Expert Witness Profiler

Tag: Mitigate

  • Accounting Expert’s Testimony on Mitigation Efforts Excluded

    Accounting Expert’s Testimony on Mitigation Efforts Excluded

    This action arises out of a franchise relationship between the Plaintiffs Glenn Misiph and AASK Services, LLC, (together “Plaintiffs”), and the Franchisor Defendants, 360° Painting, LLC, Premium Service Brands, LLC, and Paul Flick (together “Defendants”).

    Plaintiffs alleged that Defendants engaged in fraudulent misrepresentation through marketing materials and Franchise Disclosure Documents (“FDD”).

    To support their claims, Plaintiffs retained Elisabeth O. da Silva, a forensic accountant and damages expert, to calculate, among other things, their damages claims.

    In her report, Da Silva addressed Plaintiffs’ lost opportunity costs, actual and expected profits, and efforts to mitigate damages. The report also evaluated the accuracy of the financial figures disclosed by 360° Painting in its 2017 FDD.

    In response, Defendants engaged Edward J. Herbst, a CPA and CFF with professional experience in both the private sector and federal law enforcement.

    Herbst provided a rebuttal to da Silva’s report assessing her premises, methodology and approach, and rationale. His report concluded that da Silva’s analysis relied on inaccurate assumptions and failed to account for the specific financial and operational realities of the franchise.

    Plaintiffs Glenn Misiph and AASK Services, LLC, and Defendants 360° Painting, LLC, Premium Service Brands, LLC, and Paul Flick filed cross motions in limine to exclude expert testimony.

    Accounting Expert Witnesses

    Elisabeth O’Toole da Silva is a certified public accountant (“CPA”) and is certified in financial forensics (“CFF”) with over 25 years of experience in forensic accounting, auditing, and economic damage calculations.

    Her professional history includes investigating complex financial disclosures and serving as an expert witness for private litigants and the Securities and Exchange Commission. Da Silva also served as a neutral arbitrator in accounting and contract disputes.

    Get the full story on challenges to Elisabeth O. da Silva’s expert opinions and testimony with an in-depth Challenge Study.

    Edward J. Herbst previously served as a managing director in the forensics practice of a private accounting firm and held a senior executive service position within the Federal Bureau of Investigation. His experience includes calculating economic losses in financial crime investigations and providing testimony in federal court regarding fraud and money laundering schemes.

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

    Discussion by the Court

    Elisabeth O. da Silva

    Defendants sought to exclude all of da Silva’s testimony due to: (1) lack of “fit” between da Silva’s calculations and Plaintiffs’ claimed damages; (2) unreliable methodology; and (3) improper legal or narrative conclusions.

    1. The “Fit” Of Damages

    Defendants argued that da Silva’s “but-for” damages testimony did not “fit” the case because Plaintiffs sought rescission damages, and da Silva’s report calculated expectation damages (lost profits).

    In her report, da Silva provided two damages methods. The first method provided a damages calculation that would restore Plaintiffs to the economic position they would have occupied absent Defendants’ representations, the so-called unwind damages theory. The second method accounts for Plaintiffs’ investment in the franchise and provided a damages calculation that would put Plaintiffs in the position they would have been in had 360° Painting fulfilled its obligations, the so-called but-for damages theory.

    Under da Silva’s but-for damages theory, she calculated the difference between Plaintiffs’ actual profit and losses and Defendants’ financial projections for gross revenue and expenses. Testimony regarding this theory is integral to proving Plaintiffs’ damages on their fraud and breach of contract claims.

    Under Massachusetts law, Plaintiffs who have proved negligent misrepresentation are entitled to recover damages including the pecuniary loss caused by their reliance on the false information.

    Defendants argued that da Silva included no evidence regarding the worth of the franchise when Misiph purchased it.

    However, even if Defendants believe da Silva’s testimony is insufficient to prove one specific metric of loss, that does not invalidate her entire testimony, particularly where that testimony is relevant to other categories of damages. Because Plaintiffs bear the burden of proving each of their requested damages, da Silva’s calculations are relevant to their various theories of recovery. 

    2. Methodology

    Defendants argued that da Silva’s testimony should be excluded because her methodology does not include actual performance data and the data on which she relied is too narrow in scope.

    Specifically, Defendants criticized: her reliance on an assumption that had Misiph continued as a franchisee, he would have operated his franchise for 10 years; her failure to clarify or quantify how franchisor support figured in her calculation; her failure to account for variables like COVID-19 or market conditions; and her failure to use internal tracking metrics in her calculations, among other criticisms. This Court found that these challenges go to the weight of the evidence, not its admissibility.

    Here, da Silva clearly described the economic damages model she used, stating that she used a “widely accepted damages methodology.” Defendants have provided no evidence to the contrary. Indeed, Plaintiffs represent that at his deposition, Herbst did not take any issue with da Silva’s methodology. Further, the ten-year term used in the report is not unsupported speculation; rather, it is rooted in the initial term of the Franchise Agreement itself. The other variables da Silva used are clearly described and supported by a detailed economic model within her report.

    3. Legal Or Narrative Conclusions

    Finally, Defendants argued that da Silva’s opinions on the consistency of the FDD and Misiph’s mitigation efforts are improper narrative or legal argument. Specifically, Defendants contended that: (1) da Silva’s opinion that the FDD provided to Misiph is inconsistent with the financial information supplied during discovery is jury argument; and (2) her use of the word “materially” and her opinions regarding Misiph’s duty to mitigate damages constituted legal argument.

    Here, da Silva’s analysis involves a mathematical reconciliation of disparate financial data sets. This Court found that an accounting of how these figures are derived and reconciled provides a technical framework that exceeds the common knowledge of a lay juror. Da Silva’s opinion would help the trier of fact to understand the evidence and/or to determine a fact in issue. It is therefore admissible.

    In her testimony, da Silva did not purport to render an opinion that Defendants knowingly made a false representation of material fact to induce Misiph to enter the franchise agreement. Rather, she sought to opine that her calculations differed significantly from the figures stated in the FDD.

    This Court did, however, find that da Silva’s opinion that “Misiph has a duty to mitigate damages and did, in fact, take reasonable, non-burdensome steps to avoid losses” must be excluded. While accountants may calculate any offset of earned income against claimed losses, they are not qualified to offer a legal conclusion regarding what the law requires of a Plaintiff’s mitigation efforts. Similarly, an expert accountant may not opine on the reasonableness of a Plaintiff’s mitigation efforts as this is a quintessential jury question. Rather, these facts may be offered to the jury, but not by da Silva in the form of expert opinion. The jury may then reach its own conclusion.

    Edward J. Herbst

    Plaintiffs sought to exclude Herbst’s testimony, alleging that he is unqualified to offer damages opinions, his methodology is unreliable, and his analysis rests on inaccurate factual data.

    1. Qualifications

    Plaintiffs argued that Herbst is unqualified because he has never testified as an expert and has admitted to lacking the competence to perform an independent damages model or business valuation.

    As described above, Herbst, a CPA and CFF, has extensive experience in financial investigations. His lack of history as a testifying expert or prior experience in franchise disputes and business valuation does not disqualify him from serving as a rebuttal expert. An expert’s training in a general field, in this case forensic accounting, is often sufficient to permit testimony on specialized sub-topics within that field.

    2. Methodology

    Plaintiffs further challenged Herbst’s methodology, characterizing it as a subjective “armchair” critique that lacked an independent analytical framework.

    Along with analyzing da Silva’s report and its accompanying premises, methodology, and findings, Herbst’s methodology consisted of reviewing documents such as the complaint, Defendants’ amended counterclaims, portions of deposition transcripts, and copies of Misiph’s 2019-2023 tax returns. Then, Herbst applied his forensic accounting background to identify what he characterized as incorrect or unstandardized variables in da Silva’s calculations.

    His report indicated that he was looking for foundational support for da Silva’s opinion within the bounds of accounting principles. The fact that he did not perform independent calculations to show exactly how a change in variables would move the final damages number may diminish the weight of his testimony, but it does not make his methodology inherently unreliable. Accordingly, the Court held that Herbst’s testimony is not excludable on this basis.

    3. Data Accuracy

    Finally, Plaintiffs argued that Herbst’s analysis is based on incomplete information. Specifically, Plaintiffs alleged that Herbst reviewed only portions of Misiph’s and Flick’s depositions, which led Herbst to make incorrect assumptions and effected his analysis.

    In a deposition, Herbst acknowledged certain errors, such as his misclassification of commissions which were actually fixed franchise fees. These admissions and other alleged inaccuracies go to the weight and credibility of his testimony.

    A jury is capable of determining whether Herbst’s critique remains valid despite these errors or if his misunderstanding of the underlying data renders his conclusions unpersuasive.

    Held

    • The Court granted in part and denied in part Defendants’ motion to exclude all of Elisabeth O. da Silva’s testimony.
    • The Court denied Plaintiffs’ motion to exclude Edward Herbst’s testimony.

    Key Takeaway

    The reliability of an expert’s methodology “is a flexible inquiry, allowing for consideration of factors like whether the expert’s methodology has been objectively tested; whether it has been subjected to peer review and publication; the technique’s known or potential error rate; and whether the expert’s technique has been generally accepted within the relevant industry.”

    An expert’s failure to include specific variables in a complex financial model does not render the testimony inadmissible so long as the underlying assumptions are those that experts make with some frequency.

    Case Details:

    Case Caption: Misiph V. 360 Painting, LLC
    Docket Number: 1:22cv11778
    Court Name: United States District Court, Massachusetts
    Order Date: March 03, 2026
  • Economics Expert’s Updated Damages Calculations Admitted

    Economics Expert’s Updated Damages Calculations Admitted

    Plaintiff Misty Blanchette Porter was previously employed as a physician in the Reproductive Endocrinology and Infertility (“REI”) Division within Dartmouth Health’s Department of Obstetrics and Gynecology (“OB/GYN”).

    After Dartmouth Health made the decision to shut down the REI Division entirely and to terminate all three physicians employed therein—including Porter—Porter filed suit against Dartmouth Health citing disability discrimination.

    Dartmouth Health argued that the testimony of Porter’s damages expert, Dr. Robert L. Bancroft, should have been excluded due to untimely disclosure under Rule 26.

    Economics Expert Witness

    Robert L. Bancroft holds a bachelor’s degree in economics from the University of Vermont (“UVM”); a Master of Science in agricultural economics from UVM; and a Ph.D. in agricultural economics from Purdue University.

    From June 1979 until August 1981, Bancroft worked for the United States Department of Agriculture to develop an econometric forecasting model to forecast farmers’ participation in certain government programs and to provide testimony and research to the U.S. House of Representatives. Next, Bancroft began work as an assistant professor in the Department of Agriculture and Resource Economics—later renamed the Department of Community Development and Applied Economics—at the University of Vermont in August 1981. Bancroft continued as an assistant professor of economics until 1991, when he became an adjunct professor. He worked as an adjunct professor of economics until 1996.

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

    Discussion by the Court

    Rule 26

    Dartmouth Health contended that the Court erred by admitting testimony and exhibits offered by Porter’s expert damages witness, Bancroft, because Porter failed to timely disclose several of his expert opinions under Rule 26.

    The Court found that the timing of the disclosure of Bancroft’s March 19, 2025, supplemental report did not warrant a new trial. The March 2025 supplemental report was a direct response to defense counsel’s cross-examination of Bancroft at a hearing on Dartmouth Health’s motion to exclude Bancroft from testifying as an expert witness at trial.

    Cross-examination elicited that Bancroft was unaware of certain information relevant to his calculations. Bancroft subsequently updated his report on March 19 to incorporate this new information. Dartmouth Health plainly knew this information before Bancroft issued his March 19 report, as defense counsel raised the issue at the evidentiary hearing. 

    Moreover, Bancroft did not change the substance of his opinion. He used the same methodology in his March supplemental report as in his prior reports, changing only the inputs to produce updated damages calculations.

    The Court did not share Defendants’ view that Bancroft issued his corrective March 2025 report because his testimony at the March 12 evidentiary hearing revealed that his August 2024 report “had not included key facts and assumptions . . . such as Porter’s promotion to full professor in July 2023 and her most recent earnings from UVMMC at a higher rate of pay than what Bancroft had projected.”

    Rule 37

    Even if the disclosures were untimely, admitting Bancroft’s testimony was not error because the disclosures were substantially justified or harmless under Rule 37.

    The first factor—the willfulness of the non-compliance regarding the March 2025 report and the reason for the noncompliance—did not weigh definitively in either party’s favor. Porter knew well before March 2025 that she had received a $7,698 tuition credit for her son’s undergraduate education at UVM in 2019, and Bancroft could have included that information in his August 2024 report. On the other hand, Dartmouth Health knew that it had approved salary freezes in 2020 and 2021, and Dartmouth Health did not allege that Porter or Porter’s expert had that information until March 2025.

    The efficacy of lesser sanctions and the possibility of a continuance weigh against excluding Bancroft’s testimony. Dartmouth Health’s proposed alternative—introducing its own expert witness to rebut Bancroft’s supplemental report—was simply not feasible only four days before a three-week trial.

    The duration of noncompliance factor was inconclusive. Although Porter was aware of some information that impacted her expert’s damages calculations well in advance of the March 2025 report, other information was only in the possession, custody, or control of Dartmouth Health until the March evidentiary hearing. Bancroft submitted his updated report one week after the evidentiary hearing.

    The Court is unaware of any previous warning to Porter that an untimely supplemental expert report could result in exclusion of the expert witness.

    Moreover, Dartmouth Health already had a significant amount of the updated information Bancroft relied on for his March 2025 supplemental report. It is difficult to conceive how admitting the March 2025 report, or Bancroft’s testimony consistent with that report, prejudiced Dartmouth Health given that the report estimated substantially lower damages figures than any of Bancroft’s previous reports.

    Held

    The Court held that the relevant factors weighed against excluding Robert Bancroft’s testimony.

    Key Takeaway:

    Without Bancroft’s testimony, Porter would have been severely disadvantaged in quantifying her claimed economic damages. Such a sanction would have been disproportionate to the alleged noncompliance given that the late disclosure had a reasonable basis; Bancroft’s methodology did not change from one report to the next, and Bancroft’s final report substantially reduced Porter’s estimated damages.

    Case Details:

    Case Caption: Blanchette Porter V. Dartmouth Hitchcock Medical Center
    Docket Number: 2:17cv194
    Court Name: United States District Court, Vermont
    Order Date: November 26, 2025
  • Court rejects the damages calculation of Economic Damages Expert Witness but allows him to opine on available employment opportunities for the Plaintiff in Employment Discrimination Suit

    Court rejects the damages calculation of Economic Damages Expert Witness but allows him to opine on available employment opportunities for the Plaintiff in Employment Discrimination Suit

    Plaintiff Rose Kochka had brought claims against West Penn Allegheny Health System Inc. (“WPAHS”) under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621, et seq., Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §§ 951, et seq., and the Pittsburgh City Code, Article 5 §§ 651.01 et seq. These claims arose from Kochka’s past employment with WPAHS. In summary, Kochka contended that WPAHS had discriminated against her based on her age and had retaliated against her by terminating her for reporting alleged discrimination. The Court addressed seven motions in limine (six filed by Kochka and one filed by WPAHS), including Kochka’s Daubert motion to Preclude and/or Limit the testimony of WPAHS’ damages and mitigation expert Chad Staller.

    Economic Damages Expert Witness

    Chad L. Staller JD, MBA, MAC, CVA serves as the president of the Center for Forensic Economic Studies and holds extensive experience collaborating with both plaintiff and defense counsel across various civil cases. His expertise involves quantifying losses sustained by diverse plaintiff profiles, including union members, government employees, business proprietors, and injured children. Staller specializes in evaluating claims related to employment discrimination, encompassing calculations of back-pay, front-pay damages, and lost benefits. Additionally, he frequently provides consultation on commercial issues, analyzing claims associated with lost profits and business interruptions. Staller has a substantial record of testifying in jury trials, bench trials, and arbitrations within state and federal court settings.

    Discussion by the Court

    Kochka attempted to limit Andrea Campbell and Morgan Henderson’s testimony about their interactions with her and Beverly Feragotti, Kochka’s direct supervisor, claiming their involvement wasn’t relevant to her termination. However, the Court deemed their testimony crucial in understanding the reasons behind Kochka’s dismissal.

    Kochka also tried to prevent Michael Weber, a Workforce Relations Consultant, from testifying, citing his testimony as hearsay based on a complaint from Campbell. The Court agreed, barring Weber’s testimony due to its hearsay nature.

    Regarding Beverly Feragotti’s termination, Kochka argued against comparing her case to Feragotti’s, stating they were terminated by different decision-makers. WPAHS disagreed, asserting that despite differing roles, both faced similar performance standards and improvement plans. The Court confirmed their distinct positions and noted differences in their terminations, emphasizing separate decision-making groups involved in each case.

    Ultimately, the Court highlighted the dissimilarities in roles, termination circumstances, and decision-makers, ruling Feragotti an unsuitable comparison for Kochka’s case.

    Kochka filed a motion to preclude Chad Staller’s opinions, citing Rule 702 and the Daubert standard, alleging Staller’s methodology and data were unreliable. Specifically, Kochka objected to Staller’s use of Department of Labor statistics for calculating economic damages, his omission of adverse tax consequences, his qualifications and method for identifying employment opportunities for Kochka, and his reliance on the Pennsylvania Office of Unemployment Compensation to assess Kochka’s mitigation of damages. WPAHS defended Staller’s opinions, asserting their appropriateness in each aspect contested by Kochka.

    The Court had agreed with Kochka regarding the unreliability of Chad Staller’s reliance on Bureau of Labor statistics to determine the duration of loss, thus rendering his calculation of economic damages based solely on these statistics unreliable as well. Staller’s reliance on the “Worker Displacement: 2019-2021” survey from the U.S. Census Bureau, which defined “Displaced Workers” as those affected by specific job loss scenarios, was found problematic.

    Although Staller acknowledged the dissimilarity between Kochka’s employment separation and the survey’s definition of “Displaced Worker,” he justified the use of this data as a proxy due to the lack of a specific dataset for terminated employees like Kochka. The Court concurred with Kochka’s argument that as Kochka was terminated and did not align with the definition of a “Displaced Worker,” Staller’s reliance on data regarding non-terminated workers was inappropriate for determining the duration of loss for a terminated employee. Staller failed to provide a basis for using data applicable to non-terminated workers to assess a worker terminated for cause.

    WPAHS attempted to argue for Staller’s opinion by asserting a seven-year mitigation period for Kochka from her separation in November 2019, suggesting that Staller’s analysis applied a three-year period from the time of his report. However, the Court rejected WPAHS’s argument, noting the misinterpretation of Kochka’s position and the lack of support for WPAHS’s claim in Staller’s report.

    Staller’s reliance on Bureau of Labor statistics projecting a three-year period for displaced workers to achieve prior earnings parity contradicted WPAHS’s claim of a seven-year mitigation period. Staller’s report explicitly calculated the three-year period not from the May 2023 report date, as WPAHS asserted, but from January 1, 2024, the presumed date when Kochka would secure mitigation employment.

    Consequently, the Court excluded Staller’s opinion on the duration of loss based on the “Worker Displacement: 2019-2021” survey and a three-year period. Staller’s economic damages calculation relying solely on Bureau of Labor statistics was also deemed unreliable. However, if Staller’s opinion on the duration of loss was supported by the human capital model (uncontested by Kochka), he could testify regarding his damages calculation during the trial.

    The Court disagreed with Kochka’s contention that Chad Staller’s decision not to calculate potential adverse tax implications affected the clarity of his damages opinion or prejudiced Kochka. The Court clarified that it’s the responsibility of the district court, not the jury, to determine any additional compensation to offset the increased tax burden resulting from a back-pay award.

    Given that the jury wouldn’t deliberate on this issue, the Court ruled that Staller’s omission of adverse tax calculations wouldn’t confuse the jury or cause prejudice to Kochka. As a result, this aspect of Kochka’s motion was denied by the Court.

    The Court dismissed Kochka’s objection regarding Chad Staller’s qualifications and methodology for assessing available employment opportunities for Kochka. Despite Kochka’s challenge to Staller’s qualifications by highlighting his lack of vocational expertise and certification, a review of Staller’s curriculum vitae affirmed his qualification to provide an opinion in this regard.

    Moreover, the Court found Staller’s methodology, utilizing employment listings from Forensic JobStats, to be reliable. Staller’s methodology was outlined in detail in his report, involving specific criteria such as keyword searches for relevant job titles and locations, along with subsequent exclusions based on these results after his deposition. The Court determined that Kochka’s objections were more related to the results of the methodology and Staller’s analysis rather than the methodology itself.

    As WPAHS argued, the Court believed that Kochka’s concerns could be appropriately addressed through cross-examination and did not serve as grounds to exclude Staller’s opinions.

    The Court agreed with Kochka’s objection concerning Chad Staller’s reliance on Pennsylvania’s unemployment compensation standards to assess Kochka’s mitigation efforts, deeming it confusing and inapplicable to this case. Staller’s reference to the Pennsylvania Office of Unemployment Compensation’s criteria for assessing job search diligence was found irrelevant as Kochka wasn’t seeking unemployment compensation in this lawsuit.

    Despite WPAHS attempting to minimize Staller’s reliance on these standards, the Court found that Staller explicitly referenced and applied these standards to Kochka in his assessment. Staller’s report indicated that Kochka had not met the standard outlined by the Pennsylvania Office of Unemployment Compensation, forming the basis of Staller’s opinion that Kochka failed to conduct a reasonable job search and mitigate her damages.

    As a result, the Court excluded aspects of Staller’s opinion that linked Kochka’s job search and mitigation efforts to the requirements of the Pennsylvania Office of Unemployment Compensation. However, Staller was permitted to testify about Kochka’s job search endeavors and the available employment opportunities.

    In Kochka’s motion to exclude evidence of her failure to mitigate damages, her main contention was the exclusion of Chad Staller’s opinion testimony, the sole evidence, according to Kochka, that WPAHS possessed regarding mitigation. Kochka argued that since Staller’s testimony should be excluded, WPAHS lacked sufficient evidence to meet its burden, thus should be barred from arguing that Kochka failed to mitigate damages.

    However, the Court denied Kochka’s motion, finding her reasoning insufficient. The Court concluded that Kochka hadn’t provided compelling reasons to prevent WPAHS from presenting evidence concerning her efforts to mitigate damages. Consequently, WPAHS was not precluded from introducing such evidence or making arguments regarding Kochka’s mitigation efforts.

    Kochka moved to preclude deposition testimony that had been designated by WPAHS, specifically related to Andrea Campbell, who was listed as witness to be called on both Kochka’s and WPAHS’ witness lists. Since Campbell was set to provide live testimony, the Court granted Kochka’s motion to preclude the deposition testimony without prejudice.

    WPAHS moved to exclude evidence and testimony involving Julie Stuck, a Labor Relations Consultant, and drafts of Kochka’s termination letter. Stuck was consulted for an HR perspective on the termination. WPAHS argued that these pieces of evidence held limited probative value since Stuck wasn’t a decision-maker and the initial and final termination letters aligned. Additionally, WPAHS expressed concern about potential unfair prejudice due to a statement by Stuck mentioning an EEOC claim.

    However, the Court disagreed with WPAHS, affirming the significant probative value of the draft termination letters and communications involving Stuck. The Court ruled that the EEOC reference by Stuck, while potentially prejudicial, didn’t substantially outweigh its probative value concerning the termination process. Therefore, the Court allowed the inclusion of this evidence and testimony.

    WPAHS requested permission to amend the Joint Exhibit List, adding Exhibits 2, 4, 5, 6, and 7, previously attached to its Motion in Limine. WPAHS sought admission of all communications related to the topic, not initially included in the parties’ Joint Exhibit List. Kochka didn’t oppose the inclusion of Exhibits 2, 5, 6, and 7 but objected to Exhibit 4.

    Kochka argued against Exhibit 4’s relevance, stating that the email text was duplicated in other emails, and the 27 pages of attachments lacked independent relevance. Kochka also pointed out the absence of evidence showing Stuck’s review or reliance on the attachment contents.

    The Court approved the motion partially, allowing admission of Exhibits 2, 5, 6, and 7, unopposed by Kochka. However, the Court deferred its ruling on Exhibit 4, which was opposed, pending further consideration.

    To sum it up, the Court granted in part and denied in part WPAS’ motion to exclude evidence and testimony involving Julie Stuck.

    Held

    • Plaintiff’s Motion in Limine #1 – To Limit the Testimony of Andrea Campbell and Morgan Henderson was denied by the Court.
    • Plaintiff’s Motion in Limine #2 – To Preclude the Testimony of Michael Weber was granted by the Court.
    •  Plaintiff’s Motion in Limine #3 – To Preclude Evidence or Argument Regarding Beverly Feragotti’s Termination was granted by the Court.
    • The Plaintiff’s Daubert Motion aimed at limiting or precluding Chad Staller’s testimony has been partially granted and partially denied. Firstly, Staller is barred from testifying regarding his opinion on the duration of loss if it relies on the “Worker Displacement: 2019-2021” survey. Additionally, if Staller’s calculation of economic damages is solely based on Bureau of Labor statistics, it is deemed unreliable and excluded. However, if his opinion on the duration of loss aligns with support from the human capital model (not challenged by Kochka), Staller is permitted to testify about his damages calculation during the trial. Secondly, Staller is not allowed to testify that the job search requirements set by the Pennsylvania Office of Unemployment Compensation represent the standard for Kochka’s reasonable and diligent job search or mitigation of damages. Nor can he testify that Kochka lacked reasonable diligence by failing to meet these requirements. Nonetheless, Staller retains the ability to testify regarding Ms. Kochka’s job search efforts and the available employment opportunities.
    • Plaintiff’s Motion in Limine #4 – To Preclude Evidence or Argument that Plaintiff Failed to Mitigate Her Damages was denied by the Court.
    •  Plaintiffs’ Motion in Limine #5 – To Preclude Defendant’s Discovery Designations was granted without prejudice by the Court.
    •  Defendant’s Motion in Limine #1 – To Exclude Evidence and Testimony Relating to Julie Stuck and Drafts of Plaintiff’s Termination Letter was granted in part and denied in part by the Court.

    Key Takeaways

    The Court excluded testimony from the Defendant’s expert witness Chad Staller regarding the duration of the Plaintiff’s loss of earnings, to the extent it relied solely on Bureau of Labor statistics about displaced workers. The Court found that since the Plaintiff was terminated for cause, rather than displaced, the statistics were not sufficiently reliable. The Court also excluded Staller’s opinions applying the standard for unemployment compensation in Pennsylvania to determine if the Plaintiff failed to mitigate damages. The Court found this would confuse the jury since the Plaintiff was not actually seeking unemployment compensation. However, the Court allowed Staller to testify about the Plaintiff’s job search efforts and employment opportunities available to her. Additionally, the Court rejected a challenge to Staller’s failure to provide calculations for adverse tax consequences, finding this issue was not for the jury. Overall, the Court demonstrated a willingness to closely scrutinize the reliability of the Defendant’s expert’s methodology and data underpinning his opinions about mitigation and damages, while still allowing him to testify on certain relevant issues like job search efforts. The Court applied the Daubert principles to ensure the expert’s testimony would assist rather than confuse or mislead the jury.