contended that Najolia will need to describe Deputy Reese’s hearsay statements at trial. Since, Defendants’ witness list noted that Deputy Reese will testify at trial, the Court held that Najolia may properly refer to her testimony after Deputy Reese testifies.
Najolia’s Opinions Do Not Constitute Improper Legal Conclusions
Plaintiff contended that Najoila will improperly invade the duty of the factfinder by offering conclusions on legal issues.
The eight opinions Plaintiff sought to exclude were tied to the police policies and procedures at issue. The opinions described various actions of the deputies as “consistent with their training” “appropriate” and “in accordance with the deputies training.” This language showed that Najolia intended to opine on whether the Deputies “comported with applicable policies and procedures.” The Court held that such testimony was permissible but Najolia will not be allowed to opine on the ultimate issues of whether the officer’s actions were generally “reasonable” under the applicable legal standard.
Plaintiff’s Concerns About Najolia’s Assumption of Facts were Properly Addressed on Cross-Examination, Not By Exclusion of His Testimony
Plaintiff argued that Najolia’s opinions should be excluded because his methodology was unreliable. Najolia, Plaintiff contended, improperly relied on the Defendants’ version of the facts while ignoring other record evidence. The Court held that this this argument was unavailing since Plaintiff’s concerns that Najolia’s opinions were based on incorrect and one-sided facts could be addressed at trial on cross-examination. These questions relate to the “bases” of Najolia’s opinions, and thus go to the “weight to be assigned that opinion rather than its admissibility.”
Held
The Court denied Plaintiff’s motion to exclude and held that Najolia may testify as to whether the Defendant Deputies acted in accordance with applicable policing standards, protocols, and trainings.
Key Takeaway:
Under Federal Rule of Evidence 704, an expert’s “opinion is not objectionable just because it embraces an ultimate issue.” Louisiana District Court has previously permitted Najolia to opine on whether police officers’ conduct was in accordance with specific policing standards. The eight opinions Plaintiff sought to exclude were tied to the police policies and procedures at issue and hence were permissible. Despite Plaintiff’s concerns that Najolia’s opinions are based on incorrect and one-sided facts, the Court held that Najolia’s testimony will be properly offered to summarize police procedures and to analyze whether the Deputies met those standards.
