Expert Witness Profiler

Tag: Legal Conclusions

  • Credit Reporting Expert Not Allowed to Opine on Intentions

    Credit Reporting Expert Not Allowed to Opine on Intentions

    In 2022, Plaintiff Rick Fox received a letter from his student loan provider stating that it extended condolences to Plaintiff’s family concerning Plaintiff’s death. Several weeks later, Plaintiff learned that his insurance benefits through the Department of Veterans Affairs (“VA”) had been terminated after the VA received a report that Plaintiff was deceased. On July 29, 2022, Plaintiff discovered that the Social Security Administration (“SSA”) had marked him as “deceased.” Plaintiff later discovered that both Equifax and Trans Union were reporting him as deceased on a Discover account listed on his consumer reports. After disputing this designation, Plaintiff alleged that he received a communication from Experian stating that the Discover account had been corrected, and, because credit bureaus share information, Plaintiff assumed that Trans Union would correct the mistake in its report as well.

    On August 15, 2022, Plaintiff applied for a car loan with five non-party entities, each of which obtained a copy of Plaintiff’s Experian credit report, and all five loan applications were ultimately denied. Plaintiff alleged, on information and belief, that all five applications were denied because he was still being reported as “deceased” on his consumer reports.

    Plaintiff proffered the opinion of Evan Hendricks in support of his claims brought in this case. Experian Information Solutions, Inc. filed a motion to exclude or limit the testimony of Hendricks.

    Credit Reporting Expert Witness

    Evan D. Hendricks has worked in the field of data privacy and credit reporting for over forty years. He was the Editor and Publisher of Privacy Times from 1981-2013.

    Hendricks has also given many presentations on the FCRA at conferences offering continuing legal education and other professional seminars. Hendricks has served as an FCRA expert witness since 1992, has testified as an expert in at least 25 trials in both federal and state court, and has testified before Congress and the Federal Trade Commission (“FTC”) on credit reporting practices. He wrote the book Credit Scores and Credit Reports: How the System Really Works, What You Can Do (“Credit Scores and Credit Reports”).

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

    Discussion by the Court

    In its motion, Defendant sought to exclude the testimony of Hendricks regarding: (1) Defendant’s policies and procedures surrounding its product, Fraud Shield; (2) Plaintiff’s damages; (3) Defendant’s knowledge, motivations, intentions, state of mind, and subjective beliefs; (4) prior cases, administrative actions, and consent orders; and (5) the reasonableness of Defendant’s policies and procedures.

    A. Fraud Shield

    Defendant contended that Hendricks’ opinion regarding its Fraud Shield product must be excluded because Hendricks is unqualified to opine on it.

    As a preliminary matter, Hendricks is not automatically unqualified to offer an opinion about the Fraud Shield product just because he lacked direct experience with it. Even more specifically, the Fraud Shield product is “within the reasonable confines of his subject area” because that product is part of the credit reporting process. Therefore, the Court concluded that Hendricks is qualified to offer an expert opinion about the product and how it functions.

    As to reliability, where, as here, the expert’s opinion is non-scientific in nature, “reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.”

    As noted above, in his report Hendricks stated that he formed his opinions in this case based on, among other things, the allegations of Plaintiff’s complaint and his own extensive experience in the credit reporting industry. These facts establish a sufficient basis as to the reliability of his opinion.

    B. Damages

    Defendant also argued that, as evidenced by his report and deposition testimony, Hendricks is not qualified to offer expert opinion or testimony on Plaintiff’s damages.

    As a preliminary matter, Hendricks’ failure to review certain materials again bears on the weight of his opinion, not its admissibility.

    In his expert report in this case, Hendricks has conceded that, other than the impact on Plaintiff’s creditworthiness, “most, if not all, of the testimony regarding Plaintiff’s specific, actual damages will come from fact witnesses.” Nonetheless, Hendricks’ report addressing damages largely consists of a list of eight categories of “typical negative impacts of unreasonable credit report inaccuracy” that he believes will aid the fact finder in assessing damages in this case, given his belief that Plaintiff experienced “many” of these categories of harm.

    Those eight categories are: (1) inaccurate descriptions of creditworthiness to third parties; (2) improper denial of credit; (3) loss of time, energy, and opportunities due in part to correcting the mistakes on one’s credit report; (4) wrongfully receiving debt collection calls; (5) being chilled from applying for credit; (6) sleeplessness and physical symptoms; (7) sense of helplessness and loss of control over personal data; and (8) emotional distress.

    The Court concluded that Hendricks is qualified to testify regarding the categories of damages that individuals often suffer from inaccurate credit reporting.

    C. Defendant’s State of Mind

    Defendant next argued that Hendricks has proffered opinions regarding Defendant’s knowledge, motivations, intentions, objective state of mind, and subjective beliefs which “plainly failed to satisfy Rule 702” of the Federal Rules of Evidence.

    Upon review of the expert report, the Court observed several instances in which Hendricks opines on Defendant’s state of mind. Courts routinely exclude expert testimony as to intent, motive, or state of mind as issues better left to a jury. Accordingly, the Court held that Hendricks will be prohibited from offering his opinions regarding Defendant’s state of mind, specifically, whether Defendant acted with disregard or knowingly.

    However, Hendricks will not be precluded from offering expert testimony regarding industry standards regarding accurate credit reporting even if that testimony could reasonably reflect Defendant’s subjective awareness about those standards when it developed and launched the Fraud Shield product.

    D. Prior Actions

    Defendant argued that Hendricks’ opinions should be excluded to the extent that he describes consent orders entered into by Defendant’s predecessor, prior cases, and administrative actions.

    Expert testimony as to prior actions, consent orders, and administrative actions “is unnecessary because no specialized knowledge or expertise is needed to understand the existence of those prior actions and to draw reasonable inferences from them.”

    The Court concluded that expert testimony of this nature will not be helpful to the jury in this case.

    E. Legal Conclusions

    Finally, Defendant argued that Hendricks offered several opinions that involved legal conclusions on ultimate issues in this case and that should be excluded as impermissible under Rule 702 of the Federal Rules of Evidence.

    An opinion is not objectionable just because it embraces an ultimate issue. Because he is an expert on credit reporting, the Court held that Hendricks may offer opinions regarding industry standards of credit reporting practices, how Defendant’s practices did or did not comport with those standards, and even what measures Defendant could have implemented to improve credit reporting accuracy.

    Moreover,  it did not appear to the Court that the Defendant sought to exclude any specific opinions regarding the reasonableness of Defendant’s policies

    Held

    The Court granted in part and denied in part the Defendant’s motion to exclude or limit the expert opinion of Evan Hendricks.

    Key Takeaway

    With respect to corporations, the opinions of expert witnesses on the intent, motives, or states of mind of corporations, regulatory agencies and others have no basis in any relevant body of knowledge or expertise.

    Case Details:

    Case Caption: Fox V. Experian Information Solutions, Inc.
    Docket Number: 1:22cv1197
    Court Name: United States District Court, California Eastern
    Order Date: March 31, 2026
  • Trademarks Expert Was Allowed to Opine on Protectable Rights

    Trademarks Expert Was Allowed to Opine on Protectable Rights

    In 2017, twin brothers Michael and David Postar split their interests in Affordable Storage, a self-storage business that they jointly owned and operated for many years. As part of the split, the brothers assigned certain registered trademarks associated with the business to a holding company in which they both own a 50% stake. Michael has exclusive rights to use those marks in Lubbock County, whereas David has exclusive rights to use them in Tom Green and Midland Counties.

    Years after the split, David, through his company Gargoyle Management, Inc., licensed a derivative of one of the marks to the brothers’ former employee, Gavin Hyland. Hyland and his wife operate their own self-storage business, Slaton Affordable Storage, Inc. Their two locations—one of which is in Lubbock County—are also named Affordable Storage.

    Michael sued the Hylands, David, and their companies for, among other things, trademark infringement, unfair competition, common-law misappropriation, and civil conspiracy. Generally, Michael alleges that the Defendants are violating federal and state law by using unauthorized derivatives of the Affordable Storage IP to compete against Michael in Lubbock County.

    Michael identified John M. Cone as his expert witness to testify about (1) whether Michael has protectable rights in various marks; (2) whether those rights have priority over the Hylands’ use of certain marks; and (3) whether the Hylands’ use of those marks is likely to cause confusion.

    In response, the Hyland Defendants filed a motion to exclude the expert testimony of Cone, an attorney who specializes in trademark law.

    Trademarks Expert Witness

    John M. Cone worked as an agent and attorney in intellectual property matters, first in England and subsequently in the United States, since before 1970, concentrating on trademark law.

    In England, he was a Chartered Patent Agent and a Member of the Institute of Trademark Agents. Cone was responsible for the worldwide trademark practice of the firm of patent and trademark agents of which he was a partner. In 1980, he moved to the United States, and in 1983 received a Doctor of Jurisprudence degree from Southern Methodist University, graduating cum laude. Cone had obtained a B.A.(Hons.) from the University of Oxford, England in 1968.

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

    Discussion by the Court

    1. According to the Defendants, Cone’s opinions in his expert report are impermissible legal conclusions

    At the outset, the Defendants did not challenge Cone’s qualifications as an expert. Nor did they challenge the reliability of the methodology underlying Cone’s expert report. Instead, they argued that the opinions in his report are impermissible legal conclusions that invade the province of the Court and merely tell the jury what result to reach.

    In their motion, the Defendants objected to 30 statements or opinions contained in Cone’s report. Each objection features the same stock argument: “This is an improper legal conclusion, seeking to tell the jury what law governs an issue and what the law means. It is not an opinion to help the factfinder understand the evidence or an issue in question.” Taken together, these objections effectively sought a blanket prohibition on Cone’s testimony.

    In response, Michael assured the Court that “Cone’s ‘legal conclusions’ will not be presented to the jury.” Moreover, he argued that there is no way to know at this point whether these purported “legal opinions” will “actually be offered at trial.” Besides, he said, nothing prevented experts from relying on legal authority in forming their opinions.

    In response to the Defendants’ 30 objections, Michael offered his own stock response: “This is not a legal conclusion because it does not omit the supporting facts; it is based on Cone’s analysis of the relevant sources as applied to his independent and objective review of the pleadings and other documents identified in his report.”

    ii. It is premature to exclude Cone’s expert testimony

    The Court denied the Defendants’ motion to exclude Cone’s expert testimony as premature.

    Cone was expected to testify that the Hylands’ use of certain marks is likely to cause confusion with marks owned by Postar IP. His opinions could be inadmissible to the extent they articulate a legal standard or tell the jury what result to reach.

    The Court required additional context to determine whether Cone’s opinions, if offered, would take the form of impermissible legal conclusions. The Defendants are effectively asking for a blanket ban on Cone’s testimony, yet his report offers potentially permissible opinions that do not necessarily constitute improper statements of law.

    Held

    The Court denied the Hyland Defendants’ motion to exclude the expert testimony of John M. Cone

    Key Takeaway

    Courts have found that the presence of impermissible legal conclusions in an expert’s report is not a sufficient basis to strike the entirety of his testimony, particularly where, as here, the report provides additional, potentially admissible opinions.

    Case Details:

    Case Caption: Postar V. Hyland
    Docket Number: 5:24cv19
    Court Name: United States District Court, Texas Northern
    Order Date: January 20, 2026
  • Emergency Medicine Expert Barred from Offering Legal Conclusions Regarding whether EMTALA was Violated

    Emergency Medicine Expert Barred from Offering Legal Conclusions Regarding whether EMTALA was Violated

    The present case stems from incidents occurring around 2:00 a.m. on December 18, 2020, when Angela Cleveland arrived at the Emergency Department (ED) entrance of Bienville Medical Center (BMC) with her 29-year-old son, Kedeldric Dontrez Brown. The Plaintiff has brought claims under the Emergency Medical Treatment and Labor Act (EMTALA), asserting that Brown’s death resulted from BMC’s failure or refusal to provide a necessary medical screening or treatment to assess whether he had an emergency medical condition.

    In response, the Defendant has designated Dr. Rebecca Hutchings, a physician specializing in emergency medicine, as an expert witness regarding the allegations in this case and has presented her expert report, which includes analysis of the EMTALA claims. Plaintiff Brianna Babers filed a motion contesting the admissibility of Hutchings’ expert opinion on whether BMC’s treatment of Brown on December 18, 2020, constituted a violation of EMTALA.

    Emergency Medicine Expert Witness

    Rebecca Hutchings is board certified in both emergency medicine and pediatrics. She has served as the director of medical education for the division of emergency medicine at Children’s Hospital New Orleans.

    Hutchings is also an Associate Adjunct Clinical Professor of Pediatrics at the Tulane University School of Medicine. She attended medical school at New York University followed by an Emergency Medicine residency at Louisiana State University, New Orleans. 

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

    Discussion by the Court

    Babers’ motion argued that Hutchings should not have been allowed to testify about legal conclusions, specifically whether BMC’s actions violated EMTALA. Babers maintained that determining an EMTALA violation was a legal question for the Court, not an expert. Therefore, Babers contended that any testimony from Hutchings interpreting EMTALA or offering legal conclusions should have been excluded under Federal Rule of Evidence 702 and the Daubert standard. In response, BMC agreed that experts could not offer legal conclusions but argued that Hutchings was qualified to provide expert testimony on emergency medicine, which was relevant to the EMTALA claims. BMC asserted that Hutchings’ extensive emergency medicine experience allowed her to testify on the medical aspects of the case, even without stating whether EMTALA was violated. BMC urged the Court to allow Hutchings to testify within her area of expertise.

    Because the parties agreed that experts could not offer legal conclusions, the Court granted Babers’ motion to the extent that it sought to exclude Hutchings’ testimony offering legal conclusions on EMTALA violations. Such testimony was inadmissible and would be excluded. However, Hutchings remained qualified to testify as an emergency medicine expert and could offer opinions within her expertise that did not constitute impermissible legal conclusions.

    Held

    The Court granted the Plaintiff’s Daubert motion/motion in limine to limit/exclude the testimony of Defendants’ expert witness, Dr. Rebecca Hutchings. Hutchings cannot provide legal opinions on EMTALA violations but may testify as an emergency medicine expert.

    Key Takeaway:

    The case centers on a lawsuit alleging Bienville Medical Center (BMC) violated EMTALA in its treatment of Kedeldric Dontrez Brown, who later died after presenting to the emergency department. The Plaintiff challenged the admissibility of the Defendant’s emergency medicine expert, Dr. Rebecca Hutchings, arguing she should not offer legal conclusions on whether BMC violated EMTALA. The Court agreed that experts cannot provide legal conclusions and thus excluded any of Hutchings’s testimony that offered such conclusions. However, Hutchings remained qualified to testify as an emergency medicine expert and could offer opinions within her medical expertise, as long as they did not constitute impermissible legal conclusions

    Case Details:

    Case Caption: Babers V. Bienville Medical Center Inc Et Al
    Docket Number: 5:21cv4338
    Court Name: United States District Court, Louisiana Western
    Order Date: March 25, 2025
  • Civil Rights Expert Witness’ Opinions About Defendant’s Conduct Limited

    Civil Rights Expert Witness’ Opinions About Defendant’s Conduct Limited

    Plaintiff, Erika Pogorzelska filed this action in August 2019. She alleged in her remaining claims that VanderCook, a school she attended, violated Title IX of the Education Amendments of 1972 (“Title IX”) and the Illinois Civil Rights Remedies Restoration Act by its deliberate indifference to her allegations that she was sexually assaulted and battered by a classmate, former Defendant Eric Ballenger, and subsequently harassed.

    Defendant retained Saundra Schuster to testify as an expert on industry standards for Title IX compliance, investigations, and responses.

    Plaintiff sought an order barring Schuster from offering the following five opinions that are contained in her Amended Confidential Expert Report: (a) Schuster “cannot see any basis in the record to conclude that [Defendant’s] actions were clearly unreasonable or exposed [Plaintiff] to an ongoing hostile environment on the basis of sex.” (b) “Rather than being discriminated against, it appears from the record that [Plaintiff] was exceptionally well-accommodated and cared for by [Defendant] in ways that met or exceeded industry standards for supportive measures.” (c) Defendant “responded promptly and equitably to allegations of sexual assault made by” Plaintiff. (d) Defendant “responded promptly and diligently to [Plaintiff’s] complaints of violations of the No Contact Directive.” (e) Defendant’s “decision on the evidence was reasonable.”

    Plaintiff maintained that Schuster’s opinions about Defendant’s conduct should be barred because they consisted of legal conclusions equivalent to testimony that Defendant acted in compliance with Title IX and they impermissibly tell the jury how to decide the issues.

    Civil Rights Expert Witness

    Saunie Schuster is a recognized expert in preventive and civil rights law for education, notably in the fields of harassment, discrimination and sexual misconduct and violence, ADA and disability issues and the First Amendment, Schuster has extensive experience and expertise in, and routinely advises clients on, the First Amendment and campus access issues; risk management and liability; behavior intervention and threat assessment; student discipline and campus conduct; intellectual property and employment issues. 

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

    Discussion by the Court

    It should be noted that Plaintiff previously moved to exclude Schuster’s opinions in their entirety under Federal Rule of Evidence 702 and Daubert
    v. Merrell Dow Pharmaceuticals, Inc    ., 509 U.S. 579 (1993)    .

    Although Plaintiff previously objected to most of the opinions she now seeks to exclude, she challenged Schuster’s testimony only generally as consisting of improper legal conclusions and did not raise that ground in relation to the specific statements now at issue.

    The Court excluded Schuster’s testimony with respect to a certain section of her amended report but declined to preclude her from testifying entirely.

    The parties remained free to raise appropriate objections to specific aspects of expert testimony and proceeded to address in turn the five statements identified by Plaintiff.

    The Court held that Schuster’s opinions that there is no basis to conclude that Defendant acted unreasonably or exposed Plaintiff to a hostile environment are obvious conclusions of law inappropriate for expert testimony. It also permitted Schuster to testify that Plaintiff was “exceptionally well-accommodated and cared for,” as long as that opinion is tied to industry standards. But the first portion of the statement (“rather than being discriminated against”) is a legal conclusion that Plaintiff was not discriminated against and is therefore inadmissible.

    The Court held that Plaintiff’s motions in limine are denied as to testimony that Defendant responded “promptly” and “diligently.” It, however, added that Schuster, may not testify that Defendant responded “equitably.”

    When Schuster expressed two points: one, that Defendant’s decision was “reasonable,” and two, that it comported with industry standards, the Court permitted Schuster to testify as to the latter point, but not the former.

    Held

    The Court granted in part and denied in part the Plaintiff’s motion in limine to bar the testimony of Defendant’s expert, Saundra Schuster.

    Key Takeaway:

    The Court allowed Schuster to provide testimony as to whether Defendant’s responses and investigation comported with industry standards and practice on Title IX responses and investigations but not as to whether Defendant violated Title IX or whether Plaintiff has proven the elements of a Title IX claim, including whether Defendant acted unreasonably.

    Case Details:

    Case Caption: Pogorzelska V. Vandercook College Of Music
    Docket Number: 1:19cv5683
    Court: United States District Court, Illinois Northern
    Order Date: June 26, 2024
  • Safety Expert Witness’ Analysis of the Alleged Discrimination deemed Inadmissible

    Safety Expert Witness’ Analysis of the Alleged Discrimination deemed Inadmissible

    A district judge in California barred a safety expert witness from testifying about lack of intentional discrimination despite being qualified to offer an opinion on the subject matter.

    Plaintiff Melvin Patterson is deaf. He brought this action under Title III of the Americans with Disabilities Act and the California Unruh Civil Rights Act against Defendants Six Flags Theme Parks, Inc., Six Flags Entertainment Corp., and Park Management Corp. (collectively, Defendants). 

    Plaintiff alleged Defendants discriminated against him by refusing to provide an American Sign Language (ASL) interpreter for planned visits to Defendants’ amusement park, Six Flags Discovery Kingdom in Vallejo, California. 

    In anticipation of the trial, Plaintiff moved in limine to exclude the testimony of Defendants’ retained expert, Robert F. Minnick, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. (Daubert I), 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). 

    Plaintiff contended that Minnick is not qualified, his anticipated testimony is unreliable and unhelpful, his testimony contains pure conclusions of law, and he improperly offered opinions as to other witnesses’ state of mind.

    Safety Expert Witness

    Robert F. Minnick is a safety, compliance, and engineering technical executive with broad-based experience in designing, implementing, and sustaining improvements for resort hotels, theme parks, and entertainment facilities worldwide.

    Specifically, he is an expert in ADA compliance and provides consulting services to theme parks to improve the customer experience for persons with disabilities and barrier removal. He previously worked as a technical director of safety and accessibility at Walt Disney Parks & Resorts in Florida, among other positions.  He previously worked as a technical director of safety and accessibility at Walt Disney Parks & Resorts in Florida, among other positions.

    Don’t let the Patterson V. Six Flags Theme Parks Inc. be your only lens into Robert Minnick – order his Profile for a 360-degree view of his professional record.

    Discussion by the Court

    Minnick describes the following opinions in his report, which the Court has numbered for ease of reference:

    1. “After examining the documents listed [in my report], I do not find any evidence of discrimination by the Defendant. I saw evidence of one Six Flags Guest Relations employee getting confused about their service offerings for persons with disabilities, but no intentional discrimination.”
    2. “Requests for ASL interpreters are very rare at Six Flags Discovery Kingdom. . . . Since requests are so rare, it’s not surprising to this expert that a seasonal employee such as Mercedes Wilson in the Six Flags Operations Office would be confused about the range of service offerings for the deaf or hard of hearing.
    3. “Melvin Patterson appears to be angling for a fight with Six Flags Discovery Kingdom after his first few frustrating phone calls and their refusal to refund him his season pass expenditure.”
    4. “Park operations require [seven to fourteen days’] lead-time to understand and process the service request, contact a sign language contractor, schedule the ASL interpreter and respond to the Guest with an agreed-to meeting place.” 
    5. “Same day service for a rare request is not a reasonable accommodation.”

     Minnick’s testimony goes to the ultimate issues of law

    As a preliminary matter, Defendants have shown that Minnick is at least minimally ‘qualified as an expert’ under Rule 702 based on his experience and knowledge regarding ADA compliance and accessibility in theme parks and other businesses from 2002 until today, despite his lack of ‘granular’ experience.

    To begin, opinions (1) and (5)—that there is no “evidence of discrimination by the Defendant” and that same-day interpretive services are not reasonable—are “inappropriate subjects for expert testimony.”

    Minnick offered legal conclusions—that there was no discrimination and offering same-day ASL interpretive service is not reasonable. The Court held that his testimony inappropriately goes to the ultimate issues of law and is therefore inadmissible. 

    Nor would opinions (1) and (5) “help the trier of fact to understand the evidence or to determine a fact in issue.” As described in his report, opinions (1) and (5) are based on Minnick’s review of discovery production and evidence in this case, including depositions, responses to interrogatories, and pleadings.

    He does not explain how he used his expertise to evaluate that evidence. For that reason, it is unclear what helpful testimony Minnick could provide that is outside “the common knowledge of the average layman.”

    Minnick’s opinions are properly for the trier of fact

    Next, opinions (2) and (3) are about another person’s state of mind. Questions of state of mind are properly for the trier of fact.

    The Court held that Minnick therefore cannot testify at trial “that a seasonal employee such as Mercedes Wilson in the Six Flags Operations Office would be confused about the range of service offerings for the deaf or hard of hearing.”

    Nor may Minnick testify at trial that Plaintiff “appears to be angling for a fight with Six Flags Discovery Kingdom after his first few frustrating phone calls and their refusal to refund him his season pass expenditure.”

    Minnick provided no analysis on how rare the requests for ASL interpreters are—for example, on average, how many requests do Defendants receive per week, month, or even year? Nor did he explain or know how much time it would take to find an ASL interpreter in the area, such that same day requests or requests made less than seven days in advance cannot be reasonably honored. In conclusion, Opinion (2) also lacked any analytical foundation.

    Minnick did not explain the basis of his opinion or what method he used to reach it

    What remains, then is opinion (4), i.e., that “[p]ark operations require [seven to fourteen days’] lead-time to understand and process the service request, contact a sign language contractor, schedule the ASL interpreter and respond to the Guest with an agreed-to meeting place.” Minnick did not explain the basis of this opinion or what method he used to reach it. He did not describe any research. Nor did he know how many days it took for an average or typical amusement park, let alone these particular Defendants, to obtain an in-person sign language interpreter or even an interpreter via the use of Video Remote Interpreting services. Nor did he testify about the industry standards for the amount of time needed to honor requests for ASL interpreters.

    Instead, he explained that Disney, his former employer, “asks for two-week notice” because that particular theme park attracts a lot of international guests, and it would take time to find appropriate foreign language sign language interpreters—for example, a British sign language interpreter or a Chinese sign language interpreter.

    He also testified vaguely at his deposition that the relevant standard “depends,” and he said theme parks “need to establish their policy . . . based on availability of services around the park.” Although he states different theme parks have different policies “based on their experience,” he does not appear to know what Defendants’ experience is and why Defendants’ policies are reasonable, if they are, in light of those experiences.

    Held

    The Court granted Plaintiff’s motion in limine to exclude Robert F. Minnick’s expert testimony.

    Key Takeaways:

    • An expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law. Expert testimony that consists of legal conclusions is unhelpful and inadmissible. Robert Minnick’s testimony-that there was no discrimination and offering same-day ASL interpretive service is not reasonable-inappropriately goes to the ultimate issues of law and is therefore inadmissible. 
    • Minnick’s opinions about there being no discrimination would not help the trier of fact to understand the evidence or to determine a fact in issue. His opinions are based on his review of discovery production and evidence in this case, including depositions, responses to interrogatories, and pleadings. He does not explain how he used his expertise to evaluate that evidence.
    • Minnick’s opinion that requests for ASL interpreters are very rare at Six Flags Discovery Kingdom lacked analytical foundation. He provided no analysis on how rare the requests for ASL interpreters are—for example, on average, how many requests do Defendants receive per week, month, or even year? Nor did he explain or know how much time it would take to find an ASL interpreter in the area, such that same day requests or requests made less than seven days in advance cannot be reasonably honored.

    Case Details:

    Case Caption: Patterson V. Six Flags Theme Parks Inc., Et Al
    Docket Number: 2:21cv2398
    Court Name: United States District Court, California Eastern
    Order Date: May 09, 2024
  • Insurance Expert Witness Barred from Testifying as to which Party is at Fault

    Insurance Expert Witness Barred from Testifying as to which Party is at Fault

    This case involves an accumulator universal life insurance policy purchased by Dr. Herbert Wiegand in 2000 when he was 82 years old. The insured was his second wife, Jean Wiegand (nee Walters), who was 80 years old at the time. The policy had a face value (death benefit) of $1.4 million and a maturity date of June 12, 2020. The original owner of the policy was an LLC Dr. Wiegand set up for the benefit of his children from his prior marriage. Dr. Wiegand paid an initial premium which guaranteed coverage for five years. The policy carried a cash value, which fluctuated as a function of interest the policy earned, less the ongoing cost to maintain the insurance policy.

    Breach of Contract Claim

    Dr. Wiegand died in 2002, approximately two years after purchasing the policy. After Dr. Wiegand’s death, the Policy’s ownership transferred to his revocable trust which he set up for the benefit of all of his children. Plaintiffs are two of Dr. Wiegand’s adult children who serve as trustees of the trust.

    Dr. Wiegand’s initial premium payment kept the policy in force for 16 years after purchase until 2016 with no subsequent premiums being paid. Ms. Weigand, however, lived past her 100th birthday until November of 2020, surviving the policy’s maturity date by more than four months. Plaintiffs had no knowledge of Ms. Wiegand’s health condition or status from which they could have assessed whether to maintain or surrender the Policy. 

    They raised a breach of contract claim based on New York Life’s alleged failure to send them annual statements at their attorney’s address instead of the original address listed on the policy—the residence of Dr. Wiegand and Ms. Wiegand, the insured. Plaintiffs claimed their damages were equal to the cash value of the policy as it existed in 2012—four years prior to the policy lapse. They asserted that they would have exercised their option to surrender the policy for a cash disbursement had New York Life sent them annual statements at their attorney’s address.

    Plaintiffs moved to exclude Defendant’s expert, Charles W. Bowden from testifying under Rule 702 and Daubert standards because his report allegedly lacked relevant expert opinions bearing on the ultimate factual issue in this case.

    Insurance Expert Witness

    Charles W. Bowden has more than 40 years of experience as an independent life, health and disability insurance agent/ broker. He holds two insurance industry recognized certifications, Chartered Life Underwriter (CLU) and his Chartered Financial Consultant (ChFC). His specialties and experience include business continuity planning, using all forms of business life and disability insurance. He has extensive experience in Whole Life, Universal Life and Variable Life in the Business Markets selling COLI, Business Continuity Planning. Group Term Life Insurance and Group Disability and all types of group Health care coverage.

    In addition to his practice in estate and business continuity planning, Charlie is a Qualified Continuing Education Instructor, and assists other licensed insurance professionals to keep current with the ever-changing structure of the insurance and investment marketplace using financial and estate planning strategies. Charlie uses his extensive experience to provide expert testimony in legal matters brought to courts around the country and he is a frequent radio guest. Charlie is a member of the South Jersey Chapter of The Society for Financial Service Professionals, as well as a past member of their Board of Directors.

    Discussion by the Court

    Bowden offered opinions on the following three topics:

    1. Why was the life insurance policy able to continue from 2000, the effective date of the policy without continuing premium payments?
    2. Why was the policy initially held in the Family LLC and subsequently moved to the revocable trust?
    3. What are the administrative issues that allowed the policy to lapse prior to the death of the insured?

    Plaintiffs argued that Bowden’s conclusions were merely recaps of factual points discussed in his report, his opinions were lay opinions, and it set out an opinion that was irrelevant in a breach of contract case. Further, Plaintiffs argued that Bowden’s opinions were in reality legal argument, which was not appropriate. Defendants argued that Bowden’s opinions were proper as industry standards could provide assistance to the fact finders.

    Industry practices or standards may be relevant in insurance cases, and the Eighth Circuit has upheld the admission of opinion testimony addressing whether an insurance company handled a claim properly under industry standards.

    The Court allowed Bowden to explain industry standards regarding policy updates and the like but barred him from giving his legal opinion as to which party was at fault.

    Held

    The Court granted in part and denied in part Plaintiff’s motion to exclude the testimony of Defendant’s expert, Charles W. Bowden.

    Key Takeaway:

    1. Legal Conclusion: Considering an expert “may not intrude on the Court’s role to instruct the jury as to the law and testify to a legal conclusion,” the Court did not allow Bowden to give his legal opinion as to which party was “at fault.”
    2. Relevance of Industry practices or standards in insurance cases: The Eighth Circuit has upheld the admission of opinion testimony addressing whether an insurance company handled a claim properly under industry standards.

    Case Details:

    Case Caption: Wiegand Et Al V. New York Life Insurance & Annuity Corporation Et Al
    Docket Number: 4:22cv188
    Court: United States District Court, Missouri Eastern
    Order Date: March 26, 2024
  • Insurance Expert Witness’ Testimony on Legal Parameters for Bad Faith Excluded

    Insurance Expert Witness’ Testimony on Legal Parameters for Bad Faith Excluded

    This case arises out of a dispute over three separate, consecutive, nonrenewable Short Term Medical (“STM”) insurance plans underwritten by Defendant American Financial Security Life Insurance Company (“AFSLIC” or “American”). The type of STM insurance (also referred to as “short term limited duration insurance” or “STLDI”) at issue here is relatively new, first being authorized by changes to federal regulations in 2018 that expanded access to STM plans.

    The insurance contracts at issue consist of a Group Short Term Medical Insurance Policy and three Certificates of Insurance issued thereunder to Susan Hanlon as insured and Nile Hanlon as an eligible covered dependent.

    Plaintiffs asserted AFSLIC acted in bad faith because its third-party administrator: (a) closed several medical providers’ claims related to the treatment of Hanlon’s diverticulitis due to the providers’ failure to respond to multiple written requests for medical records; and (b) denied other providers’ claims based upon the Certificates’ preexisting condition exclusion. To support their position, Plaintiffs retained Susie Sullivan as a purported “bad faith” insurance claims handling expert.

    Defendant filed a motion to exclude the testimony of Plaintiffs’ proposed expert, Susie Sullivan citing the Rule 702 standards.

    Insurance Expert Witness

    Susie Sullivan worked for the Oklahoma Department of Insurance from 1965 to 1995. From 1982 until 1995, she served as Assistant Insurance Commissioner in charge of Claims and Consumer Protection. Her duties consisted of reviewing disputed claims and evaluating claims handling practices of insurance companies licensed to transact business in the State of Oklahoma, scheduling market conduct examinations on insurance companies when she saw a pattern and practice of wrongful claims handling and conducting claims hearings to resolve coverage and liability issues through alternative dispute resolution and negotiated compliance problems.

    Discussion by the Court

    First, the Defendant challenged Sullivan’s qualifications. It contended that her qualifications did not encompass short-term medical insurance, short-term medical insurance claims handling, or industry standards relating to the same.

    Defendant also argued that her “proffered opinion testimony was inadmissible because it was replete with thinly veiled legal conclusions and improper attempts to usurp the role of the Court.”

    Qualifications

    The Court held that this matter undoubtedly involved insurance claims submitted under a short-term medical insurance plan. Despite Sullivan lacking deep expertise on short-term medical insurance, it was not clear why such expertise was necessary here.

    Defendant did not purport that investigation and claims handling for short-term insurance differed materially from investigation and claims handling in other insurance contexts. Nor did it allege that distinctive industry standards applied for investigating and handling claims under a short-term insurance plan.

    Legal Conclusions

    It is clear that while an expert may opine on the ultimate issue of fact, she may not give testimony stating ultimate legal conclusions based on those facts.

    With these principles in mind, the Court excluded: (1) expert testimony on the legal parameters for bad faith under Oklahoma law, and (2) expert testimony artfully characterizing Defendant’s conduct with terms of legal significance. More specifically, Sullivan was not permitted “to opine regarding the duties an insurer owes to an insured, what conduct is reasonable by an insurer, whether Defendant’s actions were taken in good faith or in bad faith, whether Defendant’s investigation of Plaintiffs’ insurance claims was adequately thorough, whether Defendant’s conduct was reasonable, what courts have held regarding the duty of good faith and fair dealing, or what she otherwise believes the law to be.”

    The Court barred Sullivan from discussing the  Oklahoma Unfair Claims Settlement Practices Act (OUCSPA) or whether Defendant violated it. 

    The Court held that the OUCSPA did not establish standards of care or standards of conduct for measuring whether an insurer violated its duty of good faith and fair dealing. Nor did it function as an appropriate guide for a jury to determine bad faith.

    The Court, however, permitted Sullivan to testify as to “the custom and practice of the industry in investigating and handling of claims” and “the considerations involved in evaluating an insured’s claim, based on industry custom and practice and/or her own experience.”

    Held

    The Court granted in part and denied in part the Defendant’s Motion to Exclude the Testimony of the Plaintiffs’ Proposed Expert Susie Sullivan.

    The Court administratively terminated this action on March 18, 2024 without prejudice to the rights of the parties.

    Key Takeaways:

    1. Qualifications: Despite Insurance Expert Witness Sullivan’s lack of deep expertise on short-term medical insurance, Defendant did not purport that investigation and claims handling for short-term insurance differed materially from investigation and claims handling in other insurance contexts.
    2. Legal Conclusions: It is clear that while an expert may opine on the ultimate issue of fact, they may not give testimony stating ultimate legal conclusions based on those facts.

    Case Details:

    Case Caption: Hanlon Et Al V. American Financial Security Life Insurance Company Et Al
    Docket Number: 5:22cv798
    Court: United States District Court, Oklahoma Western
    Order Date: February 15, 2024
  • Testimony of Vocational Rehabilitation Expert Witness Held to Emphasize on Relevant Factors

    Testimony of Vocational Rehabilitation Expert Witness Held to Emphasize on Relevant Factors

    Defendant Amazon.com Services, Inc. (“Amazon.com”) initially hired Marcellus McMillian as a seasonal fulfillment associate and then promoted him to fulfillment associate in the make on demand department. Defendants employed him for more than a year, starting on January 11, 2017. McMillian’s back was injured in an unrelated car accident on or around August 3, 2017, and he went on medical leave. McMillian accused the Defendants of discriminating against him because of his disability and requests for accommodation.

    Defendants’ vocational rehabilitation expert, William B. Skilling, testified that he formed an opinion that McMillian was “highly employable” because McMillian’s skills were allegedly “transferable to many different occupations.” Skilling testified that he created a chart in his report where he identified “appropriate” positions for McMillian as a part of his transferable skills analysis. He then went on to testify that he formed an opinion that the occupations listed on the chart in his report are “substantially similar” to McMillian’s position with the Defendants. He testified that he made assumptions about McMillian’s rate of pay based on his job description, and was unable to testify as to how many hours McMillian worked, or what, if any benefits McMillian received. Skilling’s report also makes a reference to other positions being “substantially similar” to McMillian’s position with the Defendants.

    Plaintiff requested the Court to preclude reference to and testimony of any legal conclusions from Skilling, including references in his report, and his testimony that other positions were “substantially similar” to McMillian’s position during his employment with the Defendants.

    Vocational Rehabilitation Expert Witness

    William B. Skilling has worked in the field of rehabilitation for more than 45 years. Since 1973, he has completed more than 5,000 assessments and has testified as an expert in his field on nearly 500 occasions in state and federal courts.

    Between 1982 and 1992, Skilling was under contract as a Vocational Expert by the Social Security Administration Office of Disability Adjudication and Review, while at the same time providing vocational rehabilitation services to injured workers through private contracts in Washington, Oregon, California, and Alaska.

    Discussion by the Court

    Plaintiff argued that Skilling was not qualified to opine on other employment opportunities because he made assumptions about McMillian’s rate of pay based on his job description. He was, hence, unable to testify as to how many hours McMillian worked, or what, if any benefits McMillian received. He also did not know how long McMillian’s commute was and did not interview McMillian.

    Plaintiff also argued that pursuant to FRE 702(1) Skilling’s testimony, and conclusory, unfounded opinion that other positions identified in his report were substantially similar to McMillian’s position, would not help the trier of fact understand the evidence or decide an issue of fact.

    There are certain factors that a jury can consider when determining whether other positions were “substantially similar”, including salary, benefits, hours of work per day, hours of work per year, locality, and availability of a merit-based system. One of the agreed upon jury instruction regarding Defendants’ affirmative defenses pertaining to migration, identified that the jury must determine whether “employment substantially similar to Marcellus McMillian’s former job was available to him.” While evidence of other jobs can reasonably be admitted as evidence, the question of whether the jobs are substantially similar is one for a jury to decide.

    Defendants argued that Skilling’s analysis focused more heavily on some of the other relevant factors, such as locality and the required skill, background, or experience. The Court found that the Plaintiff’s counsel forced the “substantially similar” usage on the expert witness in order to bring this Motion. To the extent Plaintiff objected to Skilling’s conclusion or believed his conclusion were unsupported, Plaintiff was free to elicit such weaknesses during cross-examination. 

    Held

    The Court denied Plaintiff’s motion to exclude reference to and testimony of any legal conclusions from Defendant’s expert William Skilling.

    Key Takeaway:

    The test under Daubert  is not the correctness of the vocational rehabilitation expert witness’s conclusions but the soundness of his methodology. Attacks to the factual underpinnings of an expert’s opinions bear on the weight of the opinion, not its admissibility.

    Case Details:

    Case Caption: McMillian v. Golden State FC LLC
    Docket Number: 2:19cv2121
    Court: United States District Court, California Central
    Order Date: February 6, 2024

  • Environmental Expert Witness barred from testifying about the Applicability of Asbestos National Emissions Standard for Hazardous Air Pollutants

    Environmental Expert Witness barred from testifying about the Applicability of Asbestos National Emissions Standard for Hazardous Air Pollutants

    This case involved two buildings in downtown Burley, Idaho, located at 1222 and 1226 Overland Avenue which burned in late January 2018 and were subsequently demolished in mid-February 2018. A small portion of the debris from the buildings was hauled away to a local gravel pit which also operated as a landfill. Rising concerns about the possible presence of asbestos in the building debris caused the work to cease. Testing at the demolition site after the buildings were demolished was why the presence of asbestos in some of the demolition debris was allegedly confirmed during a clean up by an EPA contractor some six months later. Therefore, the Government asserted that asbestos was present in the buildings before they were demolished. The charges in this case arose from the demolition and clean up of the buildings, which began on February 17, 2018. The fire that damaged the buildings occurred during the early morning hours of January 29, 2018. The cause of the fire was investigated by state and federal law enforcement. Arson was suspected because of circumstances surrounding the fires, including the discovery of an undetonated pipe bomb at the front door of a restaurant located directly across the street from the burned buildings. The presence of this pipe bomb necessitated the involvement of a bomb squad to render it safe. Various individuals were interviewed during the law enforcement investigation of the cause of the fire including Pilling and his former business partner, Brian Tibbets. Pilling and Tibbets were owners of the restaurant where the pipe bomb was found and both were thought to be owners of the Overland buildings that burned. For his part, Pilling was out of the country on a ski trip at the time of the fire. No one was ever criminally charged with causing the fire or for involvement with the pipe bomb found across the street. Pilling was charged by indictment on December 14, 2022, with seven criminal counts related to the demolition and cleanup of the buildings. The Clean Air Act (CAA) provided for criminal penalties if a person knowingly violated the National Emissions Standard for Hazardous Air Pollutants (“NESHAP”) for asbestos that governed the removal of asbestos as the result of demolition and renovation activities. Pilling was charged with failure to thoroughly inspect 1222 and 1226 Overland for asbestos before the demolition commenced (Count One), failure to notify the EPA ten days prior to the commencement of demolition activity (Count Two), failure to remove asbestos prior to demolition (Count Three), failure to have an on-site representative trained in compliance with asbestos work practices (Count Four), failure to adequately wet the asbestos before it was disposed of (Count Five), discharge of visible emissions to the outside air from asbestos-containing waste material (Count Six), and failure to deposit asbestos and components covered with asbestos as soon as practical in a disposal site authorized to accept asbestos (Count Seven).

    The parties have filed various motions in limine, all of which have been addressed by the Court.

    The Defendant filed a motion in limine seeking to exclude six categories of evidence of which the Government opposed the motion as to four of the following categories: (1) Evidence that arson caused the fire at the buildings located at 1222 and 1226 Overland Avenue in Burley, Idaho, in late January 2018, that the buildings caught fire under suspicious circumstances, that a pipe bomb was discovered, or any inference that Pilling was responsible for any of the foregoing; (2) Evidence of any other crime, wrong, or act” of Pilling, if any, pursuant to F.R.E. 404(b); (3) Evidence that asbestos, which was allegedly found in very limited amounts in the Overland buildings debris, is “deadly,” that it may bring on serious diseases, or that “no level of exposure is considered safe;”  and (4) Unsubstantiated belief or opinion held in the local community that Pilling was an “owner” of the buildings or demolition company.

    The Government also filed two motions in limine in response.
    The first motion sought to limit the scope of the Defendant’s cross-examination of Richard Martinez, a Government witness, while the second motion requested a ruling on the admission of certain expert testimony by John Pavitt.

    Chemistry Expert Witness

    Richard Martinez is a Chemist at the United States Environmental Protection Agency’s (EPA) National Enforcement Investigations Center (NEIC), where his areas of work included inorganic and organic chemical analyses and asbestos identification. Martinez has held this position since 2000. He previously held the position of Physical Science Technician at NEIC from 1994 to 2000. Martinez received his Bachelor of Sciences Degree in Biology from the University of Southern Colorado in 1990.

    Environmental Expert Witness

    John Pavitt is a Clean Air Act Inspector and Case Officer with the United States Environmental Protection Agency (“EPA”) and has held that position since 1993. He earned a Bachelor of Science degree in Environmental Studies from Western Washington University in 1986. He has training with respect to the collection of samples for asbestos analysis, and intimate knowledge of the regulations surrounding asbestos treatment and disposal.

    Discussion by the Court

    Defendant sought to prevent the Government from presenting evidence or suggesting that arson caused a fire in Burley, Idaho, in January 2018; the buildings caught fire under suspicious circumstances; a pipe bomb was discovered nearby; or that Defendant was responsible for it. Defendant argued that it was irrelevant and substantially outweighed by the considerations set forth in Rule 403. The Government responded by contending that it needed to provide a coherent and comprehensible story regarding the commission of the crime as well as context for its other evidence such as statements made by the Defendant during an interview with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) investigators, but it never intended to present evidence of alleged arson as other-act evidence under Rule 404(b). The Court ruled that the Government could not suggest or offer evidence of arson, discovery of a pipe bomb nearby, suspicious circumstances surrounding the fire, or the Defendant’s involvement in it. However, the Government was permitted to briefly explain the context of the interview with ATF agents without implying any connection to the fire or suspicious circumstances.

    The Defendant also sought to prevent the Government from offering evidence that asbestos is “deadly,” that it may cause serious diseases, and that “no level of exposure is considered safe.” The Government responded that the dangerousness of asbestos was relevant to the Defendant’s motive for not undertaking proper abatement and demolition measures. The Court held that the dangers of asbestos inhalation were not relevant to any element of the charged offenses. And, to the extent, that those dangers may have been indirectly relevant to the Defendant’s alleged motive, that relevance was substantially outweighed by the undue delay and unfair prejudice that would have accompanied the presentation of such evidence.

    The Defendant sought to exclude evidence of any “unsubstantiated belief or opinion” held in the “local community” about his ownership of the buildings or demolition company. He argued that such “speculative” and “uninformed” testimony would be irrelevant and unfairly prejudicial. In response, the Government explained that it would not offer any “unsubstantiated” beliefs or opinions of community members, but it did intend to introduce an email from the Defendant’s father to the Defendant which ostensibly revealed the father’s belief that the Defendant owned the buildings.

    At first blush, evidence indicating that the Defendant’s father believed the Defendant to be an owner of the buildings did not appear relevant to whether he actually was an owner. However, the Court observed that both parties indicated that the Defendant’s alleged ownership of the buildings and demolition company would be a key issue at trial. And, to the extent that the direct evidence bearing on ownership was inconclusive, evidence of the father’s belief may have had probative value as circumstantial evidence. Moreover, whatever prejudice that evidence may have had against the Defendant would not have been unfair considering the defense counsel would have the opportunity to challenge the weight of the evidence.

    Accordingly, the Court agreed to allow the Government to offer evidence indicating that the Defendant’s father believed the Defendant to be the owner of the buildings.

    As for the motions in limine filed by the Government, the Government sought to prevent the Defendant from cross-examining Richard Martinez, who analyzed samples for asbestos content in this case.

    In 2020, Martinez was suspended from work for five days in connection with failures in his duties as a Waste Control Officer at the NEIC. Following a related investigation, the EPA Office of Inspector General (OIG) issued a report (the “OIG Report”) addressing “Staffing Constraints, Safety and Health Concerns” at the NEIC laboratory. And, in June of 2023, the EPA’s Office of Criminal Enforcement, Forensics and Training Professional Integrity and Quality Assurance (PIQA) disclosed a summary of a statement (the “PIQA Statement”) that Martinez made to investigators about his suspension and the matters addressed in the OIG Report. The PIQA Statement primarily focused on waste-handling concerns at the NEIC but included one reference to the NEIC’s “failing asbestos program.”

    According to the Government, anything related to Martinez’s suspension, the OIG Report, and the PIQA Statement were irrelevant and did not implicate Martinez’s character for truthfulness. The Defendant responded by arguing that all three subjects were relevant. Namely, the suspension bore on Martinez’s expert qualifications and reliability, and the OIG Report and PIQA Statement reflected the “state of affairs at the NEIC at the time of its involvement in this case.”

    The Court held that Martinez’s suspension arguably bore on the reliability of his expert testimony yet how much weight to give, or not give, the Defendant’s credibility challenges was the jury’s call. The Court noted that Martinez was suspended for his duty-related failures while employed at the NEIC, and that the fact of his suspension did appear to have some tendency to discredit his performance of other job duties, such as testing asbestos content.

    The Court, based on the information now available to it, decided that the OIG Report and PIQA Statement addressed largely—if not entirely—unrelated concerns about the NEIC’s waste-disposal program and that the Report and Statement were irrelevant and off-limits on cross-examination to the extent it was true.

    The Court determined that the OIG Report and PIQA Statement were fair game on cross-examination to the extent they addressed problems (1) at the NEIC testing facility and (2) within the asbestos program.

    The Government also argued that Federal Rules of Evidence 404(a)(1) and 404(b)(1) precluded the Defendant from cross-examining Martinez about his prior suspension. Those rules barred the use of character and other act evidence to prove that a person acted in accordance with a certain character trait on a particular occasion. The Court held that the evidence of the suspension was not being offered to prove the witness’s character, but instead to rebut the Government’s representation of Martinez as a reliable expert whose testimony should be given special weight in light of his experience and expertise.

    Next, the Government sought to introduce Pavitt as a “regulatory expert” in order to “orient the jury as to the ‘requirements of federal regulations and what routine practices’ of the regulated community should be ‘according to the regulations.” Pavitt was hired to (1) Explain that the Clean Air Act regulates the handling and removal of asbestos through NESHAP; (2) Explain “the applicability of the asbestos NESHAP;” (3) Provide and explain the regulatory definitions of various terms, such as “facility component,” “owner or operator of a demolition or renovation activity,” “demolition,” “facility,” “regulated asbestos-containing material,” “friable asbestos material,” and “waste generator;” and (4) Explain “what the work practice standards required.”

    Defendant objected that Pavitt’s proposed testimony consisted of legal conclusions, usurped the Court’s role of instructing the jury, usurped the jury’s role of applying the law to the facts, was unhelpful, and created a risk of confusing the jury.

    The Court held that Pavitt may not opine on the applicability of the asbestos NESHAP, what he believes the work practice standards require, or what he believes owners and operators “should” do to comply with those requirements because opinions about the applicability and meaning of the requirements constitute “legal conclusions.” Moreover, testimony about what owners and operators “should” do to comply with the requirements would also invade the province of the jury to apply the law to the facts. The Court observed that allowing Pavitt to explain when the legal requirements apply and what they require would create a risk of juror confusion, were the witness’s interpretation or description to differ in any respect from the Court’s final instructions.

    Pavitt was, however, allowed to explain technical terms and concepts within the regulations that were likely unfamiliar to the jury and that were pertinent to his testimony considering the asbestos work practice standards contained several technical terms that are likely unfamiliar to the average juror.

    The Court held that Pavitt will be allowed to explain the meaning of technical terms used in the NESHAP to the extent it is necessary for the jury to understand his testimony but will not be allowed to interpret ordinary terms that the average juror is likely to understand.

    Held

    The Defendant’s motion in limine to exclude evidence related to the cause of the fire, evidence related to the dangers of asbestos and beliefs and opinions about ownership of the buildings and demolition company was granted in part and denied in part by the Court. Both the motions in limine filed by the Government to limit cross-examination of EPA Witness and introduce regulatory expert testimony was, once again, granted in part and denied in part by the Court.

    Key Takeaways:

    Key takeaways regarding expert testimony include ensuring its relevance to the case, with a focus on addressing pertinent issues and clarifying complex matters for the jury. Challenges to expert qualifications and reliability are admissible, particularly concerning incidents in their professional history that may impact credibility. Limitations exist on the scope of expert testimony, notably restricting it from offering legal conclusions or assuming the role of the court or jury in interpreting and applying the law. Clarity is essential to avoid confusing the jury, with technical terms explained as needed, while overly complex or confusing testimony risks being excluded. Courts balance the probative value of expert testimony against the risk of prejudice, confusion, or misleading the jury, potentially excluding irrelevant or confusing testimony. Ultimately, the jury decides the weight and credibility of expert testimony, applying the law to the facts presented in the case.

    Case Details:

    Case Caption: United States v. Pilling
    Docket Number: 4:22cr282
    Court: United States District Court for the District of Idaho
    Citation: 2024 U.S. Dist. LEXIS 36564
    Order Date: March 01, 2024

  • Business Administration and Management Expert Witness Testimony found Inadmissible for not Establishing a Method to Calculate Damages

    Business Administration and Management Expert Witness Testimony found Inadmissible for not Establishing a Method to Calculate Damages

    Plaintiff Kristina Cleaver initiated legal proceedings against her former employer, Transnation Title & Escrow, Inc. dba Fidelity National Title Company (“Fidelity”) based on an accusation of gender discrimination, purportedly in violation of both federal and state laws. Fidelity, identified as a title and escrow company specializing in real estate transactions in collaboration with real estate agents, employed Cleaver as a sales executive from June 2019 to March 2021. 

    Cleaver contended that Fidelity abruptly removed her from a significant account referred to as the “Sweet Account” in December 2019. The alleged reason behind this action was the refusal of the account’s lead real estate agent, Jeffrey Sweet, to continue working with Cleaver due to her gender. Cleaver sought compensatory damages, specifically for lost commissions, and additionally asserted a claim for punitive damages. 

    As part of the legal proceedings, Cleaver designated Kris Miller to provide expert opinions on matters related to discrimination and damages. However, Fidelity responded by filing a motion to “strike” Miller’s report and testimony under Rule 702 of the Federal Rules of Evidence. Fidelity contended that Miller was not qualified to provide opinions on either discrimination or damages, and even if he were deemed qualified, the company argued that his opinions were unreliable. Fidelity argued that Miller was not qualified to opine on either discrimination or damages and that, even if he were qualified, his opinions were unreliable. Alternatively, Fidelity argued that the Court should exclude Miller’s testimony because Cleaver designated Miller, a purported competitor of Fidelity, to improperly provide him with access to Fidelity’s confidential information. 

    On November 19, 2021, Cleaver had disclosed Miller as an expert witness specializing in “title and escrow company management and procedures” to provide opinions on discrimination and damages. In Miller’s initial report, he had articulated seven enumerated opinions, addressing discrimination by Fidelity and quantifying Cleaver’s damages. Regarding Cleaver’s income loss, Miller had indicated in the report that Fidelity had not furnished complete documents reflecting the actual income generated by the Sweet Team. In the absence of Fidelity’s cooperation, he asserted that his numbers were reasonably accurate, emphasizing that Fidelity’s failure to provide key documents, such as complete closed orders, created an unnecessary impediment to determining the loss more accurately. Miller had explicitly stated in his initial report that he would supplement or amend the report upon receiving the missing closed orders. 

    Simultaneously with Miller’s disclosure of his initial report, on the same day, Cleaver had filed a motion to compel Fidelity to produce the “closed orders for the entire year [of] 2021.” Cleaver argued that showing the amount of revenue generated by the Sweet Account for Fidelity was crucial. Despite Fidelity’s opposition, the Court had ruled in favor of Cleaver, deeming the Sweet Account closed orders critical for substantiating a claim for damages. The Court granted Cleaver’s motion and ordered Fidelity to produce the requested documents. 

    On March 11, 2023, a few weeks before Cleaver’s April 18 expert disclosure deadline, Fidelity had produced the Sweet Account closed orders for 2021. However, Miller did not supplement or amend his initial report to address Fidelity’s 2021 closed orders, even though he had received them before the expert disclosure deadline. After that deadline passed, Fidelity had deposed Miller. The deposition transcript provided by Fidelity to the Court indicated that Miller had received the 2021 closed orders, reviewed them, found them “incomplete,” and determined that they did not support his earlier “prediction.” After Miller’s deposition, Miller had produced a rebuttal report specifically addressing Cleaver’s damages. 

    Business Administration and Management Expert Witness 

    Kris Miller is currently Market President for Empire Title & Escrow located in Ada and Canyon Counties, Idaho. With over 15 years of employee management and leadership in a corporate environment, he is familiar with internal policies, practices and procedures for title companies. His expertise involves title company management, including the manner in which title companies hire, retain, develop, evaluate, compensate and promote employees.

    Discussion by the Court 

    In his initial report, Miller had expressed four key opinions: (1) Fidelity’s removal of Cleaver from the Sweet Account violated the company’s own policies related to equal opportunity and harassment; (2) Fidelity’s action contravened industry standards, irrespective of the industry; (3) any circumstance involving the removal of an employee from an account based on gender is inherently discriminatory, making Fidelity’s actions discriminatory; and (4) Fidelity had the option to abstain from removing Cleaver from the account and could have referred the client to another title company. Fidelity had contested these opinions, urging the Court to exclude them on the grounds that they constituted legal conclusions or would not be helpful to the jury. 

    The Court had concurred with Fidelity’s position. It had determined that Miller’s general, blanket opinions, particularly asserting that Fidelity’s removal of Cleaver from the Sweet Account was discriminatory, amounted to legal conclusions. The Court emphasized that Miller failed to provide an adequate explanation or basis for his conclusory opinion alleging discrimination by Fidelity. 

    Moreover, the Court had found that Miller’s opinions asserting Fidelity’s violation of its own company policies by removing Cleaver from the Sweet Account and implying available alternatives to such removal did not necessitate specialized knowledge that would assist the jury in understanding the evidence. The Court concluded that the jury was sufficiently capable of comprehending and drawing inferences from the available evidence without the need for expert opinions on these matters. 

    Additionally, the Court noted that Miller’s general and vague opinion about Fidelity violating industry standards, applicable across various industries, lacked a reliable basis applicable to the specific facts of the case. Miller had not identified any specific industry standard in support of his opinion. Consequently, the Court had granted Fidelity’s motion to exclude Miller’s testimony regarding his discrimination opinions based on these reasons. 

    Furthermore, Fidelity had contested Miller’s opinions concerning Cleaver’s damages, asserting, among other arguments, that those opinions lacked reliability. The Court agreed that Miller’s damage opinions did not fulfill the requirements for admissibility under Rule 702. Miller had made several broad statements regarding Cleaver’s damages, such as the impact of her removal from the Sweet Account on her industry reputation, the loss of past income from title and escrow transactions, the relative value of the 50% stock match, and a distinct loss of income attributed in part to a ‘loss of momentum.’ 

    However, the Court found that Miller had failed to provide a method for calculating these losses, did not conduct an analysis of the losses, and did not express any opinions regarding the specific amounts of these losses. Consequently, the Court concluded that these purported “opinions” did not meet any of the requirements outlined in Rule 702. 

    To reach his remaining damage opinions, Miller relied on a document entitled “Kristina Cleaver Income Loss” (“Income Loss document”) which consisted of calculations for Cleaver’s lost income from 2020 through 2025 based, in part, on  Cleaver’s compensation package, the “growth” of the number of agents on the Sweet team, increases in property values, and an increase in the Sweet team’s sales volume. Based on various assumed numbers, the document calculated an “actual revenue lost” of $311,756.50.  

    Fidelity represented that Cleaver and her counsel prepared the Income Loss document.  Although Cleaver disputed her counsel’s involvement in preparing the document, Miller testified during his deposition that, to his knowledge, Cleaver and her counsel prepared the document. That Miller did not prepare the document, however, was undisputed. Miller’s initial report regarding the Income Loss document stated that despite the lack of an absolute method of determining future income growth from the Sweet Team, the future escrow and title transactions and resultant income to Cleaver could be not be less than her calculations. Miller then adopted Cleaver’s damage number of $311,746.50. Further, he stated that “the actual number is 30% greater at $400,000.00-$450,000.00,” but provided no basis or explanation for reaching these numbers. 

    During Miller’s deposition he testified about his wholesale reliance on the Income Loss document, which Cleaver (perhaps with her counsel’s assistance) prepared.  

    Based on this testimony, the Court observed that it was evident that Miller was simply parroting Cleaver’s method, analysis, and calculations to determine damages. Since, Cleaver previously stated Miller adopted and ratified those calculations, she appeared to assert that Miller’s adoption and ratification of her calculations was enough to satisfy Rule 702. 

    The Court underscored the principle that an expert witness is not allowed to merely echo a party’s stance on an issue but must engage in an independent assessment of the opinions, in accordance with Rule 703 of the Federal Rules of Evidence. In this particular case, Miller had not fulfilled this obligation, and the opinions presented in his initial report did not adhere to the requirements outlined in both Rule 702 and Rule 703. 

    Despite Miller subsequently providing a rebuttal report in support of his opinions, the Court held that this rebuttal report could not rectify the substantial deficiencies found in his initial report. Fidelity’s argument was acknowledged, emphasizing that a party is not permitted to use a rebuttal report to address the inadequacies of its initial report. According to Rule 26(a)(2)(D)(ii) of the Federal Rules of Civil Procedure, rebuttal expert testimony is allowable only when intended to contradict or rebut evidence on the same subject matter identified by another party. It is limited to addressing new, unforeseen facts brought out in the opposing party’s case and cannot introduce new arguments or evidence.Furthermore, the Court highlighted that Cleaver had not addressed Fidelity’s contention that Miller’s rebuttal report did not rectify the defects in his initial report and could not be relied upon to substantiate her case-in-chief. 

    Miller’s initial opinions—by his own admissions in his deposition—were not based in facts or data or the product of reliable principles and methods. Rather, Miller simply adopted and ratified Cleaver’s version of the facts and data and her unproven method for calculating her damages based on that version. Miller exercised no expertise in establishing a method to calculate damages, and his opinions were not based on any independent analysis of any facts or data. Accordingly, the Court concluded that Miller’s damage opinions failed to satisfy Rule 702 and granted Fidelity’s motion to exclude Miller’s testimony about his damage opinions. 

    Because the Court excluded Miller’s expert testimony, it did not address Fidelity’s argument that Miller should be excluded as a sanction under Rule 37 of the Federal Rules of Civil Procedure. Further, the Court denied Fidelity’s other requests, including that Cleaver’s Income Loss document be “stricken”; that Cleaver be precluded from testifying about the information (although the Court will entertain appropriate, pretrial motions in limine regarding the information); and that the Court reconsider the prior order awarding attorney fees related to her motion to compel. 

    Held 

    The Court granted in part and denied in part Fidelity’s Motion to Strike the Expert Report and Testimony of Kris Miller. 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 Court decision in this case provides several notable insights into expert testimony. Firstly, the Court emphasized the imperative that expert opinions should not amount to legal conclusions or general assertions lacking a sufficient basis. Specifically, opinions offered by the expert, Miller, were considered too broad, constituting legal conclusions, and were excluded due to a lack of clarity and supporting rationale. Additionally, the Court stressed that expert opinions must be grounded in specialized knowledge to aid the jury’s understanding, and Miller’s opinions on policy violations and industry standards were found insufficient in this regard. 

    The Court subjected Miller’s damage calculations to scrutiny, pointing out their unreliability due to a lack of methodological clarity, failure to analyze losses, and absence of specific amounts. Notably, Miller’s reliance on a document prepared by Cleaver and her counsel raised concerns about the independence and expertise of the expert. The Court highlighted the importance of Rule 703, emphasizing that expert witnesses should not merely echo a party’s position but should engage in an independent assessment of opinions. 

    Furthermore, the Court clarified that a rebuttal report cannot remedy significant deficiencies in an initial report, in accordance with Rule 26(a)(2)(D)(ii). Rebuttal expert testimony is restricted to addressing new facts brought out by the opposing party and cannot introduce new arguments or evidence. The Court did not address Fidelity’s argument for sanctions under Rule 37, as the exclusion of Miller’s testimony obviated the need for such measures. 

    Additionally, the Court rejected Fidelity’s requests for preclusion of Cleaver’s testimony, striking Cleaver’s Income Loss document, and reconsideration of prior orders related to attorney fees. These denials were made in light of the Court’s decision to exclude Miller’s testimony. In essence, the case underscores the critical role of experts in presenting reliable and independent opinions, ensuring adherence to procedural rules governing expert testimony.

    Case Caption Cleaver V. Transnation Title & Escrow, Inc.
    Docket Number 1:21cv31
    Court United States District Court, Idaho
    Citation 2024 U.S. Dist. LEXIS 16930
    Order Date January 29, 2024