Expert Witness Profiler

Tag: Motion to Exclude

  • Statistics Expert’s Scientific Analysis Excluded

    Statistics Expert’s Scientific Analysis Excluded

    This litigation arises from Plaintiff Raymond Flanks’ (“Plaintiff”) wrongful conviction for first-degree murder in 1985. Plaintiff alleged that the Orleans Parish District Attorney’s Office (“OPDA”) secured his wrongful conviction in violation of his constitutional rights by withholding material exculpatory evidence.

    Dr. Tumulesh Solanky is a statistician retained by Defendant Jason Williams to to conduct a scientific analysis of the alleged Brady violations and assess the reasonable conclusions that can be drawn regarding the frequency of such cases in Orleans Parish. Plaintiff filed a motion to exclude the testimony of Solanky.

    Plaintiff argued that Solanky’s proposed testimony should be excluded because: (1) the ratio of Brady violations to overall OPDA prosecution data is not an issue the jury will need to decide; (2) even if it were, a jury would not need expert opinion testimony to compare those numbers; (3) Solanky employed an unreliable methodology; (4) Solanky excluded certain cases, skewing the results; (5) Solanky has no data whatsoever to which he compares the numbers in New Orleans; and (6) his opinions are far outside the scope of his expertise as a statistician.

    Statistics Expert Witness

    Tumulesh K. Solanky is a professor and chair of the Departments of Mathematics and Physics at the University of New Orleans (UNO). He is a professor and chair of the Departments of Mathematics and Physics at the University of New Orleans (UNO). He has been teaching statistics and mathematics at UNO since August 1990.

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

    Discussion by the Court

    Solanky reviewed OPDA annual reports providing information about the numbers of cases screened, accepted, and tried over a period of 12 to 15 years. Solanky found that the average number of cases accepted for prosecution by OPDA annually was approximately 7,084. Extrapolating from the available data, Solanky found that between 1974 and 1985, there were approximately 522 trials and 5,175 guilty pleas on average each year. Thus, the total average number of combined trials and guilty pleas per year was approximately 5,698.

    The statistics provided by Solanky are not irrelevant. It is ultimately Plaintiff’s burden to “provide the context necessary to evaluate whether an alleged department-wide pattern is so obvious as to impart constructive notice.” Plaintiff intended to argue there was a sufficient number of Brady violations to put Connick on notice of a pattern, while Williams planned to argue there was not a sufficient pattern given the number of cases prosecuted by OPDA each year. Solanky used the linear regression model to extrapolate data for missing years.

    The jury can easily compare the total number of cases tried each year with the number of Brady violations to determine whether the “alleged department-wide pattern is so obvious as to impart constructive notice.” The jury does not need an expert to tell them that the percentages are not large. Solanky’s opinions that Brady violations were “exceptionally rare” or “exceedingly rare and very infrequent” are nothing more than argument. Allowing Solanky to testify to these issues would supplant the role of counsel in making argument at trial and the role of the jury in interpreting the evidence. The Court agreed with Plaintiff that a more appropriate denominator would be the number of cases with an appeal or post-conviction proceeding. Solanky’s report did not provide any data on that issue.

    Held

    The Court granted in part and denied in part Plaintiff’s motion to exclude the testimony of Dr. Tumulesh Solanky.

    Key Takeaway

    If the parties are unable to reach a stipulation on the average number of cases prosecuted and tried each year by OPDA, Solanky may testify to his use of the linear regression model to extrapolate this data. However, Solanky’s assertions that Brady violations were “exceptionally rare” will not assist the jury in understanding the evidence or determining a fact in issue.

    Please refer to the blog previously published about this case:

    Vocational Evaluation Expert Allowed to Opine on Lost Earning Capacity

    Legal Expert Was Barred From Opining on Good Time Credits

    Police Practices Expert’s Testimony on Eyewitness Identifications Admitted

    Case Details:

    Case Caption: Flanks V. City of New Orleans
    Docket Number: 2:23cv6897
    Court Name: United States District Court, Louisiana Eastern
    Order Date: December 30, 2025
  • Metallurgy Expert Allowed to Opine on Foreign Object Debris

    Metallurgy Expert Allowed to Opine on Foreign Object Debris

    This case arises from an accident involving a Robinson R44 II helicopter, registration N442VB (“Helicopter”), that occurred on the evening of December 30, 2021, in Levy County, Florida. The Helicopter was being flown at night by the owner-pilot, Ronald Hicks (“Pilot Hicks”), from a local friend’s residence to his private property. At the time of the accident, Pilot Hicks had less than ten hours of night flight experience in helicopters and was not certified under Instrument Flight Rules (“IFR”). Mr. Hicks, Shelly Kate Hicks, and their two children sustained fatal injuries.

    Plaintiffs filed a Daubert motion to exclude and/or limit the testimony of Defendant’s metallurgical expert Dr. Gary J. Fowler.

    Metallurgy Expert Witness

    Dr. Gary Jefferson Fowler is a registered professional metallurgical engineer with nearly fifty years of experience in metallurgy, materials science, and failure analysis.

    He holds a B.S., M.S., and Ph.D. (1976) in engineering fields related to metallurgy and materials science from the University of California, Los Angeles (UCLA).

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

    Discussion by the Court

    Qualifications

    To begin with, Plaintiffs argued that Fowler opined regarding what they characterize as “accident reconstruction and piloting issues” despite being unqualified to do so.

    The Court has reviewed Fowler’s expert report and finds that his conclusions are squarely within the realm of his expertise as a metallurgist. Plaintiffs may vigorously cross-examine Fowler’s methodology and conclusions at trial, but they have not demonstrated exclusion is warranted on these grounds.

    Methodology

    Second, Plaintiffs argued that Fowler relied on insufficient facts or data and his methodology was unreliable. Plaintiffs argued that Fowler did not properly substantiate several opinions, including those regarding foreign object debris “FOD,” that the marks on the crankshaft were “smears,” not “gouges,” and that the helicopter was under power at the time of the crash.

    Whether Fowler “selected the best data set to use . . . is a question for the jury, not the judge.” Plaintiffs are certainly free to cross-examine Fowler regarding perceived deficiencies in his data or conclusions, but they have not demonstrated exclusion is warranted.

    Substantial Similarity Doctrine

    Plaintiffs also claimed that the substantial similarity doctrine warrants exclusion of Fowler’s comparison of the instant crash with other crashes. But the substantial similarity doctrine “applies when one party seeks to admit prior accidents or occurrences involving the opposing party” to demonstrate, for example, notice, lack of safety for intended uses, strength of a product, or causation.

    Plaintiffs did not include this standard or addressed why it might apply here, where Defendant, not Plaintiffs, seeks to admit similar crashes. Plaintiffs’ application is limited to arguing that Fowler is “seeking to compare the instant crash to another crash that is dissimilar while seeking to argue that the causes of each crash are similar.” But this is not the import of Fowler’s comparisons. Fowler used elements of the other crashes as discrete points of reference for his metallurgical opinions, for example, that “if a crankshaft gear bolt is improperly installed and suffered from lack of torque, like in the New Jersey accident, then the dowel fracture would occur soon after the overhaul . . . or manufacture,” and that “crashes involving engines under power will exhibit similar signatures to those seen here.” Again, Plaintiffs may cross-examine Fowler regarding perceived deficiencies in these comparisons, but they have not demonstrated exclusion is warranted.

    Assistance to the Trier of Fact

    Plaintiffs argued that Fowler’s opinions are cumulative, prejudicial, and will not assist the trier of fact. Plaintiffs claimed that Fowler’s testimony will be cumulative when combined with Defendant’s other experts Russo and Knuteson. The Court has already agreed that Russo’s testimony will be needlessly cumulative and has granted Plaintiffs’ motion to exclude on those grounds. Further, the Court has also agreed that, at this juncture, Knuteson’s testimony will also be needlessly cumulative, and has granted Plaintiffs’ motion to exclude on those grounds without prejudice for Defendant to renew its reponse.

    Finally, Plaintiffs requested that Fowler be bound to the opinions contained within his expert report. The Court absolutely agreed that no expert may offer opinions not within their expert report.

    Held

    The Court denied Plaintiffs’ Daubert motion to exclude and/or limit Defendant’s metallurgical expert Dr. Gary Fowler.

    Key Takeaway

    The Court recognizes and appreciates the importance of its gatekeeping function. It routinely grants Daubert motions when appropriate. In this case, the Court has reviewed Fowler’s expert report and finds that his conclusions are squarely within the realm of his expertise as a metallurgist.

    Please refer to the blogs previously published about this case:

    Accident Reconstruction Expert’s Meteorological Opinions Excluded

    Avionics Expert Allowed to Opine on Engine Failure

    Piloting Expert Was Allowed to Opine on Spatial Disorientation

    Case Details:

    Case Caption: Law V. Avco Corporation
    Docket Number: 1:24cv3
    Court Name: United States District Court for the Northern District of Florida, Gainesville Division
    Order Date: November 03, 2025
  • Piloting Expert Was Allowed to Opine on Spatial Disorientation

    Piloting Expert Was Allowed to Opine on Spatial Disorientation

    This case arises from an accident involving a Robinson R44 II helicopter, registration N442VB (“Helicopter”), that occurred on the evening of December 30, 2021, in Levy County, Florida. The Helicopter was being flown at night by the owner-pilot, Ronald Hicks (“Pilot Hicks”), from a local friend’s residence to his private property. At the time of the accident, Pilot Hicks had less than ten hours of night flight experience in helicopters and was not certified under Instrument Flight Rules (“IFR”). Mr. Hicks, Shelly Kate Hicks, and their two children sustained fatal injuries.

    Plaintiffs filed a Daubert motion to exclude and/or limit the testimony of Defendant’s piloting expert Timothy Tucker.

    Piloting Expert Witness

    Timothy C. Tucker has 55 years’ experience as a military and civilian helicopter pilot, instructor and evaluator in both visual and instrument flight
    techniques.

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

    Discussion by the Court

    Qualification

    Plaintiffs argud that Tucker opined regarding “meteorology, engine failure, accident reconstruction, and human factors issues” despite being unqualified to do so.

    The Court has reviewed Tucker’s expert report and found that he is qualified as a “piloting” expert and may opine from the piloting perspective. However, Tucker was not qualified as a metallurgist or accident reconstructionist, and his report did not indicate that he relied upon Defendant’s metallurgy or accident reconstruction experts when forming his conclusions.

    While Tucker may offer his “piloting” opinions, he may neither (1) repeat the conclusions of Defendant’s metallurgy and accident reconstruction experts, nor (2) say they are consistent with his opinions. Moreover, Tucker is strictly limited to offering only the “piloting” opinions outlined in his report. Defendant represented that Tucker will testify to two main opinions, that Hicks “experienced spatial disorientation and lost control” of the helicopter, and that the evidence in this case is inconsistent with an attempted autorotation.

    Methodology

    Second, Plaintiffs argued that Tucker’s methodology was unreliable. Plaintiffs took issue with Tucker’s reliance on flight path ADS-B data for his analysis and the fact that his opinion purportedly conflicts with other witness testimony regarding the crash.

    While Plaintiffs are free to cross-examine Tucker regarding perceived deficiencies in his data or conclusions, they have not demonstrated exclusion is warranted.

    Third, Plaintiffs argued that Tucker’s opinion will be cumulative. As explained above, the Court found that Tucker is a qualified “piloting” expert and may opine from that unique perspective. To the extent Tucker is offering the “piloting” opinions in his report, his testimony is not cumulative. However, the Court reiterates that it will not tolerate Tucker offering other experts’ testimony or saying it comports with his own. This will be strictly enforced.

    Finally, Plaintiffs requested that Tucker be bound to the opinions contained within his expert report. The Court absolutely agreed that no expert may offer opinions not within their expert report.

    Held

    The Court denied the Plaintiffs’ Daubert motion to exclude and/or limit the testimony of Defendant’s expert Timothy Tucker.

    Key Takeaway

    Whether an expert selected the best data set to use is a question for the jury, not the judge. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.

    Please refer to the blogs previously published about this case:

    Accident Reconstruction Expert’s Meteorological Opinions Excluded

    Avionics Expert Allowed to Opine on Engine Failure

    Case Details:

    Case Caption: Law V. Avco Corporation
    Docket Number: 1:24cv3
    Court Name: United States District Court for the Northern District of Florida, Gainesville Division
    Order Date: November 05, 2025
  • Mechanical Engineering Expert’s Testimony on Patents Admitted

    Mechanical Engineering Expert’s Testimony on Patents Admitted

    Plaintiffs Spartan Composites, LLC d/b/a FODS and Spartan Mat, LLC accused Defendant Signature Systems Group, LLC of misappropriating trade secrets after Signature allegedly obtained FODS’ trade secret on how to design, manufacture, market and distribute the FODS trackout mat.

    Plaintiffs retained Dr. William S. Howard (“Dr. Howard”), a mechanical and electrical engineer and the owner and president of Stability Technology, Inc., to opine on the existence of two trade secrets: (a) the manner in which Plaintiffs’ FODS Trackout mat is constructed; and (b) the combination of the shape, size, structure, composition, and placement of certain mechanisms in Plaintiffs’ FODS Trackout mat.

    Plaintiffs responded that Howard presented a sufficient analysis of available patents and of the potential public exposure of Plaintiffs’ alleged trade secrets.

    Defendant filed a motion to strike and exclude Howard’s statements contained in his expert report under Federal Rule of Evidence 702.

    Mechanical Engineering Expert Witness

    Dr. William Stamps Howard holds multiple reputable degrees in and related to the subject of mechanical engineering, is a practicing design engineer specializing in industrial machinery, and is a seasoned mechanical and electrical engineer with decades of experience.

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

    Discussion by the Court

    I. Admissibility under Rule 702

    A. Howard is qualified.

    Defendant did not challenge Howard’s credentials directly but argued that the expert incorrectly applied his experience by ignoring and selectively utilizing pieces of evidence to arrive at his conclusions. The Court concluded that Howard’s background, certifications, and current practices establish that he is qualified under Rule 702 to provide opinions on trade secrets relating to mechanical engineering.

    B. Howard’s specialized knowledge will help the trier of fact.

    The Court found that Howard’s testimony may assist the jury by explaining why he believes Plaintiffs are in possession of multiple “trade secrets.”

    This issue involves consideration of a variety of technical and legal factors extending far beyond one’s innate “common sense and knowledge,” and Howard’s opinion is admissible under Rule 702 because it attempted to bridge that gap with his unique specialization.

    C. Howard’s testimony is based on sufficient facts or data.

    Howard relied upon in-person analysis, interviews with designers, consideration of the mechanical engineering design of the relevant equipment, and review of patents and legal literature on trade secrets to arrive at his conclusions.

    Defendant argued that Howard’s testimony is critically flawed because it failed to analyze the effect that certain patents have on the existence of Plaintiffs’ alleged trade secrets.

    Plaintiffs responded that Howard reviewed a sufficient number of patents and addressed the issue of public exposure at various points in his report.

    The Court found that Defendant’s challenge to the depth or scope of Howard’s consideration spoke to the weight of the testimony, not its admissibility. In this context, the Court was convinced that Howard’s testimony was admissible at trial, as it is sufficiently grounded in: (a) his consideration of the problem of public disclosure; (b) his specialized experience; and (c) his varied interactions with the “trade secrets” and their related legal documentation.

    D. Howard’s testimony is the product of reliable principles and methods reliably applied to the facts of the case.

    Defendant believed that Howard inadequately explained how certain patents or products have not critically jeopardized the potential “secret” status of Plaintiffs’ alleged trade secrets. Plaintiffs, on the other hand, highlighted Howard’s comprehensive analysis of a relevant patent and his repeated consideration of the issue of public disclosure.

    The Court found that the existence of certain patents and alternative products have not precluded Howard’s expert opinion. Nor has the personal interpretation of a patent by Plaintiffs’ corporate representative rendered Howard’s conclusions inadmissible at trial. Rather, Howard’s methodology is reliable and suitable for the purpose it serves. Moreover, the Court found that Howard applied his methodology consistently and transparently to all the facts he examined.

    II. Admissibility under Rule 403

    Defendant argued that Howard’s “counterfactual opinion” should not be permitted to reach the ears of the jury.

    The Court found that Howard’s testimony is the result of purposeful and
    diligent action, imbuing it with probative value wherever Plaintiffs’ alleged “trade secrets” are concerned. As noted above, concerns about Howard’s due diligence or the extent of his analysis should be addressed at trial, not exclusion under Rule 403.

    Held

    The Court denied Defendant Signature Systems Group, LLC’s Daubert motion to exclude the expert opinions of Dr. William Howard.

    Key Takeaway:

    While Howard did not specifically address a wide array of patents or products that might have undermined his analysis, the Court is confident that counsel will, by skillful cross-examination, illuminate for the jury each error and omission in his analysis.

    The factual bases and considerations of Howard’s opinions are issues of credibility, not admissibility, and to the extent Defendant believes Howard should have conducted a more thorough or complete analysis, those criticisms should be raised at trial.

    Case Details:

    Case Caption: Spartan Composites LLC, Et Al. V. Signature Systems Group, LLC
    Docket Number: 4:24cv609
    Court Name: United States District Court, Texas Eastern
    Order Date: November 10, 2025
  • Economics Expert’s Opinion on Copyright Damages Excluded

    Economics Expert’s Opinion on Copyright Damages Excluded

    Plaintiff The Upper Deck Company (“Upper Deck”) sued its former contractor, Ryan Miller (“Miller”), and its competitor, Ravensburger North America Inc. (“Ravensburger”), for claims arising from the alleged copying of Upper Deck’s new trading card game (“TCG”), Rush of Ikorr.

    Miller filed motions to exclude Plaintiff’s expert witnesses Dr. Roberto J. Cavazos and Dr. Ian Bogost while Plaintiff filed a motion to exclude Miller’s expert witness James E. Pampinella.

    Gaming Expert Witness

    Dr. Ian Bogost serves as a professor of Film and Media Studies as well as Computer Science and Engineering at Washington University in St. Louis and enjoys international recognition “as a key figure in game design and game studies.”

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

    Economics Expert Witness 

    Dr. Roberto J. Cavazos is an economics professor with thirty years of experience. He has worked in a number of areas including lost earnings, business damages, labor management relations for global
    multinationals.

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

    Accounting Expert Witness

    James E. Pampinella CPA, CFF, CLP has been providing consultation services in the area of complex commercial litigation and valuation services for over 30 years, specializing in intellectual property strategic consulting and disputes, including matters involving copyrighted works.

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

    Discussion by the Court

    Miller’s Motion to Exclude Plaintiff’s Expert  Bogost

    Bogost is qualified to testify about TCGs

    Miller sought to exclude Bogost’s testimony, arguing that he is not qualified to opine on TCGs, that his methods are unreliable, and that he offered improper legal opinions.

    The Court noted that Bogost’s CV has a marked video game slant. However, his CV also contains several indications of general game expertise: throughout his career, Bogost has written several publications on games and game theory generally, taught multiple university courses on game design, and presented at several conferences on games.

    Given Bogost’s ample experience in the field of games, game design, and game review—and because his opinions are based on specialized knowledge other than science—the Court found that Bogost met the minimum bar set by Rule 702 to qualify as an expert on TCGs.

    Bogost’s methodology is sufficiently reliable to offer expert opinions about the two TCGs

    Miller also challenged the reliability of Bogost’s methodology. Bogost first obtained two sets of Lorcana starter decks, which included “ready to play” decks, a booster pack of cards, a tabletop play mat, printed rules, and “a set of cardboard chits.” Bogost next considered what version of Rush of Ikorr to use in his analysis. After reviewing case materials, Bogost obtained the materials Miller submitted to Upper Deck prior to his departure (“Version 2.6”), then played both games. After playing the games, Bogost made observations about each game, and formed opinions as to particular “bundles of expression” drawing on his experience in game design. 

    Miller took issue with how Bogost played Version 2.6 because he did not use overlays, and did not play in team mode. But as Upper Deck pointed out, Bogost could not recall whether he used the overlays and Rush of Ikorr can be played as a single-player or team-based game.

    Bogost initially made determinations as to which versions of the games to obtain based on the particular facts in the record, then proceeded to play the games, and draw conclusions based on his knowledge of game mechanics.

    Miller also moved to exclude Section E of Bogost’s report. In Section E, Bogost first explained that “rough-looking” materials, such as Version 2.6, still represent a substantially complete work product in the game design process. While the completeness of Version 2.6 was relevant to the copyright claim, the state of that work product when Miller left Upper Deck and whether it was sufficiently complete or valuable may also be relevant to Plaintiff’s contract claim.

    Accordingly, the Court denied Miller’s motion to exclude Bogost.

    B. Defendant’s Motion to Exclude Upper Deck’s Copyright Damages Expert Dr. Roberto Cavazos

    In this case, Cavazos provided his opinion on copyright damages, estimating economic harm by analyzing the “market value” of rights allegedly taken, and by calculating Defendant Ravensburger’s profits allegedly derived from infringement of Upper Deck’s TCG.

    Cavazos testified that his methods arise under copyright law, and were based upon his understanding from counsel of the applicable measure of copyright damages.

    Cavazos does not attempt to quantify any alleged breach of contract by Miller, nor assign value to Miller’s work on Version 2.6 in the context of the profits from the Lorcana game, nor does it seem he would be qualified to do so. Rather, the royalty rate that Cavazos calculated considered only Ravensburger’s total global revenues and profits from sales of Lorcana, and did not attempt to apportion any value to Miller’s alleged disclosures of confidential information.

    Cavazos admitted that he was not an expert in game design, did not identify the intellectual property at issue, and did not provide a basis for his one-third opinion, beyond that it “stands to reason” that some people would buy the game because of the underlying game design, not just because of the use of Disney IP. 

    The Court held that Cavazos’s opinions are no longer relevant to the issues in this case, and to the extent that they could be, he is not qualified to provide them. 

    C. Plaintiff’s Motion to Exclude Defense Damages Expert James Pampinella 

    With regard to Upper Deck’s general objection to Pampinella’s use of the costs approach, Upper Deck acknowledged that the method is one of three that is accepted by economic literature. Thus, Upper Deck’s objection to Pampinella’s decision to rely solely upon the costs approach concerned the weight rather than admissibility.

    Upper Deck also took issue with Pampinella’s results under the costs approach, arguing that “it is illogical and unreliable for Pampinella to assert that there are no actual damages.” While Pampinella found no actual damages as to the alleged conduct of Ravensburger and Miller, he also concluded that Upper Deck could have suffered economic damages of up to $39,000—the amount paid to Miller under his contracts with Upper Deck.

    The Court is also unpersuaded that Pampinella’s lack of expertise in the gaming industry damages renders his opinion inadmissible for the same reason it found Bogost’s lack of specialized TCGs experience not to be dispositive. 

    Held

    • The Court denied Miller’s motion to exclude Dr. Ian Bogost’s testimony.
    • The Court denied Upper Deck’s motion to exclude James E. Pampinella’s testimony.
    • The Court granted Miller’s motion to exclude Dr. Roberto Cavazos’ testimony.

    Key Takeaway:

    It is true that the Daubert standard can be more difficult to apply where “expert testimony is ‘experience-based’ rather than ‘science-based.’ But here, Bogost obtained the materials Miller submitted to Upper Deck prior to his departure (“Version 2.6”), then played both games. After playing the games, Bogost made observations about each game, and formed opinions as to particular “bundles of expression” drawing on his experience in game design.

    Case Details:

    Case Caption: The Upper Deck Company V. Miller Et Al
    Docket Number: 2:23cv1936
    Court Name: United States District Court, Washington Western
    Order Date: October 20, 2025

  • The Psychiatry Expert Was Allowed to Opine on the Absence of Sexual Trauma

    The Psychiatry Expert Was Allowed to Opine on the Absence of Sexual Trauma

    Defendant Wendy’s International, LLC operates a multinational fast food restaurant chain specializing in hamburgers and French fries. M.B. was a minor female employee of a Wendy’s restaurant in Lutz, Florida. M.B. alleged that from September until December 2023, she was subjected to sexual harassment at Wendy’s by Jamaya Clemmons, a 25-year-old male Wendy’s employee. She testified in deposition to several non-consensual sexual encounters with Clemmons at work.

    Plaintiff filed this lawsuit asserting claims for sexual harassment and hostile work environment. According to defense expert Eric M. Kaplan, M.D., a psychiatrist, Plaintiff did not suffer from PTSD arising from her experience with Clemmons at Wendy’s.

    Plaintiff filed a motion to exclude Kaplan’s opinions, arguing that he is unqualified to offer them and that his testimony failed the requirements for expert testimony imposed by Rule 702. Kaplan opined that she suffered from other conditions caused by factors that largely pre-date her employment at Wendy’s. 

    Psychiatry Expert Witness

    Eric Michael Kaplan, M.D.  is a board-certified psychiatrist with 35 years of experience treating adults and adolescents with a variety of conditions.

    Kaplan has worked as a forensic psychiatrist for over 25 years, and has been board certified by the American College of Forensic Examiners and American Board of Forensic Medicine for almost 30 years.

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

    Discussion by the Court

    Plaintiff argued that Kaplan is a general and forensic psychiatrist who is not “subspecialty trained” in adolescent or child psychiatry and has only limited experience in his clinical practice with adolescents who have suffered sexual trauma. Plaintiff further argued that Kaplan is unqualified to administer a psychological test he used as part of his evaluation of Plaintiff, and that his testing methods were unreliable.

    However, the Court found that Kaplan is sufficiently qualified and that his approach was sufficiently reliable to be admitted under Rule 702.

    Kaplan based his opinions on an examination of Plaintiff, including but not limited to an interview and psychological testing, and on his medical and psychiatric training and 35 of years of experience. In addition, he reviewed medical and other records, including records relating to previous treatment for emotional problems, and he reviewed depositions of Plaintiff, Clemmons, and Plaintiff’s parents. Moreover, he compared Plaintiff’s information to the diagnostic criteria in the Diagnostic and Statistical Manual of Mental Disorders or DSM, a standard reference work published by the American Psychiatric Association.

    Plaintiff’s motion did not argue that Kaplan’s overall methodology was inappropriate. Instead, Plaintiff offered specific criticisms of how Kaplan performed various aspects of the evaluation and the conclusions he reached. These criticisms go to the weight to be accorded to Kaplan’s testimony, not its admissibility.

    The Court also found that, contrary to Plaintiff’s argument, Kaplan was sufficiently qualified to administer the MMPI-2-RF psychological test he gave Plaintiff. Scoring such tests is a matter typically within the expertise of psychologists rather than psychiatrists, but Kaplan has had training in using such tests and he did not score the results himself but sent them to the test’s creator for scoring and interpretation.

    Held

    The Court denied the Plaintiff’s motion to exclude the testimony of defense expert Eric Kaplan.

    Key Takeaway:

    While expert qualifications in a general area do not necessarily qualify an expert to offer any specific opinion within the area, by the same token, specific training or certification in a particular subspecialty area (such as, here, adolescent psychiatry) is not necessarily required to offer opinions in that area.

    Case Details:

    Case Caption: M.B. Et Al V. The Wendy’s Company Et Al
    Docket Number: 8:24cv1116
    Court Name: United States District Court, Florida Middle
    Order Date: October 17, 2025
  • Compliance Expert’s Testimony on the Hallmarks of a Pill Mill Excluded

    Compliance Expert’s Testimony on the Hallmarks of a Pill Mill Excluded

    Defendant Heather Marks, a nurse practitioner, is charged in a Superseding Indictment with distributing and conspiring (with her former co-defendant, Hemal Mehta, M.D.) to distribute Schedule II controlled substances outside the usual course of professional practice and without a legitimate medical purpose. 

    The Defendant also sought to introduce the testimony of Michael W. Staples, CMBI, as a “Regulatory and Legal Health Care Compliance Expert.”

    Marks has submitted an expert report by Staples, showing that he proposes to testify about (1) the challenges of “Rural Healthcare”; (2) the characteristics of a “Pill Mill” and “bad faith-controlled substance prescribing”; and (3) patient stigma related to controlled substance prescribing and addressing aberrant issues. 

    The government argued that Staples is not qualified to testify as an expert to offer the evidence he proposes to offer and that his proposed testimony is both unreliable and irrelevant.

    Compliance Expert Witness

    Michael W. Staples has twenty-five years’ of experience in criminal investigations, regulatory and criminal healthcare investigations, medical standards of care investigations, scope of medical practice investigations, and healthcare regulatory and legal compliance.

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

    Discussion by the Court

    A. “The Challenges of ‘Rural Healthcare’”

    Regarding his first proposed topic, the government argued that Staples is not a medical practitioner of any kind and therefore is not qualified to offer medical opinions, using medical jargon, about the appropriate standard of medical care in any setting. More specifically, the government asserted that Staples is not qualified to opine that the applicable standard of care that applies to medical practitioners in the rural setting is different from that governing medical practitioners in urban settings.

    The Court agreed that Staples cannot offer medical testimony or testify about the medical standard of care per se. Consequently, he cannot offer an opinion that the practice of medicine in a rural setting changes the applicable standard of care—this is a medical issue. Nor may he opine that the rural setting somehow altered the legal requirements for proving a violation. However, insofar as Marks’ defense in this case is that she subjectively believed that she was authorized to issue the prescriptions at issue, because she did so in the usual course of her professional practice and with a legitimate medical purpose, Staples’ testimony about the unique challenges facing medical practitioners in rural areas appeared to have some bearing on whether her belief was objectively reasonable.

    The Court held that while Staples may not offer a medical opinion, his experience and training as a healthcare regulatory consultant, investigator, and expert provided him a sufficient basis to proffer an opinion that the rural setting of Marks’ practice posed significant challenges for providers not found in urban settings.

    B. “Characteristics of a ‘Pill Mill’ and ‘Bad Faith controlled substance prescribing’”

    The Defendants argued that they “should not be foreclosed from asking agents about the hallmarks of a ‘pill mill’ case or the wide swath of conduct that is captured by this particular charging statute.”

    The Court addressed this issue orally at a pretrial conference on August 25, 2021, stating that, insofar as the Defendants wanted to question law enforcement agents about the “hallmarks of a pill mill case,” such testimony “would not be allowed,” as it “gets into the charging decision by the government, which is really no concern of the jury.”

    Staples sought to testify both about the hallmarks of a pill mill and that Marks’ practice did not demonstrate any of the characteristics of a pill mill. The government argued that the first part of the proposed testimony is barred by the Court’s previous ruling, that the second part constituted medical opinion testimony, and that both are irrelevant because the government never intended to argue that Marks’ medical practice was a pill mill. 

    The Court held that Staples will not be permitted to argue about the hallmarks or characteristics of a pill mill or that Marks’ practice did not carry any of these hallmarks. 

    C. Patient “Stigma”

    Marks did not address the issue of “patient stigma” in responding to the government’s motion to exclude. The Court found that this part of Staples’ opinion did not offer an opinion tied to or related to any evidence or issue in this case, appeared to constitute medical opinion, and is simply not relevant. 

    D. Urine Drug Testing

    Regarding Staples’ opinions about the use of urine drug testing as a “tool” to be utilized by medical practitioners but not the “sole basis for diagnosis and treatment decisions” and his long list of factors that may cause a negative drug urine test, the Court found that this testimony steps over the line between lay and medical opinion and is not admissible through Staples. In any event, Marks did not address the government’s argument regarding this portion of Staples’ Report or even attempt to justify its introduction.

    Held

    The Court granted in part and denied in part the government’s motion to exclude the testimony of Michael Staples.

    Key Takeaway:

    Staples’ proposed testimony about the unique challenges posed by the rural setting in which Marks’ practice was situated may be relevant to the objective reasonableness of her prescribing practices. As a result, Staples was allowed to offer limited expert testimony on the “unique circumstances that physicians in rural areas face and how this adversely affects their practice.” 

    Case Details:

    Case Caption: United States V. Marks
    Docket Number: 2:19cr3
    Court Name: United States District Court, Tennessee Middle
    Order Date: September 30, 2025
  • Medical Coding Expert’s Testimony About the Health Insurance Claims Admitted

    Medical Coding Expert’s Testimony About the Health Insurance Claims Admitted

    Plaintiff Michael Swartzendruber claimed that Defendants United Healthcare Insurance Company and United Healthcare of the Mid-Atlantic, Inc. (collectively “United”), and Defendants Sentara RMH Medical Center and RMH Medical Group, LLC (collectively “Sentara”) overcharged him for hospital services and/or by making misrepresentations about the charges for his blood tests. 

    On each occasion, Swartzendruber’s blood was drawn at a Sentara satellite outpatient location and tested at Sentara’s main hospital location. Sentara billed, and United processed and reimbursed, charges for medical services based on rates associated with the main hospital location as opposed to rates of certain providers operating at the satellites.

    Plaintiff filed a motion to exclude the expert testimony of Defendants’ expert, Kristina Kahan. Kahan was retained to opine on whether or not the health insurance claims at issue in this case were properly billed.

    Medical Coding Expert Witness

    Kristina B. Kahan is a Registered Nurse, Certified Professional Coder, and senior managing director at Ankura Consulting with decades of clinical, compliance, and coding experience in the healthcare industry.

    She holds multiple coding certifications: Certified Professional Coder (“CPC”), Certified Outpatient Coder (“COC”), and Certified Risk Adjustment Coder (“CRC”).

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

    Discussion by the Court

    To begin with, Plaintiff challenged the relevancy and helpfulness of Kahan’s opinions, and disputes that Kahan has offered a sufficient basis on which to offer her opinions. 

    a) Basis for Opinions

    In her report, Kahan concluded that Sentara properly submitted claims for the services at issue in this case and that United properly adjudicated the claims it received from Sentara.

    Specifically, Kahan concluded that Sentara appropriately billed the services rendered as originating from Sentara RMH Medical Center because the services were “performed at off-campus locations of RMH Medical Center and the blood testing was performed at RMH Medical Center’s main hospital location” and thus constituted “facility services.”

    Kahan concluded that Sentara properly billed and United properly adjudicated the claims. In making these conclusions, Kahan evaluated Sentara RMH Medical Center’s hospital certification and Medicare Provider Enrollment, Chain, and Ownership System information. As a result, the Court found that Kahan has developed sufficient bases on which to support her opinions.

    b) Relevancy and Helpfulness

    Defendants asserted that Kahan’s report addressed material aspects of the case—whether Sentara appropriately submitted the claims and whether United appropriately adjudicated them.

    However, Plaintiff argued that Kahan’s report is not helpful to the Court because Kahan offered no testimony that is helpful or necessary for the Court to interpret the contract at issue.

    The Court found that the Kahan Report presented relevant and helpful evidence as it served to assist the Court in understanding the healthcare claims submission and adjudication processes, including the relevant regulations governing these processes, such that the Court is better equipped to address the issues in dispute in this case. 

    Held

    The Court denied the Plaintiff’s motion to exclude Defendants’ expert Kristina B. Kahan.

    Key Takeaway:

    Basically, the parties are correct that the Court can read and interpret the contracts at issue, and the Kahan Report does not improperly delve into the world of contract interpretation. Thus, the Court may consider the Kahan Report for its value in understanding the broader environment of the instant case.

    Case Details:

    Case Caption: Swartzendruber V. Sentara RMH Medical Center Et Al
    Docket Number: 5:22cv55
    Court Name: United States District Court, Virginia Western
    Order Date: September 16, 2025
  • Orthopedic Surgery Expert’s Testimony on Medical Negligence Excluded

    Orthopedic Surgery Expert’s Testimony on Medical Negligence Excluded

    Plaintiff Nicholas Price, a former Virginia inmate, filed this civil rights action against Defendant Kyle Smith, M.D. (“Dr. Smith”), alleging that Smith was
    deliberately indifferent to Price’s serious medical needs after he sustained significant knee injuries while playing basketball at Augusta Correctional Center (“ACC”).

    Smith filed a motion to exclude the medical opinions of Price’s expert witness, Dr. Michael J. Katz.

    Orthopedic Surgery Expert Witness

    Michael Jesse Katz is board certified in Orthopedic Surgery. He has been a practicing physician for 40 years. He has treated thousands of patients with patellar tendon ruptures over the course of my career. Katz has served as an expert in many knee cases in the past.

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

    Discussion by the Court

    Smith filed a motion to exclude the medical opinions of Katz on two main grounds: (1) that Katz’s expert designation does not comply with Federal Rule of Civil Procedure 26; and (2) that his medical opinions are inadmissible under Federal Rule of Evidence 702.

    1. Katz’s expert medical report fails to comply with the disclosure
    requirements set forth in Federal Rule of Civil Procedure 26

    Katz’s expert report did not fully comply with the disclosure requirements set forth in Federal Rule of Civil Procedure 26(a)(2)(B). Although the report contains some of the necessary components, it omitted several critical elements mandated by the Rule and thus falls short of the required standard for expert disclosures.

    Katz stated his principal conclusion—that the delay in treatment for Price’s bilateral patellar tendon ruptures constituted a deviation from the standard of care and was the proximate cause of Price’s worsened condition. He further noted that such injuries require prompt surgical repair.

    While this constitutes a basic statement of opinion, the Court held that it is brief and conclusory, lacking meaningful detail or explanation. Courts within the Fourth Circuit have found conclusory findings insufficient to satisfy the requirements of Rule 26(a)(2)(B)(i).

    While Katz asserted that the ACC’s delay in providing medical care fell below the standard of care, he did not define the standard, nor did he explain the factual or clinical basis for his opinion.

    Furthermore, Katz’s report failed to include a list of prior cases in which he has testified as an expert at trial or by deposition within the last four years, in violation of Rule 26(a)(2)(B)(v).

    In sum, the Court held that Katz’s expert report failed to satisfy multiple subsections of Rule 26(a)(2)(B), including those related to the basis for his opinions, prior expert testimony, and compensation.

    2. Katz’s medical opinion is not admissible under Fed. R. Evid. 702

    While Katz listed the records he reviewed, they consisted solely of Augusta Health records from March 13 to March 24, 2021—after the alleged delay in care had already occurred. He did not review any medical records from ACC, the facility where the delay allegedly took place, nor did he examine any documentation regarding the care provided by Smith, the sole remaining Defendant in the case. Additionally, he opined that the delay caused the injury to worsen, but did not identify how it worsened, or any facts or records upon which he bases this opinion. The last medical records he reviewed were Augusta Health’s discharge records, eight days after surgery—when Price was still wearing knee immobilizers. He did not review the condition of Price’s knee, or the treatment thereof, before arriving at Augusta Health, nor did he evaluate the rehabilitation records that occurred after his stay at Augusta Health.

    These omissions are critical. Katz’s conclusion—that the delay in treatment at ACC caused Price’s injury to worsen—depended upon knowing what care was provided, when, and by whom. Without having reviewed any records from ACC, the Court held that his opinion rests on an incomplete and selective factual basis.

    Moreover, Katz did not define what the standard of care is, did not identify how it was violated, and did not indicate what constitutes “prompt” treatment under the circumstances. Katz was asked to opine on a question rooted in negligence: whether the delay in treatment “fell below the minimum standard of care.” But this did not address the constitutional threshold of deliberate indifference and thus had no relevance to the central legal question in this case.

    Held

    The Court granted Smith’s motion to exclude the medical opinions of Price’s expert witness, Dr. Michael Katz.

    Key Takeaway:

    Katz’s report failed to satisfy any of the four foundational prongs of Rule 702. It is not based on sufficient facts or data, did not reflect or apply reliable principles or methods, and is not relevant to the legal claim of deliberate indifference.

    Case Details:

    Case Caption: Price V. White Et Al
    Docket Number: 5:23cv10
    Court Name: United States District Court, Virginia Western
    Order Date: September 17, 2025
  • Economics Expert’s Stock Valuation Opinions Admitted

    Economics Expert’s Stock Valuation Opinions Admitted

    Plaintiffs Thomas O’Keefe, Kenneth Cunningham, Joseph Lewis, Brian Judge, Byounghoon Ahn, Dione Heusel, Betsy Riggs, and Thomas West are former executives and employees of Defendant Smoothie King Franchises, Inc.

    This action arises out of Defendants’ allegedly wrongful decision to terminate
    Plaintiffs’ stock options in SK USA, Inc.

    Plaintiffs engaged expert Craig J. McCann, Ph.D. and CFA, “to provide an analysis of the value of the Plaintiffs’ options on stock of SK USA.”

    However, Defendants filed the motion to exclude McCann’s testimony based on three reasons: (1) McCann failed to adhere to the applicable professional standards in his field; (2) McCann’s stock valuation opinions focus on irrelevant time frames; and (3) there is too great an analytical gap between the facts of this case and McCann’s analysis.

    Economics Expert Witness

    Craig J. McCann, Ph.D. is Principal, SLCG Economic Consulting, LLC. He has taught graduate investment management at Georgetown University and at the University of Maryland, College Park. McCann is a Chartered Financial Analyst.

    McCann received a B.A. and an M.A. in Economics from the University of Western Ontario and a Doctorate degree in Economics from the University of California, at Los Angeles.

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

    Discussion by the Court

    In his expert report, McCann summed up his findings with two main points:

    1. Value Based on Stock Sale: He calculated that each of the Plaintiffs’ stock options was worth about $3,164 using a standard valuation method (called the OPM backsolve) based on SK USA Holdings’ recent sale of preferred stock.
    2. Real Value is Higher: He argued that this number is too low because the company’s main shareholder deliberately chose to raise $100–$130 million in a way that avoided selling stock, which suggests the stock was more valuable than the sale price implied. Based on this, McCann concluded that the plaintiffs’ stock options were actually worth between $3,337 and $3,619 each.

    He also presented a table showing how the options’ value would change if the company’s total value was between $700 million and $800 million (as supported by private equity offers and executive testimony). In that case, he said the options would be worth $3,246 to $3,743 each — again, more than the $3,164 calculated using the first method.

    Motion to Exclude

    Defendants argued that the Court should exclude McCann’s testimony because he admitted that he did not adhere to the Uniform Standards of Professional Appraisers, the International Valuation Standards, the American Society of Appraisers’ standards, the National Association of Certified Valuators and Analysts’ standards, or the Association of International Certified Professional Accountants’ (“AICPA”) standards in forming his opinions.

    Defendants further argued that McCann violated industry standard by not using multiple methods to calculate the value of Plaintiffs’ stock options.

    Additionally, Defendants argued for exclusion of McCann’s testimony based on the dates he valued the Plaintiffs’ stock options. According to Defendants, the relevant date for the valuation of Plaintiffs’ stock options is the date the alleged breach of contract occurred.

    Finally, Defendants sought to exclude McCann’s testimony, arguing that there is too great an analytical gap between the facts he considered and the opinions he reached.

    Analysis

    However, the Court found McCann’s opinions to be relevant and reliable and found that his testimony will aid the jury in resolving the factual dispute as to the value of the Plaintiffs’ stock options. The Court was convinced that McCann’s reasoning is scientifically valid.

    Basically, the criticisms raised by the Defendants all are related to the bases and sources for McCann’s opinions.

    Held

    The Court denied Defendants’ motion to exclude the testimony of Craig McCann.

    Key Takeaway:

    As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the [factfinder’s] consideration. Furthermore, experts may rely on one version of disputed facts in forming their opinions. Any weaknesses in his testimony based on questionable assumptions may be dealt with on cross-examination.

    Basically, the Court is convinced that the Defendants will effectively cross-examine McCann as to the bases and sources of his valuation opinions and will highlight any weaknesses in his testimony for the benefit of the jury.

    Case Details:

    Case Caption: O’Keefe Et Al V. Smoothie King Franchises, Inc. Et Al
    Docket Number: 2:24cv2094
    Court Name: United States District Court, Louisiana Eastern
    Order Date: September 09, 2025