Expert Witness Profiler

Tag: Industry Standard

  • The Insurance Expert’s Testimony on Claims Handling Contained Deficiencies

    The Insurance Expert’s Testimony on Claims Handling Contained Deficiencies

    This is an insurance coverage dispute arising from a car accident between Plaintiffs, in which Plaintiffs seek to enforce a liability insurance policy issued by Defendant to Plaintiff Anita Myers that was later assigned to Plaintiff Sarah Montalvan.

    Defendant sought to exclude the testimony of Peter Knowe, Plaintiffs’ designated insurance claims handling expert while Plaintiffs sought to exclude the opinions of GailAnn Stargardter, Defendants’ designated insurance claims-handling expert.

    Insurance Expert Witness

    Peter Knowe has specialized qualifications and experience in adjusting, investigating, and evaluating insurance claims. During his career in the insurance industry spanning 26 years, he was trained in evaluating and responding to policy limit demands and time-limited demands.

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

    Law And Legal Expert Witness

    GailAnn Y. Stargardter is a practicing attorney specializing in “insurance coverage and bad faith,” and has been practicing in Washington since 1988, and California since 2007.

    Stargardter’s practice is limited to insurance coverage and bad faith. Stargardter was previously employed as a claim attorney for an insurance company, where she reviewed files to “determine whether claims were being handled consistent with state and company requirements.” She also provides training to insurance clients regarding the California state settlement regulations, is a “co-author of California Insurance Law (The Recorder (2015)),” and previously testified as an expert witness.

    Discover more cases with GailAnn Stargardter as an expert witness by ordering her comprehensive Expert Witness Profile report.

    Discussion by the Court

    A. Defendant’s Motion to Exclude the Expert Testimony of Peter Knowe

    1. Qualifications

    Based on Knowe’s description of his experience and attached curriculum vitae, the Court found that Knowe is qualified to provide expert testimony in this case.

    Therefore, the Court denied the Knowe motion insofar as it sought to exclude, on the ground of Knowe’s lack of qualifications, his testimony regarding industry customs and practices in handling insurance claims.

    2. Reliability and Methodology

    Plaintiffs offered Knowe as an expert on the topic of whether Defendant “complied with the practices and standards of the insurance industry in its handling of the liability claim brought by Sarah Montalvan against Anita Myers.”

    Based on Knowe’s review of various materials, including Defendant’s claim file, the deposition transcript of Starla Tuck, Defendant’s claims adjuster, and other case specific documents, Knowe opined that Defendant’s claim handling “fell below the insurance industry standard of care” in twelve different ways.

    Based on the Court’s review of the Knowe Report, the Court agreed with Defendant that the Report (1) did not sufficiently articulate the bases for Knowe’s proffered “industry standards,” and (2) lacked a described nexus between the described industry standards and Knowe’s opinions.

    Analysis

    In his Report, Knowe listed sixteen standards “for claims handling,” which are “national in scope and apply in all states.” However, the Knowe Report did not identify the specific source for each standard.

    Other than to cite his training and experience, the Knowe Report did not explain how Knowe derived his sixteen standards from the above-referenced insurance industry texts and articles.

    In addition, as articulated by Defendant during the hearing on the motions, it is unclear whether each of the sixteen standards Knowe describes in his report were applicable when Defendant evaluated Plaintiffs’ claim in 2018. Further, even if the Knowe Report were to describe the basis for the standards described therein, it is unclear how Knowe “applied the principles and methods reliably to the facts of the case.”

    Nevertheless, the Court found that the above deficiencies may be curable. Based on Knowe’s described experience with insurance claims handling as a senior technical representative, manager of California-based field offices at a nationwide insurance company, and experience as an expert witness in other proceedings, the Court is inclined to give Knowe the opportunity to explain how he derived the 16 standards, whether those standards existed at the time of the claim, and how he applied the principles and methods reliably to the facts of this case.

    B. Plaintiffs’ Motion to Exclude GailAnn Stargardter

    1. Qualifications

    Plaintiffs presented no argument that Stargardter is unqualified. Based on Stargardter’s described experience, the Court found that she possesses sufficient “knowledge, skill, experience, training, or education” to provide expert testimony regarding insurance claim handling.

    2. Ultimate Issue Testimony

    Plaintiffs argued that “the Stargardter Report is a legal brief masquerading as expert testimony” in that the Stargardter’s opinions are no more that impermissible conclusions and are one-sided, incomplete, and unreliable.

    Based on the Court’s review of the Stargardter Report and Stargardter Rebuttal, the Court concluded that the Stargardter Report and Stargardter Rebuttal provided legal opinions on ultimate issues of law, and such opinions should be excluded.

    Anlaysis

    Stargardter opined that Defendant’s handling of Plaintiffs’ claims “was within the standard of care, consistent with the standards, customs, and practices in the insurance industry, compliant with the CUCPA and the Regulations, and compliant with National General’s own internal guidelines.”

    In particular, according to Stargardter’s opinion, Defendant “conducted a full, fair, objective and timely investigation of Sarah Montalvan’s claim,” “fully, fairly, objectively, proactively, and timely evaluated Sarah Montalvan’s claim, and extended settlement offers commensurate with the claims as documented by her counsel.”

    This opinion, plainly, amounts to legal analysis. The Stargardter Report and Stargardter Rebuttal rely on legal authorities to assert that Defendant’s handling of Plaintiffs’ claims was “within the standard of care, consistent with the standards, customs, and practices in the insurance industry, compliant with the CUCPA and the Regulations, and compliant with National General’s own internal guidelines.”

    The only portion of Stargardter’s testimony that does not provide legal analysis is what Defendant characterize as “a detailed claim-file chronology tracking Defendant’s handling from the initial loss report on September 24, 2017, through the filing of the suit.”

    Based on the Court’s review of the Stargardter Report and the parties’ arguments at the hearing, both the Stargardter Report and Stargardter Rebuttal offered legal opinions that will not be helpful to the jury

    Held

    Having considered the parties’ submissions, oral arguments, the relevant law, and the record in this case, the Court ordered the parties’ respective experts to file supplemental expert reports that address the deficiencies and reserved ruling on the motions until after the supplemental reports are filed.

    Key Takeaway

    In describing the bases for her opinions, Stargardter does not reference her experience handling insurance claims or Defendant’s internal guidelines. Neither the Stargardter Report nor Stargardter Rebuttal describe whether Defendant’s conduct was reasonable based on industry practices and norms.

    Case Details:

    Case Caption: Montalvan V. National General Insurance Company
    Docket Number: 5:25cv441
    Court Name: United States District Court, California Central
    Order Date: July 07, 2026
  • Pharmacology Expert Allowed to Opine on the Clinical Trial

    Pharmacology Expert Allowed to Opine on the Clinical Trial

    Alzamend Neuro, Inc is a clinical-stage biopharmaceutical company focused on developing treatments for Alzheimer’s disease and other neurodegenerative diseases. To advance the development of a new treatment called ALZN002, Alzamend sought to conduct a phase I/IIA clinical trial to evaluate its safety, tolerability, and preliminary efficacy.

    Biorasi, LLC is a contract research organization or clinical research organization (“CRO”) engaged in the business of providing clinical research services, clinical research professionals, and contract clinical, technical, and other related services.

    Alzamend asserted claims for breach of contract and fraudulent inducement after the ALZN002 Trial was derailed.

    Biorasi filed a motion to exclude the testimony of Plaintiff’s expert witness Dr. Frederick H. Hausheer while Alzamend sought to exclude the testimony of Biorasi’s rebuttal experts, Emily Friedrich and Aimon Iftikhar.

    Pharmacology Expert Witness

    Frederick Herman Hausheer, M.D. is a physician-scientist and biopharmaceutical research executive with over 37 years of experience in clinical drug development, including extensive Phase I–III clinical trial management under FDA and other international regulatory frameworks.

    He earned his M.D. from the University of Missouri-Columbia (completing medical school in three years), completed his internship and residency training there. He has held board certifications in Internal Medicine (since 1985) and Medical Oncology (since 1987). Hausheer completed a fellowship in Medical Oncology (in two years, with promotion to faculty) at the Johns Hopkins Oncology Center and Hospital, concentrating in Pharmacology and Experimental Therapeutics research and development.

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

    Biomedical Engineering Expert Witnesses

    Emily Friedrich is a licensed Project Management Professional certified in Good Clinical Practices. Friedrich also holds a Bachelor of Science in Molecular Genetics and Biochemistry with a minor in Chemistry from the University of Pittsburgh granted in 2007 as well as a Master of Science and a Doctor of Philosophy in Biomedical Engineering from Carnegie Mellon University.

    She completed postdoctoral training at Northwestern University Feinberg School of Medicine in the Department of Surgery and held a Research Instructor position at the University of Illinois at Chicago in the Department of Pharmacology. Friedrich also served as a Biomedical Research Program Manager at a military treatment facility.

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

    Dr. Aimon Iftikhar specializes in clinical research and development of medical devices with a focus on assessing clinical efficacy and accuracy in real-world settings. She has a Bachelor of Science degree in Biomedical Engineering with minors in Mathematics and Materials Science and Engineering from the University of Connecticut, a Master of Science degree in Biomedical Engineering from Carnegie Mellon University, and a Doctor of Philosophy in Bioengineering with a concentration in Tissue Engineering & Regenerative Medicine from the University of Pittsburgh.

    Gain a comprehensive understanding of Aimon Iftikhar’s qualifications and casework history with her Expert Witness Profile report.

    Discussion by the Court

    A. Biorasi’s Motion to Exclude Frederick Hausheer

    i. Methodology

    Though Biorasi contended that Hausheer relied exclusively on assumptions to form his opinions, Hausheer’s report cited an extensive list of references and supporting documents reviewed including training materials, training logs, resumes, protocol deviation logs, emails, meeting minutes, call notes, as well as various plans regarding protocol deviation, quality management, and risk management.

    Biorasi also contended that Hausheer’s opinions are merely ipse dixit, but Hausheer explained that the conduct of the ALZN002-01 clinical trial “is guided by the International Council for Harmonisation (ICH) Good Clinical Practice (GCP) guidelines, which are universally recognized as industry standards of practice and are consistent with FDA regulations.” References to Good Clinical Practice guidelines are frequent throughout Hausheer’s report regarding industry standards for qualified personnel and training, trial plans, monitoring, quality management, and blinding and communication controls.

    The Court found that Hausheer’s opinions are not based on mere ipse dixit, but rather the result of reviewing record evidence and measuring the evidence against established industry standards in the context of his own substantial professional experience.

    ii. Helpfulness

    Biorasi argued that Hausheer’s opinions are not helpful for the same reasons it argued they are unreliable. However, the Court already found Hausheer’s opinions to be based on a reliable methodology. Moreover, the Court found Hausheer’s opinions would assist the trier of fact.

    B. Alzamend’s Motion to Exclude Dr. Emily Friedrich and Dr. Aimon Iftikhar

    i. Qualifications

    The Court found that both Friedrich and Iftikhar possess substantial clinical experience and possess certifications in the industry standards relied on by Alzamend’s expert, Hausheer.

    ii. Methodology

    Alzamend argued that because Biorasi’s proposed experts lack experience in double-blinded trials, their methodology is unreliable.

    However, Alzamend cited no case law or statutory authority for its contention that rebuttal experts who possess both clinical experience and certifications in the relevant industry standards should be excluded because they lack adequate double-blinded clinical experience.

    The Court found this methodology to be sufficiently reliable. Alzamend’s
    assertions of lack of experience in double-blinded studies goes to the weight, not the admissibility of the testimony and may be the subject of cross-examination.

    iii. Helpfulness

    Alzamend argued that the rebuttal experts’ opinions are not helpful because they impermissibly usurp the role of the fact finder.

    However, the Court found that the rebuttal experts’ opinions will assist the trier of fact in this case. The rebuttal experts’ assessment of the double-blinded trial, considering their substantial experience and analysis of industry standards, concerned matters that are beyond the understanding of the average lay person.

    As to Alzamend’s categorical objections to credibility determinations, weighing competing evidence, or rendering factual conclusions, Biorasi contended that the rebuttal experts are merely pointing to evidence that contradicts the assumptions relied on by Hausheer. The Court agreed with Biorasi, and it is permissible for an expert to review facts and extrapolate opinions from those facts based on experience and industry standards.

    Held

    • The Court denied Biorasi’s Daubert motion to exclude the testimony of Plaintiff’s expert witness Dr. Frederick Hausheer.
    • The Court denied Alzamend’s Daubert motion to exclude the testimony of rebuttal experts, Emily Friedrich and Aimon Iftikhar.

    Key Takeaway

    The qualification standard for expert testimony is not stringent and so long as the expert is minimally qualified, objections to the level of the expert’s expertise go to credibility and weight, not admissibility.

    Case Details:

    Case Caption: Alzamend Neuro, Inc. V. Biorasi, LLC
    Docket Number: 1:25cv20481
    Court Name: United States District Court, Florida Southern
    Order Date: June 16, 2026
  • Law And Legal Expert Not Allowed to Opine on Extinguishment of Debt

    Law And Legal Expert Not Allowed to Opine on Extinguishment of Debt

    Plaintiff Charm Hospitality, LLC filed this lawsuit alleging, inter alia, legal malpractice against Defendant Nohayia Javed, Esq. Specifically, Charm made various allegations, in which it contended that Javed fell below the standard of care in her representation of Charm in connection with her prosecution of an insurance claim relating to water damage sustained at a Hotel owned by Charm in Elko, Nevada. The Hotel and the business’ personal property (“BPP”) were insured by General Security and Indemnity Company of Arizona (“GSICA”), and Defendant West Town Bank & Trust (“WTB”) held a Deed of Trust and Promissory Note secured by the Hotel and the BPP, as well as a personal guaranty from Charm’s sole owner and member, Param
    Kaur.

    West Town Bank and Javed filed a motion to strike Plaintiff’s rebuttal expert, Brian P. Worthington.

    Law And Legal Expert Witness

    Brian Paul Worthington is a 1991 graduate of the University of Wisconsin, and a 1995 graduate of the University of San Diego School of Law. He was a partner at Wingert, Grebing, Anello & Brubaker, and then Ryan, Mercaldo & Worthington before starting a solo practice in 2012.

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

    Discussion by the Court

    WTB argued that Worthington, in his expert report, offered nothing more than improper legal conclusions about his interpretations of the insurance policy and the application of NRS 40.455.

    Here, Worthington opined that WTB is not entitled to receive policy benefits under the insurance policy based on the language in the loss payable provisions endorsement because it no longer has a financial interest in the property. This is a legal conclusion because it improperly interpreted the insurance policy.

    Moreover, Worthington’s opinion is devoid of any discussion on industry standards, claims-handling practice, underwriting customs, etc.

    Worthington further opined that “the ‘entire’ debt was eliminated, extinguished, and forever barred from collection when the deadline in NRS 40.455(1) elapsed” and that “once the sixth-month deadline in NRS 40.455 passed with no deficiency action, Charm Hospitality’s debt to WTB was extinguished and WTB ceased to have any financial interest in the insurance proceeds.” Again, this is improper because it applies the relevant law to the facts and draws a legal conclusion regarding extinguishment of the debt. 

    Accordingly, the Court struck Worthington’s opinion interpreting the insurance policy and applying NRS 40.455.

    Held

    The Court granted WTB’s motion to strike Plaintiff’s rebuttal expert Brian Worthington.

    Key Takeaway

    Expert testimony cannot be used to provide legal meaning or interpret the policies as written. In other words, expert testimony which purported to interpret a statute and opine as to whether it was violated was an improper legal conclusion. 

    Case Details:

    Case Caption: Charm Hospitality LLC V. Javed
    Docket Number: 2:25cv282
    Court Name: United States District Court, Nevada
    Order Date: June 11, 2026
  • Neurology Expert Was Not Allowed to Opine on Credibility of Other Witnesses

    Neurology Expert Was Not Allowed to Opine on Credibility of Other Witnesses

    This civil action arises from a motor vehicle accident involving Plaintiff Sarah Kollman on February 20, 2019. The other driver, Taylor Bonello, was at-fault for the collision, which Plaintiff alleged caused her physical injuries.

    At the time of the collision, Bonello was insured for liability with Progressive Insurance company for $100,000.000. Plaintiff had an underinsured motorist (UIM) policy with Defendant State Farm Mutual Automobile Insurance Company. After receiving permission from Defendant, Plaintiff settled with Bonello for the $100,000.000 policy limit. Plaintiff then demanded the full UIM limits of $100,000.000 from Defendant under her policy. Defendant refused to pay, saying that all of Plaintiff’s damages were covered by the money she received from Progressive. In response, Plaintiff brought the instant lawsuit for breach of contract and breach of implied duty of good faith and fair dealing.

    Plaintiff sought to limit the opinions and testimony of two of Defendant’s proposed expert witnesses, Dr. Haley Burke and Keith Olivera while Defendant sought to limit the testimony of Plaintiff’s proposed expert Jeremy A. Sitcoff.

    Neurology Expert Witness

    Haley A. Burke is board-certified in neurology, psychiatry and interventional pain management. Burke has first-hand experience and training working with breast cancer patients who had similar surgeries from when she studied at Anderson Cancer Center in Houston, Texas.

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

    Insurance Expert Witnesses

    Keith R. Olivera is an attorney duly licensed to practice law in Colorado who has practiced in excess of 30 years in various fields of insurance, including good faith/bad faith law. He is an expert in the fields of civil litigation and insurance industry standards.

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

    Jeremy Andrew Sitcoff has been licensed to practice law in Colorado for over twenty-seven years. For more than twenty-two years approximately 85% of my practice has been devoted to insurance coverage, claims handling practices and procedures, and insurance breach of contract and bad faith on behalf of policyholders.

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

    Discussion by the Court

    A. Haley Burke, MD

    Plaintiff argued that Burke, who is certified in neurology, psychiatry, and pain management, is not qualified to make opinions regarding the Traffic Accident Report or Plaintiff’s lumpectomies and breast reconstructive surgery, Lyme disease, sinus and eye surgery, mental health, dental health, shoulder pain, and gastrointestinal issues.

    1. Burke’s qualifications

    Burke did not render an opinion regarding the Traffic Accident Report; she merely reiterated how the State of Colorado defines an “01” severity for an injury. The Court cannot identify where in Burke’s report Plaintiff claimed that she stated an opinion on the Traffic Accident Report. In addition, Burke’s discussion of PTSD is included as part of a summary of another provider’s neurocognitive testing of Plaintiff. As none of these comments involve Burke’s own opinions or “scientific, technical, or other specialized knowledge,” they are not properly challenged under Rules 702 and 403.

    Next, the fact that Burke did not cite any articles or provide a more detailed basis for her opinion that Plaintiff’s sinus and cataract surgery, mold exposure, fall, gluten intolerance, and Lyme disease potentially contributed to her symptoms did not necessarily make these opinions unreliable.

    The Court found that Burke is qualified to opine on the possible effects of Plaintiff’s lumpectomies, breast reconstructive surgery, shoulder pain, and mental health. The Court also found that Burke is qualified to know that these “are major surgeries and would be expected to contribute to stress and pain for many people.”

    Finally, Burke is also qualified and permitted to comment on the tests and practices employed by other providers who treated Plaintiff. As long as a subject is within an expert’s area of expertise, as is the case here, he or she may conclude whether he or she agrees with another’s data and opinions. Burke’s comments are not attacks on the other providers’ credibility but rather their substantive practices.

    2. Burke’s Rebuttal Report

    In contrast to Burke’s initial report, the rebuttal report is largely an attack on the credibility of Plaintiff’s experts. She specifically called into doubt the qualifications of Plaintiff’s experts and the believability of their testimony.

    Therefore, the Court appropriately excluded portions of Burke’s rebuttal commenting on the qualifications of Plaintiff’s expert witnesses.

    Other parts of the rebuttal report, such as the section discussing the records from Parker Vision Specialists, are appropriately limited to contradicting Plaintiff’s expert’s opinions and do not put forward new arguments or theories. Therefore, these portions of the report are admissible.

    B. Keith Olivera

    Plaintiff argued that several opinions of Defendant’s insurance expert, Olivera, should be excluded because he impermissibly drew legal conclusions, cited unreliable industry standards, and included irrelevant information.

    1. Legal conclusions

    Plaintiff cited 21 opinions that it argued are legal conclusions regarding the reasonableness of Defendant’s actions and complicity with industry standards.

    The Court agreed that throughout Olivera’s report, he impermissibly conflated Colorado insurance industry standards with case law to draw conclusions about the reasonableness of Defendant’s actions.

    Defendant stipulates to striking opinions 10, 11, 15, and 19. In addition, opinion 14 is not an application of either industry or legal standards to the facts of the case. While it is Olivera’s opinion that Burke’s testimony supported Defendant’s position, opinion 14 is not a conclusion regarding whether Defendant’s evaluation of or reliance on Burke’s report was in line with industry or legal standards. Therefore, the Court found Plaintiff’s argument is not applicable to opinion 14 and will not strike it.

    Out of the remainder of the 21 opinions cited by Plaintiff in this section of their motion, opinions 4, 5, 6, 9, 12, 13, 16 are permissible testimony regarding Defendant’s conformity with industry standards, not legal standards. On the other hand, opinions 2, 8, 17, 18, 20 are impermissible conclusions regarding the reasonableness of Defendant’s conduct, which is a matter of law.
    The Court also excluded opinions 1, 3, 7, and part of 21 because they are conclusions resulting from application of case law and statutory law to the facts of the case.

    2. Support for industry standards

    Plaintiff challenged 7 of Olivera’s opinions as based on industry standards that are not codified and have not been shown to be generally accepted. The Court disagreed, finding that at the beginning of his report, Olivera adequately stated a basis for the industry standards he cited.

    In his report, Olivera “identifies what he perceives as the relevant insurance industry standards, explains those standards, and states that he relied on his experience in the insurance industry in forming his opinions as to whether State Farm met those standards.”

    He clearly tied each of his opinions to an identified industry standard and stated the basis for that standard, citing Colorado case law, statutes, and his 40 years of experience in the insurance industry. Therefore, the Court found that the seven challenged opinions are not unsupported ipse dixit statements but are instead based on clearly articulated sources.

    3. Ties to factual observations

    Plaintiff argued that Olivera’s report failed to connect the case law and standards cited in pages 6-7 of his report to the facts of this case.

    As discussed above, Olivera may not directly opine on whether Defendant’s conduct was unlawful under the case law and statutes cited. However, courts in this district have noted that case law and statutes inform insurance industry standards, and experts are permitted to testify whether a Defendant’s conduct “conformed with specific industry standards, including ones identified in Colorado statutes.”

    Therefore, Olivera cannot tie the case law and statutes in pages 6-7 of his report directly to the facts of the case. However, as Olivera used the law and statutes to provide a basis for the industry standards he applied throughout his opinion, his discussion of them is admissible.

    4. Methodology and supporting facts

    Plaintiff argued that Olivera failed to provide any methodology or supporting facts for two of his opinions. However, Plaintiff’s argument reads not as a challenge to Olivera’s methodology but rather as a rehash of her argument that Olivera did not provide a basis for the industry standards cited. The Court has already discussed that Olivera provided sufficient bases for the industry standards he applied. To the extent Plaintiff disagreed with Olivera’s conclusion that it was consistent with industry standards for Defendant to consider Burke’s IME report, she may address her disagreement through cross-examination at trial.

    5. Rebuttal Opinion

    Plaintiff objected to Olivera’s rebuttal statement that he disagreed with Sitcoff’s “discussion of the case law, statutes, and regulations that provide Colorado insurance industry standards” to the extent it is inconsistent with his own.

    Plaintiff argued that it is unclear what Olivera specifically opposes. Olivera’s general statement of disagreement is supported by the lengthy discussion of case law, statutes, and regulations included in his initial report and to which he refers to as the basis for his disagreement in the rebuttal. He did not seek to introduce new facts or information to support his disagreement. Therefore, the Court found that Plaintiff is adequately on notice for the basis upon which Olivera disagreed with any of Sitcoff’s contrasting opinions.

    C. Jeremy Sitcoff

    Defendant argued that eight of Sitcoff’s opinions are not supported by any referenced industry standard and that he impermissibly drew legal conclusions from applying the law to the facts of the case.

    The Court excluded Opinions 2, 5, 6, and 7 as impermissible legal conclusions because they commented on the reasonableness of Defendant’s investigation, which was a legal determination reserved for the jury. In contrast, the Court held that Opinions 3, 4, and 8 drew conclusions based on industry standards rather than legal standards and were therefore admissible.

      Held

      • The Court granted in part and denied in part Plaintiff’s motion to limit the testimony of Defendant’s retained expert Haley Burke.
      • The Court granted in part and denied in part Plaintiff’s motion to limit the testimony of Defendant’s insurance industry expert Keith Olivera.
      • The Court granted in part and denied in part Defendant’s motion to exclude the opinions of Jeremy Sitcoff.

      Key Takeaway

      Physicians frequently rely on medical knowledge, physical examination, and patient history to form opinions, all of which are “routinely admitted in federal courts because this methodology is widely accepted among the relevant scientific community.” 

      Case Details:

      Case Caption: Kollmann V. State Farm Mutual Automobile Insurance Company
      Docket Number: 1:23cv2802
      Court Name: United States District Court, Colorado
      Order Date: April 23, 2026
    1. Human Resources Expert Not Allowed to Opine on Employees’ Rights

      Human Resources Expert Not Allowed to Opine on Employees’ Rights

      Plaintiff Toby Pack, a CSX employee, applied for leave under the Family and Medical Leave Act (FMLA) due to chronic kidney stones. Although CSX initially approved Pack’s application, it subsequently charged him with FMLA misuse and terminated him.

      Pack sued, alleging that CSX fired him in retaliation for his taking FMLA leave. Pack intended to offer the expert testimony of Beth De Lima, but CSX argued that De Lima’s testimony should be excluded.

      Human Resources Expert Witness

      Beth B. De Lima has extensive experience in developing and implementing HR programs and policies that relate to federal and state employment legislation. She has been assisting corporate, non-profit, and governmental clients with HR policy development and implementation since 1992.

      She has worked closely with clients to establish and maintain compliance with federal and state employment legislation, including the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).

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

      Discussion by the Court

      De Lima’s report touches on several topics, including employees’ legal rights under the FMLA and employers’ legal obligations under the FMLA.

      A. Relevance

      The jury in this case will be asked to determine whether CSX terminated Pack in retaliation for Pack’s use of FMLA leave. CSX argued that De Lima’s opinion is not relevant to that question.

      The Court agreed. CSX’s alleged noncompliance with industry standards did not make it any more likely that CSX retaliated against Pack. If CSX had deviated from its own standard procedures in investigating Pack, that might be probative of retaliation.

      But CSX having different procedures from other companies did not show that CSX’s explanation for terminating Pack is “unworthy of credence.”

      B. Reliability

      In her report, De Lima said that the industry standards to which she alludes are “set forth by the Society for Human Resource Management.” But the report never cited specific documents or guidance promulgated by this organization. During her deposition, De Lima confirmed that the standards on which she relied are “written down.” However, when asked which of the sources in her bibliography support her opinions, she was unable to provide an answer. Instead, she asserted that the FMLA itself supports her opinions. When asked which part of the FMLA supports her opinions, she said “it’s not clear.”

      In his supplemental briefing, Pack identified five publications from The Society for Human Resources Management which he claims supported De Lima’s opinion. But the supplement never asserted that De Lima actually relied on those publications in forming her opinion and none of the publications are included in De Lima’s bibliography.

      Since neither Pack nor De Lima has identified the basis for De Lima’s testimony, they are too unreliable to be admitted under Federal Rule of Evidence 702. Even if De Lima’s opinion were relevant, the Court would exclude it under Rule 702.

      Held

      The Court granted Defendant CSX Transportation, Inc.’s motion to exclude the testimony of Plaintiff’s expert Beth De Lima.

      Key Takeaway

      Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.

      The trial court’s gatekeeping function requires more than simply taking the expert’s word for it.

      Case Details:

      Case Caption: Pack V. CSX Transportation, Inc.
      Docket Number: 3:24cv688
      Court Name: United States District Court, West Virginia Southern
      Order Date: May 06, 2026
    2. Insurance Expert Not Allowed to Opine on Industry Standards

      Insurance Expert Not Allowed to Opine on Industry Standards

      This action arises from an insurance claim related to a vehicle fire that occurred on May 31, 2024, in Arkansas while Plaintiff Anthony Nicholas was driving from Tennessee to Oklahoma. Plaintiff submitted a claim to Defendant Progressive Direct Insurance Company that same day. Plaintiff alleged that Defendant failed to handle the claim in good faith and improperly subjected him to a fraud investigation.

      Also, Plaintiff retained Deborah C. Rankin as an expert related to Progressive’s handling of Plaintiff’s comprehensive coverage claim.

      Rankin’s expert report outlined her opinions on standards she asserted formed the basis for properly handling insurance claims and Progressive’s failure to follow those standards.

      Defendant filed a motion to exclude the testimony of Plaintiff’s expert Rankin.

      Insurance Expert Witness

      Deborah C. Rankin worked as a licensed insurance adjuster for thirty-three years, retiring from State Farm Insurance in 2016.

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

      Discussion by the Court

      I. Rankin is not qualified to provide expert testimony in this case

      While Rankin stated that she handled hundreds of property claims earlier in her career, Defendant noted that the last such claim she handled was in 1995.

      The Court found that Rankin is likely not qualified to offer expert testimony in this case. Rankin has been admitted as an expert in another case in this district, though that case dealt with an action for bad faith breach of a UM/UIM motorist policy. This case doesn’t involve a UM/UIM claim, but rather a comprehensive property claim.

      The Court is unconvinced that Plaintiff has met his burden to show that Rankin’s experience is sufficiently timely to qualify her as an expert in testifying to the claims handling process for comprehensive claims such as this. In reviewing the cases in which Rankin represents she’s provided expert testimony, it appears none of these cases were related to comprehensive claims like the one in this case. None of this is to say that Rankin might not be qualified to testify as an expert in a UM/UIM case—indeed, she has been—but that isn’t this case.

      II. Rankin’s opinions are not reliable

      Even if the Court had found Rankin qualified to opine on the issues in this case, the Court did not find Rankin’s methodology and reasoning reliable, for the simple reason that it was not clear to the Court how Rankin arrived at her reported conclusions. Rankin’s report failed to cite any specific industry standards to which insurers were to be held. Rankin vaguely stated that “insurance standards are based on multiple sources that work together to result in best practices.” She went on to say that those standards were based on state law, state case law, industry training, and best practices, but other than a cursory cite to the Unfair Claims Settlement Practices Act, Rankin did not further develop the foundation for the industry standards with which she contrasted Progressive’s actions.

      Further, the Court was uncomfortable admitting Rankin as an expert because, as the Defendant noted in her report, she misstated Oklahoma law in arguing that insurance adjusters were required to be licensed in Oklahoma and meet venue-specific training requirements.

      III. Rankin’s testimony will not assist the triers of fact to determine the facts in issue

      Finally, Plaintiff has failed to demonstrate how Rankin’s testimony will help the trier of fact to understand the evidence or to determine a fact in issue. The question in this case is whether Progressive “unreasonably, and in bad faith,” withheld payment of Plaintiff’s claim. Bad faith is a common law tort that requires the judgment of “reasonable, prudent people.”

      The jury will be called upon to consider the facts of the case and apply its own conceptions of reasonableness to them in rendering its verdict. The jury is not required to determine the reasonableness of Progressive’s actions with respect to any industry standards. That isn’t to say that failure to comport with industry standards can never be probative of bad faith, but when those “industry standards” are based on amorphous, vague, and sometimes incorrect references to supposedly governing laws, the testimony is more likely to confuse the jury than aid it.

      Held

      The Court granted Defendant’s motion to exclude the testimony of Plaintiff’s expert Deborah Rankin.

      Key Takeaway

      Plaintiff has failed to show that Rankin’s opinions reflect a reliable application of principles and methods to the facts of the case due to her inability to properly interpret Oklahoma law related to adjuster licensing.

      Case Details:

      Case Caption: Nicholas V. Progressive Direct Insurance Company
      Docket Number: 5:24cv813
      Court Name: United States District Court, Oklahoma Western
      Order Date: March 31, 2026
    3. Psychology Expert Allowed to Opine on EMDR Therapy

      Psychology Expert Allowed to Opine on EMDR Therapy

      Oriental Trading Company, Inc. (“OTC”) is a retailer of novelties and gifts. Plaintiff Keith Kirksey is an African American male who began his employment with OTC on or about June 1, 2017.

      According to Kirksey, during his employment, he experienced a series of racially targeted incidents including the placing of a noose in his workspace and the placing of a clown head with, what he perceived as, a noose around its neck where Kirksey would see it. He reported these incidents to OTC who indicated it would investigate. Kirksey was dissatisfied with OTC’s investigation, and its outcome, and thereafter felt unfairly targeted by OTC in retaliation for his reporting.

      Kirksey filed a complaint against OTC stemming from his employment alleging claims of race discrimination, retaliation, and harassment/hostile work environment as well as negligent infliction of emotional distress.

      In an effort to establish his claims, Kirksey engaged Jerry Authier, Ph.D. as an expert. Authier is clinical psychologist licensed in Nebraska who was retained to conduct a psychological evaluation of Kirksey. In an effort to rebuke Kirksey’s claims, OTC designated Timothy D. Loudon as an expert in the field of human resources and workplace investigations.

      OTC filed a motion in limine to exclude the testimony of Plaintiff’s expert witness Authier and Kirksey filed a motion to exclude the testimony of Loudon.

      Psychology Expert Witness

      Jerry L. Authier, Ph.D. is a clinical psychologist licensed in Nebraska. He has been practicing psychology in Omaha since 1973.

      He obtained his bachelor’s degree in psychology and doctorate in clinical psychology. Throughout his 50-year career, Authier was the director of behavioral science at the University of Nebraska and Clarkson Family Medicine and saw patients in private practice. Authier has authored various articles and books and presented at a range of conferences, primarily during his years as an educator.

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

      Human Resources Expert Witness

      Timothy D. Loudon has a juris doctor degree, is licensed to practice law in multiple states, and has practiced labor and employment law in various capacities since 1981.

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

      Discussion by the Court

      Authier

      OTC did not move to preclude Authier from testifying altogether but sought
      to limit his testimony to that of a treating provider. OTC primarily argued that Authier’s opinions should be excluded because the foundation of Authier’s opinions rest solely on information Kirksey (and perhaps his counsel) conveyed to him.

      Authier opined that Kirksey suffers from post-traumatic stress disorder, persistent depressive disorder with paranoid ideation, and generalized anxiety disorder. He further concluded that Kirksey’s negative psychological and psychiatric symptoms are attributable to Kirksey’s time working at OTC. In reaching these conclusions, Authier used a diagnostic interview, Minnesota Multiphasic Personality Inventory, 2nd Edition (“MMPI-2”) and the Sachs Sentence Completion Test. Authier further opined that Kirksey would need weekly psychotherapy sessions for an indeterminate amount of time but “at least a year if not longer and possibly the rest of his life.”

      During his deposition, taken almost a year after his diagnostic interview, Authier testified that Kirksey did not participate in weekly therapy sessions with him. Authier stated that at the time he wrote his opinion he believed weekly therapy sessions would be the best way for Kirksey to recover from his symptoms.

      Authier further testified that he is not an expert in EMDR therapy but stated it might be of help to Kirksey, when done with a specialized provider, to work through some of the symptoms of trauma. Similarly, Authier testified that he is not licensed to prescribe medication but that “the research shows that [psychotherapy along with medication] is the best way to help people that are struggling with psychiatric and psychological symptoms.

      Analysis

      First, OTC argued that Authier’s opinions are irrelevant because the June 18, 2020, incident (of which Authier’s opinion relies) is outside the applicable statute of limitations for Plaintiff’s claims in this lawsuit.

      However, the Court found that Authier’s opinions regarding Kirksey’s conditions and the source of those conditions is wholly relevant to the ultimate issues in this case and his testimony would be useful to the finder in fact when deciding those issues.

      OTC sought to exclude Authier’s opinions as to EMDR therapy and psychotropic medications based on his qualifications. While Authier testified that he is not an expert in EMDR nor a medical doctor, his limited opinions on these two topics fall within his purview of a clinical psychologist.

      Authier did consider whether Kirksey’s symptoms could be attributable to other causes – such as childhood trauma. He determined based on his testing and clinical experience that this was unlikely. Moreover, when presented with records from a prior provider, Authier did not change his opinion.

      The Defendant did not identify any plausible alternative cause of Kirksey’s conditions, thus strengthening the Court’s conclusion that the methodology employed by Authier is reliable. In addition to the diagnostic interview, Authier had approximately 16 sessions with Kirksey which confirmed Authier’s impressions and diagnosis of Kirksey.

      Authier’s clinical impressions, based on his standardized diagnostic tools and his diagnostic evaluation, is that Kirksey is experiencing symptoms and those symptoms are tied to his time at OTC.

      Moreover, OTC sought to exclude Authier’s opinion relating to his original recommendation that Kirksey participate in weekly psychotherapy sessions, arguing it is speculative and unsupported by the facts. The Court found that this information may provide context to the testimony at trial.

      Loudon

      Loudon opined about OTC’s handling of each of Kirksey’s complaints. To sustain a claim against OTC for a racially hostile work environment, Kirksey must show (1) he is a member of a protected group, (2) he was subjected to unwelcome harassment, (3) the harassment was based upon race, (4) the harassment affected a term, condition, or privilege of employment, and (5) the employer knew or should have known of the racially discriminatory harassment and failed to take prompt and effective remedial measures to end the harassment.

      At the time of trial, the “promptness” and “effectiveness” of an employer’s response is a question of fact for the jury to resolve and a matter for the Court to instruct.

      Allowing Loudon to testify as an expert to the “adequacy” and “reasonableness” of OTC’s investigation would invade the province of the jury.

      Held

      • The Court denied Defendant Oriental Trading Company’s motion in limine to exclude the testimony of Plaintiff’s expert witness Jerry Authier.
      • The Court granted Plaintiff Keith Kirksey’s motion to exclude the testimony of Timothy Loudon.

      Key Takeaway

      With respect to differential diagnosis, opinion testimony is unreliable “only when an opponent points to a plausible alternative cause of the injury and the doctor offers no explanation for concluding that it was not the sole cause.”

      OTC’s attacks regarding the completeness of Authier’s methodology go to the weight and not the admissibility of his testimony.

      Case Details:

      Case Caption: Kirksey V. Oriental Trading Company Inc.
      Docket Number: 8:24cv268
      Court Name: United States District Court, Nebraska
      Order Date: March 09, 2026
    4. Human Resources Expert Was Not Allowed to Opine on an Employer’s Obligations

      Human Resources Expert Was Not Allowed to Opine on an Employer’s Obligations

      Plaintiff Andrew Brown alleged that CSX Transportation, Inc. violated his rights under the Family and Medical Leave Act (FMLA) by subjecting him to CSX’s attendance policy and by suspending and ultimately terminating him for taking FMLA leave.

      Brown hired Beth De Lima, a “Human Resource / Vocational Rehabilitation consultant,” to offer an expert opinion on whether CSX “met Human Resources Industry Standards of Care regarding the implementation of FMLA.” CSX filed a motion to exclude the testimony of De Lima.

      Human Resources Expert Witness

      Beth B. De Lima is an expert in the HR aspects of employment regulation compliance, litigation, and vocational rehabilitation.

      She is nationally certified as a Senior Professional in Human Resources with a state-specific certification in California (SPHR-CA) by the Society for Human Resource Management (SHRM), a SHRM Senior Certified Professional (SHRM- SCP) and has been appointed to sit on the Employee Health, Safety, and Security Special Expertise Panel.

      Want to know more about the challenges Beth De Lima has faced? Get the full details with our Challenge Study report.

      Discussion by the Court

      De Lima opined that CSX’s directive to curb and discourage and interfere with an employee’s usage of FMLA led to mass layoffs of seasoned, tenured, decade long employees as a result of the organization’s failure to ensure they implement HR Industry Standards of Care for a federally protected employee leave benefit known as the FMLA.

      A. Opinions Unrelated to Whether CSX Had a Good Faith Belief that Brown Dishonestly Used FMLA Leave During the 2017-2018 Holidays

      To begin with, the Court noted that De Lima’s report included opinions on matters that were never at issue or are no longer at issue in this case, including CSX’s attendance policy and the American with Disabilities Act (ADA). CSX argued that these opinions should be excluded as the Court has “dismissed the attendance policy claims” and as “there is no ADA claim in this case.”  

      CSX also argued that De Lima’s testimony on the “implications of CSX’s policies regarding misuse of FMLA leave on weekends and to extend time off” should be excluded as they are irrelevant to the issue in this case — whether CSX had a good-faith belief that Brown dishonestly used FMLA leave over Christmas 2017 and New Year’s 2018.

      The Court agreed that De Lima’s opinions regarding the attendance policy and the ADA should be excluded.

      However, the Court did not agree that De Lima’s testimony about CSX’s policies regarding FMLA leave on weekends and to extend time off are irrelevant. Although Brown was terminated because of FMLA misuse over the 2017-2018 end-of-year holidays, CSX’s decision to charge Brown with FMLA misuse during that period was partially based on the fact that CSX previously had warned Brown that he was improperly using FMLA leave either before or after his rest days and on weekends. Under the circumstances, it cannot be said that De Lima’s testimony about the implications of CSX’s policies regarding FMLA use on weekends and to extend time off would not logically advance a material aspect of Brown’s case. Indeed, this evidence is probative of whether CSX had a good faith belief that Brown dishonestly used FMLA leave over the 2017-2018 holidays.

      B. Reliability

      CSX argued that De Lima’s opinions and testimony are not reliable because: (1) De Lima did not cite specific sources of the “HR Industry Standards” she purports to apply, (2) her testimony is not based on sufficient facts or data, (3) she made broad conclusions from unrepresentative samples, and (4) her report contains many errors and mischaracterized the record.

      De Lima did not cite specific sources of the “HR Industry Standards” she purports to apply

      Contrary to CSX’s contention, De Lima identified the standards set forth by Society for Human Resource Management (SHRM) as the source of the “HR Industry Standards” on which she relies.

      CSX further argued that to the extent De Lima “claimed that she relied on her experience to develop these supposed standards, her testimony and opinions are unreliable because she failed to explain ‘how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.’”

      De Lima explained in her report that she applied generally accepted HR standards as set forth by SHRM, “an organization founded in 1948” that “has over 285,000 members across more than 165 countries and more than 575 chapters in the United States.”

      De Lima’s testimony is not based on sufficient facts or data

      CSX noted that De Lima asserted there was a clear management directive to curb, discourage, and interfere with employees’ use of FMLA, but he did not cite anything specific.

      However, CSX did not claim that this portion of the report is an impermissible characterization of the evidence.

      CSX also argued that De Lima made other unsupported assertions that certain documents implicitly or explicitly embody nefarious principles, which they plainly do not. Although CSX may disagree with De Lima’s interpretation of the letter and the disciplinary policy, CSX has not demonstrated that it is unreliable.

      CSX further argued that De Lima’s testimony is unreliable as “there is simply too great an analytical gap between the data and the opinion proffered.” Although De Lima references CSX’s handling of discipline of two other employees, a review of De Lima’s report demonstrated that she did not base her opinions on CSX’s handling of the other cases.

      Therefore, CSX has not demonstrated that there “is too great an analytical gap between the data and the opinion proffered.”

      De Lima’s testimony is unreliable because her report is replete with errors and mischaracterizes the record

      CSX claimed that the report inaccurately stated that “CSX’s FMLA policy says that ‘if FMLA is utilized in a manner [CSX] deems to impact the staffing of the organization’ then the ‘approved use of FMLA leave will be documented as negative attendance’” under CSX’s attendance policy.

      CSX identified three other mischaracterizations in De Lima’s report. First, CSX stated that De Lima grossly mischaracterized the record by asserting that, “in 2016, CSX’s HR Department informed employees that ‘utilizing FMLA leave would be reported as misuse,’” when the letter actually stated that “using FMLA leave to avoid certain work assignments, to extend time off . . ., to be off on a holiday, the weekend, or to avoid working overtime is considered not only misuse, but fraudulent use of this federally required benefit.”

      Second, CSX contended that De Lima’s statement that “CSX made no effort to determine if the FMLA use was consistent with the already approved medical certificates for the impacted employees” and never requested documentation from employees “to clarify the validity of the FMLA usage” conflicts with the testimony of Jolanda Johnson, Manager, Benefits–FMLA, who testified that, before charging employees, she reviewed the medical reasons for leave to determine whether they clearly explained a need for leave over the holidays.

      Third, CSX challenged De Lima’s statement that “‘as an alternative to complying with the FMLA process for curing, CSX is simply ignoring the need to determine if the need for FMLA leave can be confirmed by curing the medical certificate and just moves on with the termination.’”

      None of the alleged factual discrepancies or mischaracterizations warrant excluding De Lima’s opinions and testimony. The Court found De Lima’s methodology sufficiently reliable. The alleged flaws in De Lima’s methodology raised by CSX would be addressed during cross-examination.

      C. Assistance to the Trier of Fact

      Next, CSX argued that De Lima’s opinions—off-base critiques of whether CSX engaged in a “curing process,” adequately trained its managers, and abided by “HR industry standards”—are not relevant to the question of whether Brown was subjected to unlawful retaliation.

      From De Lima’s testimony that CSX’s investigation fell below HR industry standards, a jury could infer that CSX did not have a good faith belief that Brown dishonestly took FMLA leave over the 2017-2018 end-of-year holidays and that CSX terminated Brown in retaliation for taking FMLA leave during that period. Accordingly, De Lima’s opinion on whether CSX complied with industry standards in investigating suspected FMLA misuse would be helpful to the jury.

      However, De Lima’s report consisted of many legal conclusions. De Lima frequently opined or implied that CSX’s policies and procedures regarding suspected FMLA misuse violate the FMLA. De Lima also offered her interpretation of an employer’s obligations under the FMLA. 

      The Court agreed with CSX that it would be improper to allow De Lima to testify about these issues at trial as they are legal conclusions. However, De Lima may still opine that CSX did not comply with industry standards in investigating suspected FMLA misuse as that is not a legal conclusion.

      CSX also challenged De Lima’s statement that the “focus in the Investigations seems to be the impact of the employee’s FMLA leave on the operations of the railroad’s workforce availability when employees are utilizing FMLA.” The Court is not persuaded.

      The challenged portions of De Lima’s report may factor into the jury’s determination on whether CSX had a good faith belief that Brown misused FMLA leave, but they do not merely tell the jury what result to reach. Accordingly, this is not a basis for excluding De Lima’s opinions and testimony.

      D. Rule 403

      In the alternative, CSX argued that De Lima’s testimony should be excluded pursuant to Rule 403 because it is unfairly prejudicial, confuses the issues, and would mislead the jury. CSX contended that De Lima’s report contains language that is “inflammatory” and “over-the-top.” CSX further argued that De Lima’s “confused report” is not relevant as it “misunderstands both the applicable regulation and the issues in this case.” However, as De Lima is expected to testify at trial, the Court held that her “opinions will be presented via her sworn testimony, and her report may be used to refresh her recollection or for impeachment, but the report itself is hearsay and is not admissible.”

      Held

      The Court granted in part and denied in part Defendant CSX Transportation, Inc.’s motion to exclude the testimony of Beth De Lima.

      Key Takeaway

      As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.

      Case Details:

      Case Caption: Brown V. CSX Transportation,, Inc.
      Docket Number: 8:24cv2777
      Court Name: United States District Court for the Middle District of Florida, Tampa Division
      Order Date: February 24, 2026
    5. Packaging Expert’s Testimony on Storage of Non-Vintage Wines Excluded

      Packaging Expert’s Testimony on Storage of Non-Vintage Wines Excluded

      Plaintiff April McElroy (“McElroy” or “Plaintiff”) was injured while attempting to open a bottle Mumm Napa Valley Brut Rose, a sparkling wine. The bottle broke causing lacerations to her left hand. McElroy has filed claims for her injuries against Defendants Pernod Ricard USA, Inc. (“Pernod”), Southern Glazer’s Wine and Spirits LLC, (“Glazer”) and Garfield Beach CVS LLC (“CVS”).

      McElroy’s negligence claim alleged that the Defendants failed to adhere to industry standards and best practices for storage and retention of the product to ensure the safety and integrity of the product. Consequently, she asserted that the Defendants violated their duty of care to consumers by improperly storing and distributing a product in a manner that proximately caused Plaintiff’s injury.

      Plaintiff offered the opinion of her expert Jim Goldman regarding how non-vintage sparkling wines should properly be stored and distributed at the wholesale and retail levels. Both Pernod and CVS moved to exclude the testimony of Goldman.

      Packaging Expert Witness

      Jim Goldman is a certified packaging expert with a consistent history of achievement developing packaging, supply chain, and production equipment for the Food and Beverage industry.

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

      Discussion by the Court

      To begin with, Goldman cited no authority, regulation, actual industry guidelines or any evidence of any manufacturers, wholesalers or retailers adopting or adhering to his proposed “industry standards.”

      He asserted for safety reasons the following steps are required in the distribution of non-vintage sparkling wines: 1) at all times the bottles are to be stored horizontally, 2) the bottles are to be stored in environments of controlled temperature and humidity, 3) the age of such products requires monitoring, and 4) that any non-vintage sparkling wine product has a maximum shelf life of 6 months after which it should be destroyed. Failure to adhere to this “standard” he opined is negligence and a cause of Plaintiff’s injury.

      However, there is no evidence whatsoever that his proposed guidelines are a standard by which the industry operates. A jury could not reasonably conclude that failure to meet one or more of Goldman’s self-created storage steps violated a duty of care.

      Also, Goldman did opine that his proffered “industry standard” for wholesale and retail storage of non-vintage wines is supported by a website directed to “storing champagne at home” for best quality.

      However, the Court held that this reference did not support his opinion that there is an industry wide standard for the shipment, storage and distribution of non-vintage sparkling wines that Defendants violated.

      Held

      The Court granted the the motions to exclude the testimony of Jim Goldman.

      Key Takeaway

      Goldman has not demonstrated a duty of care that any Defendant violated in the storage or retention of the wine at issue, and his testimony is wholly insufficient to create a material factual dispute.

      Case Details:

      Case Caption: McElroy V. Pernod Ricard USA, LLC
      Docket Number: 3:23cv2183
      Court Name: United States District Court, California Southern
      Order Date: January 29, 2026
    6. Insurance Expert’s Legal Opinions Excluded

      Insurance Expert’s Legal Opinions Excluded

      On August 27, 2020, Hurricane Laura made landfall in Southwest Louisiana. In the original complaint, The Pentecostal Church of DeQuincy (“TPCD”) alleged that it sustained damage from the hurricane and that Church Mutual underestimated the cost of repairs. The five (5) buildings considered “Covered Property” at issue in this litigation are identified as: (1) the Sanctuary, (2) the Activity Center, (3) the Sunday School/Fellowship Hall, (4) the Mobile Home, and (5) the Pole Barn. During the relevant time period, Church Mutual provided coverage for the Covered Property.

      The Church reported its claimed loss on September 1, 2020. TPCD has retained Louis G. Fey, Jr. as their expert on insurance claims handling, underwriting, and bad faith.

      Church Mutual filed a motion to preclude Fey from testifying as to any legal conclusion, including using terms or phrases such as “arbitrary,” “capricious,” “without probable cause,” “misrepresented”, “vexatious”, or “untimely” as these are legal terms of art.

      Insurance Expert Witness

      Louis G. Fey, Jr has over 43 years of practical experience handling complex property casualty claims and related litigation, directing, and overseeing insurance company defense counsel, managing, and directing claim, underwriting, and agency operations.

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

      Discussion by the Court

      To begin with, Church Mutual maintained that Fey’s report and opinions contained therein, misstate alleged facts, made irrelevant assumptions and conclusions, made legal conclusions about coverage of TPCD’s claims and Church Mutual’s alleged bad faith, and contains unsupported opinions concerning whether Church Mutual and TPCD complied with certain policy provisions.

      Church Mutual moved to preclude Fey from testifying as to any legal conclusion, including using terms or phrases such as “arbitrary,” “capricious,” “without probable cause,” “misrepresented”, “vexatious”, or “untimely” as these are legal terms of art.

      However, TPCD informed the Court that Fey will not be testifying or providing legal conclusions at the trial of the matter and reminds the Court that it has permitted Fey in past trials to testify as to “the facts with regard to Defendants’ handling of the claim, the general nature of the claims handling process, and the applicable industry standards in handling property damage claims.”

      Moreover, the Court in several of the cases citied herein has denied Daubert motions finding the Fey has a vast amount of experience and will be permitted to testify about insurance claims handling practices, insurance industry standards, customs, and practices applicable to handling insurance claims. However, this Court has never allowed Fey to provide legal opinions.

      Held

      As a result, the Court granted in part and denied in part Church Mutual’s motion in limine to exclude or limit the testimony of Louis G. Fey, Jr.

      Key Takeaway

      In conclusion, Fey was prohibited from testifying regarding any legal opinion or legal conclusion including testimony as to Church Mutual’s alleged “bad faith” or use terms or phrases that purport to draw a legal conclusion.

      Please refer to the blog previously published about this case:

      Construction Expert Allowed to Opine on Repair Estimates

      Case Details:

      Case Caption: Pentecostal Church Of Dequincy V. Church Mutual Insurance Co S.I.
      Docket Number: 2:22cv2782
      Court Name: United States District Court, Louisiana Western
      Order Date: February 04, 2026