Expert Witness Profiler

Tag: malpractice

  • Law And Legal Expert Not Allowed to Opine on Forfeiture

    Law And Legal Expert Not Allowed to Opine on Forfeiture

    Plaintiff Charm Hospitality, LLC filed this lawsuit alleging, inter alia, legal malpractice against Defendant Nohayia Javed, Esq. Specifically, Charm made various allegations, in which it contended that Javed fell below the standard of care in her representation of Charm in connection with her prosecution of an insurance claim relating to water damage sustained at a Hotel owned by Charm in Elko, Nevada. The Hotel and the business’ personal property (“BPP”) were insured by General Security and Indemnity Company of Arizona (“GSICA”).

    Javed filed a motion to strike Plaintiff’s expert, Rob Bare.

    Law And Legal Expert Witness

    Rob Bare worked at the State Bar of Nevada for 17 years (and as the chief attorney for 15 of those years), in which he prosecuted and tried 870 disciplinary hearings.

    A  graduate of the University of Pittsburgh School of Law, he also served as a judge in Department XXXII of the Nevada Eighth Judicial District Court. 

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

    Discussion by the Court

    A. Bare is qualified to offer an expert opinion

    Javed argued that Bare is not qualified to testify because he lacked knowledge and experience in the areas of law that are relevant to the underlying action. She contended that Bare has no experience performing
    client conflicts, prosecuting first-party insurance claims, or handling commercial litigation.

    Bare opined that Javed (1) breached the duty of competent and diligent representation by failing to research Nevada and Illinois law prior to advising Charm that West Town Bank needed to be a co-client; (2) breached the duty of communication by failing to advise Charm that (a) Javed was not licensed to practice law in Nevada or Illinois, (b) Charm may not receive proceeds under the policy; and (c) West Town Bank could be made a co-claimant; (3) failed to provide a facially valid conflict waiver by not identifying the potential conflict regarding division of proceeds; (4) breached the standard of care by disbursing the settlement payment without Charm’s consent or a court order; and (5) charged unreasonable attorney’s fees and potentially excessive costs.

    Bare’s above opinions are closely related to the rules of professional conduct and his ample experience and knowledge regarding the duties of communication, competence, and diligence, as well as client conflicts. This Court further noted that Bare presided over 15,000 civil and business cases during his tenure as a state court judge for 10 years. This, combined with his 17 years of experience with the rules of professional conduct, make it “more likely than not” that Bare’s “scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”

    C. Bare’s opinion is supported by sufficient facts or data

    Javed argued that Bare’s opinion is not based on sufficient facts or data because he did not independently analyze the underlying loan documents or the insurance policy.

    Bare’s opinion is based on what Javed did or did not disclose to Charm (given Charm’s version of the facts). He did not need to review the loan documents or insurance policy to form this opinion. In addition, it appeared that he did review the fee contract. Based on the scope of Bare’s opinion, the Court cannot say that his opinion was not based on sufficient facts or data merely because he did not review the loan documents or insurance policy. In sum, it is more likely than not that his above opinions were based on sufficient facts or data.

    As for Javed’s argument regarding the personal guaranty, this argument is based on disputed facts. As the parties have repeated throughout this litigation, much of this case comes down to a he-said-she-said scenario. This Court will not choose between the parties’ competing version of the facts at the admissibility stage.

    D. Bare’s opinion that the GSICA insurance payment was uncontested is not reliable

    Javed argued that Bare’s opinions on the alleged breaches of duties owed by her to Charm are not reliable.

    First, Javed argued that Bare did not explain what, if anything, would have changed about Charm’s position if she had researched Nevada or Illinois law. Second, Javed argued that she had no reason to tell Charm that she was not licensed in Nevada because Charm’s representative already knew that. In his expert report, Bare stated that lawyers have a duty to familiarize themselves with factual and legal elements of a problem and that the facts did not show that Javed familiarized herself with Nevada or Illinois law. He further stated that Javed did not communicate to Charm that she was not licensed to practice law in Nevada or Illinois.

    The Court found that Bare’s opinions are based in his experience with the rules of competence, diligence, and communication governing lawyer conduct. Javed did not contest that she did not familiarize herself with Nevada or Illinois law or that she did not tell Charm she did not practice law in Nevada or Illinois; rather, Javed is arguing that she did not need to do so because it wouldn’t have changed Charm’s position or because Charm already knew.

    Third, Javed argued that Bare incorrectly opined that the GSICA’s initial payment under the policy was uncontested and thus her fees were excessive. Bare identified no facts underlying his “understanding” that the insurance payment was uncontested, nor can the Court find any in his expert report.

    Fourth, Javed argued that Bare incorrectly opined that she disbursed payment without Charm’s knowledge or consent. Javed is merely disputing the conclusion Bare reached, which is not a reason to strike his opinion at the admissibility stage.

    E. Bare’s opinion regarding forfeiture and damages will be stricken as improper legal conclusions and opinions

    Javed argued that Bare’s opinion that her fees are subject to forfeiture is an improper interpretation of the law. The Court agreed. Expert witnesses cannot opine as to legal conclusions, i.e., an opinion on an ultimate issue of law and Bare’s statement that Javed should be required to forfeit some if not all of her
    fees is a legal conclusion.

    Held

    The Court granted in part and denied in part Javed’s motion to strike the testimony of Rob Bare.

    Key Takeaway

    The Court has broad discretion to qualify experts. Bare’s extensive experience with the rules of professional conduct make it more likely than not that his experience and knowledge will help the trier of fact determine whether Javed violated one of those rules.

    Case Details:

    Case Caption: Charm Hospitality LLC V. Javed
    Docket Number: 2:25cv282
    Court Name: United States District Court, Nevada
    Order Date: June 11, 2026
  • Emergency Medicine Expert Was Allowed to Opine on Medical Management

    Emergency Medicine Expert Was Allowed to Opine on Medical Management

    On September 27, 2022, Plaintiffs Aislyn Batista Acevedo, Ina Ruth Kessler Krugman, and minor A.D.S.B. (collectively, “Plaintiffs”) filed the instant suit on behalf of the late David Suárez (“Suárez”) against Ashford Presbyterian Hospital (“Presby”) and various other Defendants (collectively, “Defendants”).

    From September 29, 2021, until his death on October 23, 2021, Suárez was hospitalized at Presby and Doctors’ Center Hospital Bayamón (“Doctors’”). Plaintiffs alleged that, during the time that Suárez was hospitalized, Defendants failed to properly screen and treat Suárez in violation of the Emergency Medical Treatment and Labor Act (“EMTALA”).

    Plaintiffs also alleged that all Defendants are liable under Puerto Rico law for negligence and medical malpractice. To prove their claims, Plaintiffs intended to introduce at trial the expert testimony of Dr. Dainius A. Drukteinis regarding medical management. Defendants moved the Court to rule the proffered testimony of Drukteinis inadmissible.

    Emergency Medicine Expert Witness

    Dr. Dainius Albertas Drukteinis has been practicing emergency medicine for over twenty years.

    He graduated from Cornell Medical School in 2004. Drukteinis completed his emergency medicine training at NYU/Bellevue Hospital in New York City, finishing a four-year residency in 2008. He has served as an attending emergency medicine physician since 2008. He has previously served as an Assistant Professor of Emergency Medicine with the University of South Florida.

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

    Discussion by the Court

    Drukteinis provides a detailed account of his medical opinion that the physicians and staff at both Presby and Doctors’ breached the prevailing standard of care by failing to perform an MRCP or ERCP procedure, conducting poor transitions of care between medical providers during the time that Suárez was hospitalized, and transferring Suárez to another hospital facility when there was no valid reason to do so.

    A. The expert report of Drukteinis reliably identifies a standard of care applicable to Defendants

    Defendants argued that the expert witness opinion of Drukteinis is lacking in relevance and reliability because it assigned the same standards of care as to all seventeen medical practitioners sued by Plaintiffs: “notwithstanding the gamut of specialties involved in this case,” Defendants argued, “Drukteinis’ report did not identify the specific standard of care applicable to each physician, specialist, nurse practitioner, professional service corporation, or hospital.”

    Defendants’ argument is belied by the content of the report, which expressly sets forth three standards of care broadly applicable to all physicians who were responsible for the care of Suárez.

    It is therefore unclear why Defendants would argue that the expert report is deficient; indeed, the report specifically identified each Defendant physician in an account of the “chain of responsibility,” and identified three specific standards of care applicable to all of them.

    Moreover, Defendants identified no legal authority holding that, in multi-defendant medical malpractice cases, an expert report must set forth its conclusions regarding the standard of care with particularity as to each respective Defendant. Nor did Defendants explain why the fact that the conclusions adopted by Drukteinis are broadly applicable to various Defendants would render those opinions any less reliable or relevant under Rule 702.

    B. Defendants failed to identify any additional legal grounds for the exclusion of the proffered testimony of Drukteinis

    Next, Defendants moved the Court to exclude Drukteinis as a witness for “failing to provide opinions regarding causation vis-à-vis each Physician Defendant.”

    Defendants were incorrect when they claimed that an expert witness in a medical malpractice case “must” articulate an opinion regarding causation in order to testify.

    Drukteinis is not a party to this case and did not bear the burden to prove anything; instead, in civil litigation it is the Plaintiff who bears the burden to prove all three elements of a negligence claim. Accordingly, the Court declined to exclude the testimony of Drukteinis from evidence.

    Held

    The Court denied Defendants’ motion in limine seeking a ruling that the proffered testimony of Dr. Dainius Drukteinis was inadmissible.

    Key Takeaway

    Defendants fundamentally misapprehended the purpose of Rule 702 and the role of expert witnesses in federal court.

    Even assuming for the sake of argument that Defendants are correct that Drukteinis provided no opinion regarding causation in his expert witness report — a conclusion that the Court did not adopt — Defendants failed to explain why that would render his proffered testimony relating to the duty and breach elements of Plaintiffs’ negligence claim unreliable. The Court found that it would not.

    Case Details:

    Case Caption: Batista-Acevedo V. Presbyterian Community Hospital, Inc.
    Docket Number: 3:22cv1468
    Court Name: United States District Court, Puerto Rico
    Order Date: February 10, 2026
  • Expert Testimony on Legal Ethics Excluded

    Expert Testimony on Legal Ethics Excluded

    Robert I. Toussie alleged that he and his brother Michael entered into an agreement (the “Participation Agreement”) with Coastal Development, LLC (“Coastal”), an entity run by Richard Fields in 2000 to finance the development of casinos in Florida. However, Coastal/Fields promptly, and repeatedly, breached the terms of the Participation Agreement by not paying the Toussies their share of distributions from the casinos. In the early 2000s, the Toussies hired Williams & Connelly, LLP, Joseph G. Petrosinelli, David A. Forkner, Jonathan E. Pahl (“W&C Defendants”) to sue Coastal and Fields and recoup their participation interest.

    In the early 2000s, the Toussies sued Coastal/Fields twice to recoup the missed payments, and, represented by W&C, successfully recovered more than $37 million—over ten times the Toussies’ initial investment.

    In 2015, Coastal/Fields again stopped making payments owed to the Toussies, and W&C again sued Coastal/Fields on their behalf (the “2015 Coastal/Fields Litigation”), this time winning the Toussies a roughly $7.5 million arbitral award (the “Award”).

    The Toussies confronted a choice of either accepting the proposed settlement or converting the $7.5 million arbitral award to a judgment and pursuing its enforcement. Defendants advised the Toussies on how to proceed with this choice, and the Toussies chose to pursue conversion and enforcement of the arbitral award rather than settle the Coastal Litigation.

    Defendants’ advice and counsel in that regard is of what Plaintiff now complains as legal malpractice.

    To prove his malpractice claim, Plaintiff proffered Professor Ronald J. Colombo as an expert “in the field of legal ethics and the practice of law.” However, Defendants filed motions to exclude Colombo from testifying at trial.

    Law And Legal Expert Witness

    Ronald J. Colombo developed his expertise through his legal education at New York University Law School, his practical experience as an associate at Sullivan & Cromwell and then as in-house counsel at Morgan Stanley & Co. Inc., and through his scholarly work as a law professor at the Maurice A. Deane School of Law at Hofstra University (“Hofstra Law”). 

    Colombo has taught several courses at Hofstra Law, served as a faculty advisor to student organizations and academic programs for students desiring to concentrate in business law, and published at least fifteen law review articles, two books, and contributed to at least two other books.

    He has as a member of the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York in the past. His most recent law review article is Duties Regarding Duties.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Ronald Colombo’s expert testimony.

    Discussion by the Court

    W&C Defendants, Colombo argued, fell short of the rules of the New York Rules of Professional Conduct in three ways: (1) Defendants did not conduct themselves with the ordinary and reasonable skill and knowledge commonly possessed by a member of the legal profession in undertaking their representation of Plaintiff (2) failing to properly advise Plaintiff on the consequences of pursuing a strategy of judgment enforcement against Fields and Coastal rather than accepting a settlement offer and (3) terminating W&C’s representation without proper notice.

    Defendants argued that Colombo is not qualified because he has never held himself out as an expert in the practice of law or taught a legal ethics class, did not have a specialized education in legal ethics, and failed to demonstrate mastery of New York’s ethical rules in his own report. Defendants then argued that Colombo’s opinions are unreliable because they are unmoored from the underlying record, employ speculation, and misinterpret legal ethics opinions. Defendants lastly argued that Colombo’s opinions on W&C Defendants “engagement and withdrawal” are irrelevant because Plaintiff never alleged such harms in any of his complaints nor that such harms caused any damages. 

    I. Colombo Is Not A Legal Ethics Expert

    Defendants argued that Colombo (1) lacks relevant experience, (2) lacks relevant education or training, (3) has too limited ethics-related experience, and (4) lacks relevant knowledge of the ethical rules themselves, and therefore is not qualified to testify as an expert in legal ethics. The Court agreed.

    Colombo did not meet the requirements to be qualified as a legal ethics expert. His education, training, and practical experience all failed to distinguish him from other lawyers who only possess a general knowledge of legal ethics. First, Colombo is not a legal ethics expert by means of education or training. One professional responsibility course, one training for law firm associates, one training for FINRA arbitrators, and a three-year members on a local bar ethics committee constitute Colombo’s education and training in legal ethics. This is insufficient to qualify one as an expert. Plaintiff failed to show that Colombo has developed, much less maintained, an expertise in legal ethics. Colombo also cannot develop expertise through reading the case materials and treatises on legal ethics and professional responsibility.

    Second, Colombo’s professional experience is insufficient. As an associate or in house counsel he did not represent a single client in any case, much less a malpractice action, and never advised a client or peer on issues of legal ethics and professional responsibility. As a professor, Colombo has never taught a course in legal ethics, and neither of his published books or book chapters addresses legal ethics.

    His recent law article, Duties Regarding Duties, does not qualify him either. In fact, it furthers the argument that Colombo is only familiar with the world of corporate and securities law because the article instructs its readers on how to best advise members of institutional corporate boards not attorneys facing ethical legal questions or malpractice actions.

    II. Colombo’s Opinions Are Irrelevant and Unreliable

    A. Colombo’s Opinions Regarding Defendants Engagement and Withdrawal are Irrelevant

    Defendants argued that Colombo’s opinions regarding their engagement and withdrawal as the Toussies’ counsel are irrelevant as “neither the second amended complaint nor any of the Toussie’s prior two complaints even mentioned purportedly improper circumstances of W&C’s engagement or withdrawal, much less challenged them as malpractice.” 

    Plaintiff brought this action complaining of receiving harmful legal advice. Neither W&C Defendants’ retention or withdrawal caused them to provide Plaintiff with the complained of advice. Plaintiff has not shown that the conditions surrounding his retention of W&C Defendants caused them to not more vehemently advise him against pursuing judgment enforcement. Plaintiff, instead, alleged that W&C Defendants did not properly calculate “the value or collectability of the Judgment.” W&C Defendants’ withdrawal could not have caused the alleged harm, because the alleged harm was already committed and completed by the time W&C Defendants withdrew their representation of Plaintiff. Colombo therefore failed to show how the substance of W&C Defendants’ advice was caused by the conditions surrounding their retention and withdrawal.

    B. Colombo’s Opinion Regarding Defendants’ Legal Advice Is Unreliable

    The Court agreed with W&C Defendants and found Colombo’s report to be unreliable for three reasons. 

    First, Colombo did not provide a reliable methodology. Colombo focuses on the standard of the “ordinary and reasonable skill of a member of the legal profession,” but this is only the standard for determining if an attorney’s conduct was negligent. Indeed, the violation of an ethical rule alone does not constitute a breach of fiduciary duty, much less malpractice. 

    Second, Colombo made several speculative leaps throughout his report. The Court also found Colombo’s musings that Plaintiff was an “atypical” client for W&C Defendants to be speculative.

    Third, Colombo’s report conflicts with Plaintiff’s own admission. In his report, Colombo asserted that W&C Defendants failed to emphatically advise Plaintiff to settle rather than pursue judgment enforcement. In his report, however, Colombo quoted an email written by Plaintiff stating that Defendant Petrosinelli’s “response to me is, and always had been, settle.”

    In sum, the Court found that Colombo is not qualified as an expert on legal ethics and the practice of law, and that his specific opinions in this case are irrelevant, unreliable, and therefore inadmissible. 

    Held

    The Court granted the Defendants’ motions to exclude the testimony of Plaintiff’s proffered legal ethics expert, Ronald J. Colombo.

    Key Takeaway:

    Colombo’s factual errors in combination with his unreliable standard of care and use of speculation together warrant his proferred expert testimony to be stricken and deemed inadmissible in its entirety. Colombo’s report risks misleading a jury to believe that the violation of an ethical rule alone can constitute malpractice or a breach of fiduciary duty.

    Case Details:

    Case Caption: Toussie V. Williams & Connolly, LLP Et Al
    Docket Number: 1:20cv5921
    Court Name: United States District Court, New York Eastern
    Order Date: September 30, 2025
  • Physical Medicine And Rehabilitation Expert’s Report Did Not Contain Any Analysis of a Standard of Care

    Physical Medicine And Rehabilitation Expert’s Report Did Not Contain Any Analysis of a Standard of Care

    This case relates to the incarceration of Plaintiff, Nocomie Tomia Moore, in the Spokane County Jail, as well as medical care and treatment she received from Registered Nurse Tsubasa Bruce, Physician Assistant Denae Paul, and NaphCare, Inc.

    Moore brought claims for violations of Washington State’s Medical Malpractice statute. Defendants sought to exclude Plaintiff’s expert witness, Jonathan Pasma, D.O., as not meeting the required standards to offer such testimony. 

    Defendants argued that Pasma should be excluded for a number of reasons: (1) his disclosure is incomplete as he does not specifically reference any Defendant or describe in detail data or facts considered in rendering his decision; (2) his report and testimony is improperly offered as a matter of Washington law; and (3) his report and testimony do not satisfy Federal Rule of Evidence 702 or Daubert.

    Physical Medicine And Rehabilitation Expert Witness

    Jonathan Pasma received his Doctorate of Osteopathy from Pacific Northwest University of Health Sciences in 2012, and he is currently a licensed, board certified physician in Physical Medicine & Rehabilitation.

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

    Discussion by the Court

    Exclusion pursuant to Washington State Medical Malpractice Law

    In Washington, an expert must articulate what a reasonable medical professional would or would not have done, and then specify how a Defendant failed to act in that manner and show that this failure was the cause of injury.

    The Court held that Pasma’s report did not contain any sort of standard on which he based his opinion. He did not analogize the present case with any hypothetical situation, study on which he had reviewed, or real past treatment in which a patient presenting with a similar injury to Plaintiff received a different standard of care than what was provided. He offered nothing by way of his perspective in the practice of medicine that established how a specific member of the medical team at the Spokane County Jail should have reacted; he instead drew cursory conclusions.

    Exclusion based on Federal Rule of Evidence 702 and Daubert

    Defendants contended that Pasma’s report and testimony is neither reliable nor relevant, as his opinion is based on an inaccurate review of the record, he lacks the specialized knowledge of treatment of patients in a corrections setting, and he does not apply the higher degree of analysis typically found in an expert report.

    First of all, Pasma is a physiatrist and testified as his deposition that he has no experience working in an urgent care, emergency room, or corrections setting, and has not independently diagnosed a hip fracture since residency. 

    Second, the Court found Pasma’s account of the factual background of the events of this case scant and arguably incorrect.

    Basically, Pasma’s report did not contain any analysis of a standard of care and any Defendant’s specific breach. He provided a generalized conclusion that “Ms. Moore’s care, specifically timely triage, was improperly delayed 2 days, which of course implies that unnecessary pain/suffering occurred,” but offered nothing to support why this contention was true from his expert position as a physician. Moreover, he stated in his deposition that he was not asserting any violation of a standard of care by a nurse involved, nor did he want to provide a “label,” for the level of care provided by the physician’s assistant in this case.

    Held

    The Court excluded the testimony of Plaintiff’s expert witness, Jonathan Pasma.

    Key Takeaway:

    Even if the Court could look beyond the lack of reliability offered by Pasma’s report, the opinions he offers also lack the requisite relevancy such that offering them to a factfinder would be helpful. Rule 702 requires that an expert witness be vested with “scientific, technical, or other specialized knowledge” that “will assist the trier of fact” in their understanding of the evidence. If satisfied, “a witness qualified as an expert . . . may testify thereto in the form of an opinion.”

    Case Details:

    Case Caption: Nocomie Tomia Moore V. Naph Care Inc Et Al
    Docket Number: 2:22cv256
    Court Name: United States District Court, Washington Eastern
    Order Date: May 08, 2025