Expert Witness Profiler

Tag: Legal Opinion

  • 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
  • Accounting Experts’ Testimony on Exclusivity Agreement Limited

    Accounting Experts’ Testimony on Exclusivity Agreement Limited

    CellMark brought several claims against Dinah Bowman, Göran Sohl, and
    Fortex Americas, LLC (collectively the “Fortex Defendants”), as well as Rob Webster arising out of the unamicable end of Webster’s employment at CellMark in 2024.

    Plaintiff CellMark, Inc. retained an expert, Jay Cunningham, to show that it
    suffered various economic damages arising from its claims in this case.

    Webster retained Joshua Shilts to rebut Cunningham’s opinions, and the Fortex Defendants retained Robert Kester for the same purpose.

    CellMark filed a motion to exclude certain testimony from the Defendants’ rebuttal experts.

    Accounting Expert Witnesses

    Joshua James Shilts CPA,ASA, CFF/CGMA/ABV, CFE, has held roles with public accounting firms ranging in size from the “Big Four” to smaller regional and local firms, as well as large public organizations throughout Florida and New York.

    Shilts has provided expert testimony in commercial and family matters involving business valuation, economic damages, fraud, and other disciplines related to economics and accounting issues.

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

    Robert Breece Kester, CPA/ABV/CFF, specializes in the assessment of economic damages, business valuation, and accounting matters. He has provided consulting services related to businesses across a cross-section of industries, including but not limited to financial services, manufacturing, restaurants, retail, distribution, transportation, logistics, construction, professional services, and many other specialized industries.

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

    Discussion by the Court

    A. Shilts and Kester may not testify about any legal opinions.

    CellMark argued that Shilts’ and Kester’s reports are littered with legal opinions and that they must be prohibited from testifying as to those points at trial.

    Both Shilts’ report and Kester’s report contain conclusion sections that summarize their criticisms of Cunningham’s report.

    The conclusion sections of the Defendants’ reports veer into the realm of legal opinion by calling Cunningham’s opinion speculative, unreliable, and unsupported by sufficient data. Thus, the Court granted CellMark’s motion to exclude testimony from Shilts and Kester that invaded the province of the Court by stating legal opinions and invaded the province of the jury by telling it how it should weigh the evidence.

    B. Shilts and Kester may critique Cunningham’s reliance on assumptions regarding the exclusivity agreement, but they may not opine as to the ultimate truth of those assumptions.

    Next, CellMark argued that Shilts and Kester may not testify about whether Cunningham correctly assumed for his damages model that CellMark would have renewed an exclusivity agreement.

    Shilts and Kester both criticized Cunningham’s report for assuming that CellMark would have renewed its exclusivity agreement with Asia Pulp and Paper but for Webster’s failure to renew the agreement.

    While Shilts and Kester may critique Cunningham’s assumptions regarding the exclusivity agreement, they must avoid testifying about whether the agreement should have been renewed or whether it would have been renewed but for Webster’s conduct.

    Accordingly, the Court denied CellMark’s motion to the extent it mischaracterized the Defendants’ reports.

    But the Court granted the motion to the extent Shilts and Kester intended to testify that the evidence showed that the exclusivity agreement would not have been renewed in any event and to the extent they intended to testify that Cunningham’s opinions are not based on truthful or objective evidence.

    C. Similarly, Shilts may critique Cunningham’s reliance on assumptions about continued business with Duro-Last, but he may not opine as to the ultimate truth of those assumptions.

    Shilts’ report said that his “understanding is that Duro-Last wanted to consolidate suppliers” and that this could have reduced CellMark’s lost profits attributable to Duro-Last.

    Shilts made it clear that his testimony as a rebuttal expert will criticize Cunningham’s opinion on damages— nothing more.

    But the same concerns for the exclusivity agreement issue apply here. Shilts’ testimony must not state whether it is true that Duro-Last allegedly wished to consolidate suppliers or that Cunningham’s opinions are not supported by truthful or objective evidence.

    Accordingly, the Court denied CellMark’s motion to the extent it mischaracterized Shilts’ report. Shilts may critique the assumptions that Cunningham relied upon regarding the volume of business that CellMark would have continued to receive from Duro-Last. But the Court granted the motion to the extent Shilts intended to testify that the evidence showed that Duro-Last desired to consolidate suppliers and therefore would not have continued to place orders with CellMark.

    D. Shilts and Kester may testify about CellMark’s damages, including by providing quantified examples of how they believe Cunningham’s calculations overstate the potential damages.

    CellMark said that the Defendants’ experts should not be allowed to testify to the total amount of damages that CellMark suffered or what the damages period should be because it would be testimony on an undisclosed opinion and would mislead the jury and confuse the issues.

    Shilts and Kester did not provide a single, quantified total of CellMark’s damages in their reports, unlike Cunningham.

    Instead, their reports took a piecemeal approach to separately criticize various aspects of Cunningham’s model, and they pointed out instances where they believe Cunningham’s calculations have overstated the potential damages by a specific, quantified amount.

    Expert testimony by Shilts and Kester about CellMark’s damages clearly falls within the scope of rebuttal. The Defendants’ expert disclosures were properly made, and testimony consistent with their reports would help the jury understand any perceived problems with Cunningham’s opinions on damages. The lack of a total damages calculation is not a good reason to preemptively exclude such testimony when it was within the experts’ purview to use a piecemeal approach instead.

    The Court recognized that there is a potential for the jury to be confused by the ways in which Shilts and Kester might provide discrete quantified examples of how they believe Cunningham’s calculations overstate CellMark’s prospective damages. If properly explained, those quantified examples can be helpful to the jury in evaluating Cunningham’s opinions and calculations.

    E. Shilts may testify about the decline in the distilled spirits industry.

    Lastly, CellMark argued that Shilts may not testify about a decline in the
    distilled spirits industry to rebut Cunningham’s damages calculations.

    According to CellMark, Shilts’ testimony would unreasonably rely upon an online news article for which Shilts does not know the identity of the author. The news article summarized a variety of surveys and reports about alcohol consumption by Americans to suggest that it is on the decline.

    Whether news articles or reports are a reliable basis for an opinion depends on the context and the kind of expertise at issue.

    It is widely believed that the alcohol industry is on the decline in the United States generally, and Shilts offered testimony on this point to lay out a factor that he believed Cunningham should have considered.

    The Court is satisfied that the article contains the kinds of facts and data that business experts would rely upon, but Cellmark is free during trial to challenge Shilts about his knowledge of the article’s author and publisher.

    For now, the Court concludes that Shilts should be allowed to testify about the decline in the alcohol industry and the impact he believes that has on Cunningham’s opinions.

    Held

    The Court granted in part and denied in part CellMark’s motion to exclude certain opinions of Robert Kester and Joshua Shilts.

    Key Takeaway

    A rebuttal expert’s role is to contradict or rebut evidence on the same subject matter identified by another party’s expert disclosure. They have no burden to produce models or methods of their own; they need only attack those of the opposing experts.

    Case Details:

    Case Caption: Cellmark, Inc. V. Webster
    Docket Number: 2:24cv181
    Court Name: United States District Court, Kentucky Eastern
    Order Date: May 26, 2026
  • Law And Legal Expert Not Allowed to Opine on Contract Formation

    Law And Legal Expert Not Allowed to Opine on Contract Formation

    These two consolidated cases stem from a train derailment involving a National Railroad Passenger Corporation (“Amtrak”) train that occurred on June 27, 2022, on BNSF’s track near Mendon, Missouri. 

    BNSF filed a motion to exclude the opinions of Defendants’ disclosed experts, Allen Rostron and Jasmine Abdel-khalik, both of whom are law school professors. BNSF argued that the opinions of the two professors should be excluded as improper legal conclusions.

    Law And Legal Expert Witnesses

    Allen Rostron received a J.D. degree from Yale Law School in 1994. He served as a law clerk for Judge T. S. Ellis III in the U.S. District Court for the Eastern District of Virginia from 1994 to 1995. He also practiced law at the Cravath, Swaine & Moore law firm in New York City from 1995 to 1999, and at the Brady Center to Prevent Gun Violence in Washington, DC from 1999 to 2003. Rostron has been a law professor at UMKC since 2003. The courses that he teaches include Constitutional Law and Torts.

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

    Jasmine C. Abdel-khalik is a full Professor of Law at the University of Missouri – Kansas City (UMKC) School of Law. She received her B.A. degree in history and sociology from Cornell University in 1997 and her J.D. degree from the University of Michigan in 2000. She worked at Baker & McKenzie, in the Chicago office, for three and a half years and then worked at Freeborn and Peters, now Smith Gambrell Russell, for nearly one and a half years.

    Want to know more about the challenges Jasmine Abdel-khalik has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    Allen Rostron was supposed to offer an opinion “on whether Amtrak is a governmental entity, for constitutional purposes, when it sells tickets to passengers.”

    In his report, Rostron concluded that “it is his opinion, based on a reasonable degree of certainty as a constitutional scholar, that Amtrak is engaged in government action, for constitutional purposes, when it conducts its activities, and those activities would include selling tickets to train passengers.”

    Rostron reached his conclusion by considering the Rail Passenger Service Act of 1970 and other general characteristics of Amtrak, and by examining and applying case law from the United States Supreme Court to the facts and circumstances of these two consolidated cases.

    Abdelkhalik was supposed to offer an opinion as to “whether the facts as to the structure of the terms, complexity of the language, punctuation as well as the factual manner in which the Amtrak’s Arbitration Agreement and its delegation clause were made available to the passengers, if at all, speaks to the validity and scope of those alleged agreements.” Abdel-khalik stated in her report: “I have examined Amtrak’s Arbitration Agreement and delegation clause and, in my opinion, have identified issues with contract interpretation, enforceability, and formation.”

    Like Rostron, Abdel-khalik based her opinion on case law. In her report, she offered a number of opinions such as whether the language of Amtrak’s Arbitration Agreement, and more specifically its delegation clause, is ambiguous, and whether the delegation clause is unenforceable or invalid as unconscionable. She also offered opinions as to whether the various passengers formed a contract with Amtrak. In reaching her conclusions, she examined the law of agency and legal principles of actual and apparent authority.

    Analysis

    Rostron and Abdel-khalik are legal experts, who are being offered to provide their legal opinions regarding a number of legal issues in dispute in these two consolidated cases. They are not being offered to assist a factfinder in understanding a disputed fact.

    Allen Rostron

    With regard to Rostron, Defendants argued that his opinion — that Amtrak is engaged in a government action for constitutional purposes when it sells tickets — is based on a review of the facts. But whether Amtrak is engaged in a government action for purposes of the Constitution is a legal conclusion, and Defendants admitted that Rostron relied extensively on cases from the Supreme Court in reaching his conclusion. They argued that “he reviewed those cases, not for their legal principles, but for their rendition of similar facts essential to answering the question posed by this Court and for the way that the Court treated those facts.” In other words, Rostron formed his opinion by looking for legal precedent, and he then applied his knowledge of the law to the facts. This is legal reasoning and analysis.

    As a result, the Court found that Defendants are offering Rostron to provide legal opinion, contrary to Rule 702.

    Jasmine C. Abdel-khalik

    As for Professor Abdel-khalik, Defendants argued that her expert opinion is being offered to assist the Court in understanding how a consumer might understand Amtrak’s Arbitration Agreement.

    Defendants’ characterization of Abdel-khalik’s report is not accurate. Abdel-khalik did more than “occasionally” reference legal terminology or cases. Basically, she applied the facts of the case — which does include the language of the Arbitration Agreement — to what she considered to be relevant case law. She offered opinions on a number of legal issues involved in this dispute including the following: whether Amtrak’s Arbitration Agreement is ambiguous; whether it is unconscionable; whether there was mutual assent; whether a contract was formed; if a contract was formed, what are its terms; and whether the Defendant passengers can be bound by the actions of persons who bought tickets for them.

    Held

    The Court granted BNSF Railway Company’s motion to exclude the opinions of Defendants’ experts Allen Rostron and Jasmine Abdel-Khalik.

    Key Takeaway

    Contract formation, interpretation, and construction are legal issues to be determined by the Court. Like Rostron, Abdel-khalik formed her opinions by applying her knowledge of the law to the facts of the case, which is legal reasoning. Abdel-khalik is not being offered to assist a trier-of-fact in understanding a disputed fact, but rather Defendants sought to introduce Abdel-khalik’s legal opinions, which is not allowed.

    Case Details:

    Case Caption: BNSF Railway Co. v. Magin
    Docket Number: 2:22cv68, 2:24cv41
    Court Name: United States District Court, Missouri Eastern
    Order Date: March 26, 2026
  • Insurance Expert Not Allowed to Opine on the Cause of Death

    Insurance Expert Not Allowed to Opine on the Cause of Death

    Plaintiffs are the estate and heirs of Timothy Hunt, who was killed in a grain engulfment accident. Defendant is the insurance company who insured the farm (Butts Farms) where the accident occurred. Defendant denied coverage for the accident under the policy. Butts Farms assigned its claims to Plaintiffs as part of an arbitration and non-execution agreement. Plaintiffs secured an arbitration award of approximately $12 million against Butts Farms and seeks to collect that from Defendant.

    Plaintiffs designated Ronald Clifton as an expert on Defendant’s claims handling practices. Clifton’s report outlined the facts of the case, and in doing so concluded that the grain vacuum Hunt was using was attached to the trailer. He opined on the liability of Butts Farms, coverage of the loss under the policy, claims handling deficiencies by Defendant, Defendant’s conformance with its “Claims Best Practices” and the Kansas Unfair Claim Settlement Practices Act, and Defendant’s breach of fiduciary duty toward Butts Farms.

    The Defendant filed a motion to exclude Plaintiffs’ expert Clifton.

    Insurance Expert Witness

    Ronald Clifton has over 37 years of claim handling experience. He has also served as an insurance claims litigation consultant for over 21 years.

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

    Discussion by the Court

    Clifton’s opinion is “that a reasonable insurer would have settled this claim and paid the full available policy limits,” that Defendant acted negligently by failing to settle the claim for policy limits, and that Defendant failed to act in good faith in handling the claim.

    The Court has reviewed Clifton’s report. It shared many of the concerns raised by Defendant. Clifton’s report includes an extensive discussion of policy provisions and a conclusion that the accident is covered under the policy.

    Analysis

    To begin with, Clifton concluded without elaboration that the grain vacuum was attached to the grain trailer. But that is a factual question the jury will be asked to decide—a fact question that does not require expert testimony. If a jury finds the grain vacuum was attached to the trailer (which can include being tied), coverage exists under the policy. It is not Clifton’s role to tell the jury how they should decide by simply declaring there is coverage based on the grain vacuum being attached. 

    To the Court’s knowledge, there are no disputes about any other provisions in the policy. Even to the extent there was an issue about the policy, it is not Clifton’s role to opine on what the policy says or does not say because that is a legal issue for the Court to decide.

    Clifton’s report also repeated opinions of others, including a doctor’s opinion about Hunt’s cause of death. Clifton is not qualified to opine on that issue, nor is it proper for him to simply repeat what others have said. To the Court’s knowledge, Hunt’s cause of death is not an open issue in this case.

    There are other opinions that do not seem to “fit” the case. For example, Clifton’s report included a series of opinions that Butts Farms had a duty to exercise reasonable care toward Hunt, and it breached that duty. To the Court’s knowledge, Butts Farms’ obligations toward Hunt are not an issue the jury will be asked to decide. Additionally, Clifton opined that Defendant breached its fiduciary duty to Butts Farms. This opinion is conclusory and veers into legal opinion.

    Held

    The Court granted in part and denied without prejudice in part the Defendant’s motion to exclude the testimony of Ronald Clifton.

    Key Takeaway

    The Court found that many of Clifton’s opinions are not relevant, would not aid the jury, or touch on legal matters or on matters beyond his expertise. However, Clifton did have some expertise that qualifies him to offer opinions about insurance industry standards and practices. What those opinions are and the basis for them are not clear from the report, however. Accordingly, the Court will voir dire Clifton before the trial.

    Case Details:

    Case Caption: Hodges V. Farm Bureau Property & Casualty Insurance Company
    Docket Number: 6:24cv1031
    Court Name: United States District Court, Kansas
    Order Date: February 10, 2026
  • Marketing Expert’s Testimony on Review Hijacking Limited

    Marketing Expert’s Testimony on Review Hijacking Limited

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

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

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

    Defendants filed a motion to exclude the testimony of Hollenbeck.

    Marketing Expert Witness

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

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

    Discussion by the Court

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

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

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

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

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

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

    2. The Expert Report is Not Improper under FRE 703

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

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

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

    3. The Expert Report Applies Reliable Methods

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

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

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

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

    4. The Expert Report Attempts to Introduce Legal Opinions

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

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

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

      Held

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

      Key Takeaway:

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

      Case Details:

      Case Caption: ML Products Inc. V. Billiontree Technology USA, Inc.
      Docket Number: 2:23cv8626
      Court Name: United States District Court for the Central District of California
      Order Date: August 26, 2025
    1. Insurance Expert Witness’ Testimony With Regard to the Contract Interpretation Claims Excluded

      Insurance Expert Witness’ Testimony With Regard to the Contract Interpretation Claims Excluded

      Plaintiffs (collectively, Allied World) are insurance companies that denied coverage to Defendant MNS Ltd., a retailer, for liability stemming from MNS’s settlement of a separate class action lawsuit. In the present lawsuit, two sets of claims are teed up: first, whether Allied World owes MNS a duty of coverage under the relevant insurance policies, and second, whether Allied World acted in bad faith toward MNS. The first set of claims involve legal questions of contract interpretation while the second set of claims are less specific and potentially raise a host of factual questions about the behavior of the parties and their agents. And the latter bad-faith claims are likely to be narrowed—or at least crystallized—once the legal questions of contract interpretation have been resolved. 

      MNS disclosed the expert report of David A. Gauntlett, an insurance coverage attorney. His report touches on both the contract interpretation claims and the bad faith claims.

      Allied World contended that Sections I, II, III, IV, and portions of Section VI of Gauntlett’s report should be stricken because they “appear to relate to Gauntlett’s coverage opinions, as opposed to his bad faith opinions.”

      Allied World argued that the report “flagrantly violates the sacrosanct principle of law that ‘an expert cannot testify to a matter of law amounting to a legal conclusion.’”

      Insurance Expert Witness

      David A. Gauntlett is the principal of Gauntlett & Associates and a 1979 graduate of Boalt Hall School of Law, University of California at Berkeley. Gauntlett is an expert in insurance issues, including the proper construction, meaning, and application of insurance policies, insurer’s investigation and handling of insured’s claims, and insurer’s bad faith.

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

      Discussion by the Court

      In Section I, Gauntlett begins his report with the open acknowledgment that it contains “legal research and analysis.” Section II is entitled “Allied World’s Problematic ‘Exhaustion’ Position.” There, Gauntlett argued that Allied World’s first amended complaint “misconstrued” the policy, and contended that “as defined by the policy and interpreted by applicable case law,” the policy must be read in Gauntlett’s preferred manner. In Section III, Gauntlett argued that in light of his preferred reading of case law, the policy’s “First Publication exclusion” should be interpreted as limiting coverage in a manner he proposes. In Section IV, he argues that while there is a dearth of case law on a point of interpretation, one “Hawaii case” supports his preferred reading and “a number of other cases are in accord.” He therefore opines that “Hawaii law will not enforce Allied World’s ‘exhaustion’ claim.” 

      And, finally, in Section VI, Gauntlett opines that “under Hawaii law,” MNS should be able to recover attorney’s fees and is entitled to prejudgment interest. 

      Anticipating this objection, Gauntlett writes in his report that Federal Rule of Evidence 702—the rule governing the admissibility of expert testimony—”is satisfied” because “legal analysis is a critical component of claims analysis.”

      The legal analysis in Gauntlett’s report cannot be viewed as merely laying the foundation for proper non-legal opinions

      The argument appears to be that because an insurer must understand the law when conducting a “reasonable investigation,” an expert too must “understand those same cases” to “evaluate whether the insurer’s conduct deviates so far from industry customs and practices as to run afoul of that case authority.” And in its briefing, MNS elaborates on this contention, noting that “the Court has not yet ruled that the provisions at issue are unambiguous,” and therefore, “insurance custom and practice is relevant to the issue of coverage and such insurance custom and practice is necessarily informed by the applicable cases.”  

      It is true that when passing references to legal terms are used merely to lay the foundation for an expert’s non-legal opinions, those legal references will not necessarily render the expert’s opinions improper.

      However, the legal analysis in Gauntlett’s report cannot be viewed as merely laying the foundation for proper non-legal opinions—such as opinions about industry custom or practice, the extent to which Allied World’s conduct may have deviated from them, or what participants in the insurance industry might typically understand policy provisions to mean. That is because nothing in any of the challenged sections of Gauntlett’s report—Sections I, II, III, IV, or VI—appears to actually offer any opinions of that non-legal variety. Accordingly, while it is sometimes appropriate for an expert to discuss legal materials to lay the groundwork for non-legal opinions about industry customs and practices, Gauntlett’s expert report cannot take refuge in that principle because his report—at least as far as coverage is concerned—merely discusses and critiques the case law and then simply stops there.

      The Court must also more broadly assess whether it is appropriate, under Rule 702, to allow the challenged opinions

      MNS rejoins that Gauntlett’s discussion of the case law would still be helpful to the Court in resolving the coverage issues—which MNS emphasizes are complex and not routinely encountered—and that the motion to strike may be denied for that reason alone. It is certainly true that a legal expert’s legal opinions often are helpful, which is why such experts file amicus briefs to express their legal views.

      But Gauntlett does not merely wish to express his views here as an amicus. Instead, he has submitted an expert report under Federal Rule of Evidence 702. The question for the Court, therefore, is not merely whether Gauntlett’s expert’s opinions might be helpful. The Court must also more broadly assess whether it is appropriate, under Rule 702, to allow the challenged opinions. And when, as here, an expert offers nothing but legal opinions, the answer must be no. 

      MNS offers a few other defenses of the report, but none are availing

      First, MNS argued that Gauntlett’s report “largely relates to bad faith issues,” and it points out that Allied World seeks only to strike the portions of the report concerning coverage issues. Although five of the report’s seven sections appear to contain largely legal discussions about coverage, MNS argues that “to support and explain his opinion that Allied acted unreasonably in denying coverage”—an issue that pertains to the bad faith claims—Gauntlett “necessarily must comment upon the allegations in the complaint, the terms and provisions of the Policy, and the relevant case law.” MNS’ argument offers a reason why the Court should leave the expert report in place for now insofar as the bad faith claims are concerned, but that reason does not support leaving the expert report in the record with respect to the coverage claims.

      Second, MNS contended that Gauntlett has previously been allowed to testify as an expert in at least two cases. But as MNS itself acknowledges, Gauntlett’s testimony in those cases, although touching on case law and legal standards, ultimately concerned the industry standard of care and an insurer’s alleged “bad faith handling of a claim.” However, Allied World is not challenging, at least at this stage, the propriety of Gauntlett’s expert report as to those issues.

      Third, and finally, MNS argued that there is no harm in allowing the expert report to remain in place because the Court will make its own decisions about the proper interpretation of the policy provisions, and it can consider Gauntlett’s report to whatever extent it thinks appropriate. But it would impose on Allied World the unwarranted cost of having to conduct a deposition of—and possibly additional discovery concerning—the expert, despite the impropriety of the expert’s legal opinions on coverage. 

      There is, therefore, no reason to wait to see what passages MNS might rely on in its summary judgment briefing; because none of the challenged sections move beyond legal opinions

      When a motion to strike expert testimony is filed in advance of summary judgment motions and this far in advance of trial, it is often prudent to deny the motions as premature. 

      In this case, however, the Court concludes it is appropriate to grant the motion to strike now. For one thing, Allied World makes a properly tailored request: it does not seek to strike the entire report, but merely the specific sections that it believes concern the coverage issues. For another, the Court need not strike any parts of the report as to the currently-stayed bad faith claims. 

      Held

      The Court granted Allied World’s motion to the extent it seeks to strike Sections I, II, III, IV, and portions of Section VI of David Gauntlett’s expert report in connection with the coverage claims that are currently being litigated. The Court does not, however, strike any aspect of David Gauntlett’s report as to the bad faith claims that are currently stayed. Whether Gauntlett’s report should be stricken in whole or part as to the bad faith claims is an issue that the Court need not—and, therefore, will not—resolve until the stay of the bad faith claims has been lifted. To the extent Allied World’s motion requested that this Court strike the challenged portions in connection with all claims, therefore, the Court denied that aspect of Allied World’s motion.

      Key Takeaway:

      Allied World does not seek to strike the entirety of Gauntlett’s report for both phases of the case, but only those aspects that appear to concern the contract interpretation or coverage claims that are currently being litigated. To that end, Allied World contends that Sections I, II, III, IV, and portions of Section VI of Gauntlett’s report should be stricken because they “appear to relate to Gauntlett’s coverage opinions, as opposed to his bad faith opinions.” 

      The legal analysis in Gauntlett’s report cannot be viewed as merely laying the foundation for proper non-legal opinions. Nothing in any of the challenged sections of Gauntlett’s report—Sections I, II, III, IV, or VI—appears to actually offer any opinions of that non-legal variety. Indeed, at the hearing on the motion, the Court directly asked MNS’s counsel whether he could identify any sentence in the challenged sections of Gauntlett’s report that did more than merely describe and critique case law. Counsel could not do so. Accordingly, while it is sometimes appropriate for an expert to discuss legal materials to lay the groundwork for non-legal opinions about industry customs and practices, Gauntlett’s expert report cannot take refuge in that principle because his report—at least as far as coverage is concerned—merely discusses and critiques the case law and then simply stops there.

      Case Details:

      Case Caption: Allied World National Assurance Company V. Nhc, Inc.
      Docket Number: 1:22cv469
      Court: United States District Court, Hawaii
      Order Date: December 05, 2024
    2. Florida Court admits construction expert’s testimony assessing negligence claims in personal injury action 

      Florida Court admits construction expert’s testimony assessing negligence claims in personal injury action 

      Image depicting a construction site cap of workers, representing the context of the expert testimony in the construction industry

      Expert Testimony on Workers’ Compensation Insurance Practices

      Plaintiff Dennis Scott initiated a personal injury lawsuit against Defendant Paychex Insurance Agency, Inc. The case revolves around a Certificate of Insurance (COI) that Paychex Insurance Agency issued to James A. Jones, a general contractor. The situation arose in connection with a construction project for which Jones engaged Central Florida Siding Pros, LLC (CFSP) as a subcontractor.

      Jones required proof of workers’ compensation insurance from subcontractors, and CFSP obtained its policy through Paychex Insurance Agency, with a coverage period of April 29, 2017, to April 29, 2018.

      On February 6, 2018, the Paychex Insurance Agency issued the COI to Jones, stating CFSP’s coverage period as April 29, 2017, to April 29, 2018. However, at this time, CFSP’s workers’ compensation insurance policy was facing potential jeopardy due to non-payment of premiums.

      Paychex Insurance Agency had an obligation to notify NorGuard, the insurer, if CFSP failed to pay premiums, which could lead to the loss or non-renewal of coverage. Paychex Insurance Agency knew that notifying NorGuard of CFSP’s noncompliance might result in the policy’s cancellation. 

      By January 16, 2018, CFSP had not paid premiums, and on January 23, 2018, Paychex Insurance Agency informed NorGuard of CFSP’s noncompliance. Subsequently, on January 24, 2018, NorGuard issued a Notice of Cancellation, with the policy set to expire on February 10, 2018. The exact point at which Paychex Insurance Agency learned of this impending cancellation is disputed. 

      Despite the looming cancellation, the COI falsely indicated that CFSP’s insurance would continue until April 29, 2018. However, the policy was actually cancelled on February 10, 2018. On April 24, 2018, Plaintiff Dennis Scott sustained injuries while working on the Project. 

      During the ensuing workers’ compensation proceedings, the Judges of Compensation Claims (JCC) determined that CFSP was Scott’s employer at the time of the injury, despite lacking workers’ compensation insurance.

      Additionally, Jones was considered the employer and was deemed liable for Scott’s injuries since he didn’t have the necessary workers’ compensation coverage for non-lease employees. Following this determination, Jones and Scott reached a settlement agreement, and Jones assigned to Scott any potential claims against Paychex Insurance Agency, Inc. 

      Overall, the lawsuit revolves around the allegedly fraudulent or misleading COI issued by Paychex Insurance Agency to James A. Jones, which falsely indicated insurance coverage for CFSP beyond the actual policy cancellation date. This misinformation played a role in the subsequent workers’ compensation proceedings and the determination of liability for Scott’s injuries. 

       
      Construction Industry Expert Witness

      Paychex Insurance Agency, Inc. offered the expert testimony of Eric Todd Alford at trial “to testify as to the best practices for general contractors in obtaining proof of workers compensation insurance from subcontractors, and verification of coverage, pursuant to industry standards.”  Alford reviewed documentary evidence from this case to offer opinions on the likely identity of Scott’s employer at the time of the accident; the responsibilities of general contractors regarding obtaining and verifying workers’ compensation insurance; and the interactions between insurers, insurance agents, and contractors. Alford also provided expert opinions about the “best practices and applicable standard of care for general contractors.” 

      Alford is a state of Florida Certified General Contractor, and past president and member of the Board of Directors for Association of Subcontractors. He has worked in the construction industry for almost four decades and holds numerous construction and contracting certifications. 

      Dennis Scott demanded exclusion of Alford’s testimony contending it was inadmissible as per the Daubert standards since it consisted of unreliable, unqualified, improper lay opinions which were also impermissible legal conclusions. 

      Discussion by the Court  

      The Court observed Plaintiff’s argument that Alford was offering unqualified, improper lay opinions basically involved two separate questions: One question was whether Alford was a qualified expert; the other was whether Alford’s opinions were helpful enough to be of assistance to the jury, rather than improper lay testimony.

      Plaintiff argued that Alford was not qualified as an expert in employment law, taxation principles, or statutory analysis. The Court held that Alford’s testimony was limited to matters within the scope of his expertise such as the best practices for general contractors in obtaining proof of workers’ compensation insurance from subcontractors and verification of coverage, pursuant to industry standards considering he had worked in the construction industry for almost four decades and held numerous construction and contracting certifications.

      The Court concluded that neither the Defendant nor Alford’s expert report consisted of any opinions from the topics the Plaintiff identified. The Court rejected the Plaintiff’s argument that Alford was only qualified to offer opinions on “highly technical construction issues” as opposed to opinions otherwise resulting from the expertise he gained in a lifetime of work as a general contractor 

      Plaintiff was free to take up his concerns regarding the scope of Alford’s expertise with the jury but no ground was found to warrant the Court’s disqualification of Alford’s testimony. 

      Usually the expert testimony must be of assistance to the Court and the jury when it comes to deciding matters beyond the understanding of the average lay person in order to be admissible. 

      The Court found that Alford’s opinions were crucial to analyse the claims critical to the Plaintiff’s case and the Defendant’s defense. For instance, when the Plaintiff accused the Defendant of negligent misrepresentation and the negligent-supply-of-information, Alford addressed the issue of whether or not Jones exercised the necessary reasonable diligence regarding his reliance on the COI by looking into whether it was appropriate for Jones, as a seemingly experienced general contractor, to take no further action once he obtained the COI through his expert opinions which could be relevant to Defendant’s comparative negligence defense. As previously established, Alford’s understanding of contractors and workers’ compensation insurance qualified him to opine on such issues and hence his testimony was very helpful to the trier of fact. 

      When an expert is retained, his opinion is generally sought regarding the ultimate issue of fact and he is supposed to refrain from testifying as to the legal implications of the conduct. The Court noted that even though Alford had referenced certain Florida statutes so as to apply the facts and evidence in order to provide an opinion, his testimony did not consist of impermissible legal conclusions since he was not providing opinions as to the official interpretation of the sections concerned. 

      Plaintiff insisted that Alford’s opinions were unreliable because they rested “on a flawed and incomplete analysis” and “jumped to conclusions based upon misconstrued and incomplete evidence.” When the Plaintiff attacked Alford’s methodology, the Court felt it was partially justified considering the substance of Alford’s opinions left something to be desired since he based some of his opinions on disputed facts. But the Court also held that it was the jury’s place to assess the persuasiveness of Alford’s proffered opinions. Even though the Plaintiff listed multiple flaws in Alford’s methodology, the Court held that it could only be effectively addressed through means of cross examination instead of a motion to exclude.

      Held 

      The Court held that Alford’s opinions were reliable as per the Daubert standards since his opinions were sufficiently based on the application of his expertise and denied the Plaintiff’s motion to exclude the testimony of Defendant’s expert witness, Todd Alford. Since the proceedings of the case are ongoing, the outcome of the case is unknown. 

      Key Takeaways: 

      1. Qualification: If an expert testifies within the scope of his expertise, the Court deems him qualified to provide opinions that shed light on the issues being addressed based on his experience and training. 
      1. Lay Testimony vs Expert Testimony: If the expert is providing testimony on matters beyond the understanding of the average lay person and such testimony is found to be helpful to the trier of fact, it qualifies as expert testimony instead of lay testimony. 
      1. Persuasiveness vs Admissibility: Usually the testimony is found to be admissible if it is premised on the application of the expert’s training and experience hence if the jury finds that the testimony is not persuasive enough or if the opposing party finds the expert’s methodology error-prone, it may not always necessarily affect the admissibility of the expert’s testimony if those errors are found to concern the persuasiveness of the expert’s testimony. Only if the expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded. 
      1. Legal Conclusion: The expert is allowed to refer to and mention legal sections as long as he is not testifying about the official interpretations of the legal sections or the legal implications of the conduct.