Expert Witness Profiler

Tag: Motion to Exclude

  • Psychology Expert’s Testimony on Consumer Perceptions of Online Posts Excluded

    Psychology Expert’s Testimony on Consumer Perceptions of Online Posts Excluded

    This case arises out of an ongoing dispute between Plaintiffs LoanStreet, Inc. (“LoanStreet”) and LoanStreet CEO Ian Lampl (“Lampl,” and together with LoanStreet, “Plaintiffs”) and a former employee, Defendant Wyatt Troia (“Troia”).

    LoanStreet, a online platform which provides services to help clients share, manage, and originate loans, hired Troia to work as a software engineer in February 2019.  In June 2020, LoanStreet terminated his employment. Troia subsequently posted disparaging statements about LoanStreet, Lampl, and other LoanStreet employees on various websites, including Glassdoor.com and Reddit.com.

    Troia also purchased advertisements on Google that would appear when users searched the following terms or phrases: “LoanStreet”; “Loan Street”; “LoanStreet Glassdoor”; “LoanStreet careers”; “LoanStreet engineering”; “LoanStreet software engineering”; “What it’s like to work at LoanStreet”; and “LoanStreet Jobs.” Each of Troia’s Google advertisements began with the heading: “LoanStreet horror story” and linked to a Reddit post he had made, titled: “Name and Shame: LoanStreet (NY) cheated me out of equity.”

    Plaintiffs brought suit against Troia, asserting claims for breach of contract, defamation and unfair competition.

    Troia filed a motion to exclude Plaintiffs’ proposed expert, Allen Adamson while Plaintiffs filed a motion to exclude Troia’s proposed experts, Deepak Sabiki and Lamarcus Bolton.

    Branding Expert Witness

    Allen P. Adamson is a co-founder and managing partner of Metaforce, a marketing and brand consultancy, and he is an Adjunct Professor and guest lecturer at New York University’s Stern School of Business. He received his B.S. from the S.I. Newhouse School of Public Communications at Syracuse University and his MBA from New York University’s Stern School of Business.

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

    Forensic Accounting Expert Witness

    Deepak Sabiki is a principal at Sabiki Consulting LLC, and he serves as a consulting and testifying expert in “forensic accounting, compliance, and litigation matters.” Sabiki received his B.S. in Finance and Economic Theory Analysis from New York University’s Stern School of Business.

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

    Psychology Expert Witness

     Dr. Lamarcus R. Bolton is a Principal at Insightful Holdings, a research firm based in Los Angeles, California. He attended St. Louis University, where he received his B.A. in Psychology and his M.S. and PhD in Industrial/Organizational Psychology.

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

    Discussion by the Court

    a. Troia’s Daubert Motion

    Troia filed a motion to exclude the testimony of Plaintiffs’ proposed expert, Allen Adamson.

    In his thirty-six-page report, Adamson evaluated the damage sustained to LoanStreet’s brand as a result of Defendant’s defamatory statements, focusing on the impact of his advertisements and posts on the company’s brand, and specifically on its ability to recruit software engineers and other prospective employees, attract and retain investors, and appeal to customers. Adamson further assessed the reputational damage sustained by Lampl’s “personal brand” due to Defendant’s statements.

    He ultimately determined that LoanStreet would need to spend a total of $3,700,000 over at least two years to repair its reputation with software engineers, prospective customers, and investors, and that Lampl would be required to spend between $750,000 and $2,500,000 over the next three to five years in order to adequately restore his reputation and safeguard his future career prospects.

    Troia claimed that Adamson’s testimony should be excluded as “irrelevant, unreliable, and prejudicial” and raised a variety of concerns centering primarily upon the assertion that Adamson’s report did not adequately establish causation by isolating the harm caused by Defendant’s defamatory statements.

    He also asserted that Adamson’s damages calculation impermissibly accounts for the republication of Defendant’s defamatory statements by third parties, which Troia contended is speculative and resulted in an “artificially inflated” damages amount.

    As Plaintiffs noted, broad general damages are permitted in cases involving defamation per se, and Adamson’s testimony is thus squarely relevant to those claims.

    The Court held that Troia’s remaining concerns regarding Adamson’s report and proposed testimony primarily concerned the weight of his testimony, rather than its admissibility, and are best addressed on cross examination.

    b. Plaintiffs’ Daubert Motion

    i. Deepak Sabiki

    Sabiki reviewed Adamson’s expert report and, after reviewing additional documents in this case, issued a ten-page rebuttal report in which he concluded that Adamson’s report is “speculative and not reliable, because it fails to tie the wrongful acts of Troia to the economic harm that LoanStreet and Lampl allegedly suffered.” 

    Plaintiffs contended that Sabiki’s report should be precluded because: (i) he has no expertise in branding and reputational harm or repair; (ii) he did not perform his own analysis or proffer a contrary damages calculation; and (iii) his proposed testimony presents arguments that counsel could make equally well without a witness.

    As an experienced consulting and testifying expert in litigation and forensic accounting with a degree in finance and economic theory analysis, the Court held that Sabiki is qualified to testify as a rebuttal expert regarding Adamson’s analysis of the economic damages sustained by Plaintiffs as a result of Defendant’s defamatory posts. Moreover, Defendant clarified that Sabiki is testifying solely as a rebuttal expert.

    Although Plaintiffs contended that Sabiki’s analysis consisted of observations that “can be observed readily by jurors and/or brought out in cross examination without benefitting from any aid by an expert,” they have not raised sufficient concerns regarding Sabiki’s qualifications or the reliability and relevance of his testimony. On the contrary, Sabiki’s opinion raised questions regarding Adamson’s analysis and methodologies, centering primarily on his failure to perform an economic causation analysis and a comparative damages analysis, as well as the data and assumptions underlying Adamson’s report. Although Plaintiffs may disagree with Sabiki’s conclusions, the Court held that those disagreements are best addressed on cross-examination.

    ii. Dr. Lamarcus Bolton

    Bolton conducted two surveys intended to “analyze public perceptions of the Defendant’s online statements regarding” LoanStreet and “gauge how these perceptions influenced potential employees’ and potential customers’ decisions to work for or engage in business with LoanStreet.”

    In his 137-page report, Bolton concluded, inter alia, that the survey results suggested that “the vast majority of the readers” of Troia’s posts “did not think the posts accused LoanStreet of breaking the law when it withheld equity compensation from Troia.”

    The primary issue with Bolton’s survey and report, as Plaintiffs noted, is its focus on whether respondents believed that Defendant had accused Plaintiffs of “breaking the law.” The use of this phrase appeared to be designed to determine whether the survey respondents believed defendant’s posts conveyed defamatory meaning. However, “breaking the law” carries an indisputably criminal connotation, and its use is entirely inappropriate in a survey carried out to assist in the determination of damages owed in a civil litigation. 

    Further, the Court agreed with Plaintiffs that both surveys impermissibly attempted to relitigate the question of liability and Defendant’s intent in crafting his posts by asking whether it “is possible” that the author of the posts “did not intend to claim LoanStreet broke the law” or was “motivated . . . by a desire to protect fellow workers” and asking whether the author’s post was “useful to public debate about workers’ rights.” Moreover, the fact that Bolton’s survey examining Defendant’s Reddit post did not include all the defamatory statements contained in the original post rendered that survey unusable.

    Additionally, both surveys are less reliable because they failed to exclude survey respondents with prior knowledge of Defendant’s posts regarding Plaintiffs or who had pre-existing perceptions regarding LoanStreet.

    Held

    • The Court denied Troia’s motion to exclude the testimony of Plaintiffs’ expert Allen Adamson.
    • The Court denied Plaintiffs’ motion to exclude the testimony of Troia’s experts with respect to Deepak Sabiki but granted it with respect to Dr. Lamarcus Bolton.

    Key Takeaway:

    While each methodological flaw, standing alone, may not mandate exclusion, the cumulative effect of the methodological flaws so diminishes the reliability and probative value of the survey that its exclusion is warranted under Rules 403 and 702.

    Case Details:

    Case Caption: Loanstreet Inc. Et Al V. Troia
    Docket Number: 1:21cv6166
    Court Name: United States District Court, New York Southern
    Order Date; September 03, 2025
  • Emergency Medicine Expert Barred From Testifying Due to His Admitted Lack of Knowledge

    Emergency Medicine Expert Barred From Testifying Due to His Admitted Lack of Knowledge

    Plaintiff Emilee Bradley sued Defendants BSL Express Trucking, Inc. and Fatkhuddin Kurbonov in Jefferson Circuit Court, alleging various claims arising from an automobile accident involving Bradley and Fatkhuddin Kurbonov. Intervening Plaintiff Shawna Broyles (hereinafter “Broyles”) was a passenger of Plaintiff Bradley’s vehicle.

    Defendants filed a motion to exclude the opinion of Broyles’ proffered expert, Dr. Jules J. Barefoot.

    Defendants asserted that Barefoot’s expert report “is devoid of any meaningful analysis or reasoning” and therefore would not aid the jury with its deliberation of any issues in the case. Additionally, Defendants argued that Barefoot is not qualified to opine regarding Broyles’ dental injuries, scarring, or alleged concussion.

    Emergency Medicine Expert Witness

    Julius Jackson Barefoot is a medical doctor certified in emergency and preventative medicine. In addition, Barefoot is a certified independent medical examiner and has extensive experience evaluating injuries in the litigation context.

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

    Discussion by the Court

    Broyles intended to introduce Barefoot to testify that she suffered injuries from the accident and that “all of the medical care and medical bills [she] incurred . . . were reasonable, necessary, and appropriate for the injuries sustained.”

    The Court agreed with Defendants that Barefoot’s proposed testimony must be excluded. Because Barefoot’s report did not outline his reasoning or methodology, the Court is left to speculate as to whether Barefoot’s opinion “is the product of reliable principles and methods” or whether he has reliably applied those “principles and methods to the facts of the case.” Indeed, Barefoot provided no explanation for his conclusion that Broyles’ medical treatment was appropriate.

    The Court is also not convinced that Barefoot’s testimony would aid the jury. Barefoot’s report largely consisted of a summarization of Broyles’ medical records. And because Barefoot offered only a conclusory statement that Broyles’ treatment was necessary and appropriate, his proposed testimony did nothing to meaningfully “contextualize, analyze, and interpret” this historical information.

    Finally, the Court noted that Barefoot’s report repeatedly stated that he has not evaluated Broyles and that he is unaware of the full extent of her injuries and treatment. Barefoot’s admitted lack of knowledge regarding the full extent of Broyles’ injuries and treatment therefore made it impossible for him to reliably testify in the manner Broyles intended.

    Held

    The Court granted the Defendants’ motion to exclude the opinion of Plaintiffs’ expert Dr. Jules Barefoot.

    Key Takeaway:

    Information presented without any expert analysis or other application of the expert’s expertise generally should come to the jury directly from the sources rather than through the mouth of the expert. In this case, Broyles’ medical history “should come to the jury directly from the sources rather than through the mouth of” Barefoot.

    Case Details:

    Case Caption: Bradley V. BSL Express Trucking, Inc. Et Al
    Docket Number: 3:23cv133
    Court Name: United States District Court, Kentucky Western
    Order Date: August 18, 2025
  • Internal Medicine Expert’s Testimony Limited Despite His Physician Behavior Experience

    Internal Medicine Expert’s Testimony Limited Despite His Physician Behavior Experience

    Plaintiff State of Washington alleged that Novo Nordisk Inc. (“NNI”) caused physicians to prescribe its drug, NovoSeven®, to Washington hemophilia patients by: (1) promoting it “off-label” for prophylaxis and “high dose” use; (2) paying kickbacks to physicians; and (3) paying bribes to patients, all of which rendered claims to Medicare and Washington Medicaid false.

    The State of Washington has been investigating this case for almost fifteen years, hoping to find evidence of unlawful conduct that allowed its Medicaid program to recoup money it paid for a medically necessary, life-saving drug.

    Novo Nordisk’s expert, Dr. Anupam B. Jena, a medical doctor who also has a Ph.D. in economics opined that NNI’s “alleged publication strategy” did not cause the submission of false claims for NovoSeven.

    Washington did not challenge Jena’s credentials or expertise, but it did argue that his “causation” opinions were not admissible because (1) they were based on insufficient or mis-stated facts; (2) his methodology was unreliable because though he is not an expert on the independence of medical publications, he makes “assumptions” about the integrity of the publications at issue, while ignoring other evidence particular to the publications and strategies at issue; (3) he opined about areas of medicine and reimbursement that are outside his expertise; and (4) he opined about the law of causation, a matter better left for jury instructions.

    Internal Medicine Expert Witness

    Dr. Anupam B. Jena, MD, PhD, is the Joseph P. Newhouse Professor of Health Care Policy at Harvard Medical School and a physician in the Department of Medicine at Massachusetts General Hospital. He is also a faculty research associate at the National Bureau of Economic Research. As an economist and physician, Jena’s research involves several areas of health economics and policy including the use of natural experiments in health care, the economics of physician behavior and the physician workforce, medical malpractice, the economics of health care productivity, and the economics of medical innovation. 

    Jena graduated Phi Beta Kappa from the Massachusetts Institute of Technology. He received his MD and PhD in Economics from the University of Chicago and completed his residency in internal medicine at Massachusetts General Hospital. He is the host of the Freakonomics, MD podcast, which explores the “hidden side of health care.”

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

    Discussion by the Court

    The Court concluded that Jena is qualified to opine on the bulk of topics in his Report, including the reliability of peer-reviewed publications. He has sufficient expertise and experience in the field of physician behavior in connection with writing prescriptions to set out the many factors that can influence treating physicians in their selection of pharmaceuticals to prescribe for their patients.

    While Jena’s testimony was largely permitted because he is a qualified expert in the fields of medicine and economics and his report is based on sufficient facts or data, Jena was barred from opining on the ultimate legal conclusion that the physicians who prescribed NovoSeven did not do so because of the inducements and benefits NNI extended to them or their patients.

    Held

    The Court granted in part and denied in part the Plaintiffs Siegel and Washington’s motion to exclude the testimony of Defendant Novo Nordisk’s expert witness, Dr. Anupam Jena.

    Key Takeaway:

    As a general rule, an expert opinion is not objectionable simply because it embraces an ultimate issue to be decided by the trier of fact. However, an expert cannot opine as to a legal conclusion, or to the ultimate issue of law; instructing the jury on the applicable law is the Court’s distinct and exclusive province.

    Please refer to the blogs previously published about this case:

    Law & Legal Expert Helps Jury Understand Medicaid’s Complex Regulatory Framework

    Hematology Expert’s Opinion on NovoSeven’s Medical Appropriateness Admitted

    Pharmacology Expert’s Testimony About the Purpose and Effect of Illegal Marketing Tactics Excluded

    Case Details:

    Case Caption: United States ex rel. Siegel V. Novo Nordisk Inc.
    Docket Number: 3:23cv5459
    Court Name: United States District Court, Washington Western
    Order Date: July 2, 2025
  • Accounting Expert Allowed to Testify About the Lifetime Loss of Earnings

    Accounting Expert Allowed to Testify About the Lifetime Loss of Earnings

    Plaintiff Kimberly Breuil claimed that she was injured in a motor vehicle accident that took place on October 8, 2021.

    Breuil claimed that her injuries have made it painful to look downward and difficult to lift objects. As a result, she is seeking future lost wages and diminished earning capacity totaling between $483,273 and $1,085,644. She alleged that these injuries forced her to resign from her job at the United States Postal Service and take a lower-paying job at Pizza Hut or a similar employer for the remainder of her career. Breuil asserted that she has already experienced, and will continue to experience, loss of income and earning potential.

    Defendants Liberty Land Carriers, LLC and Michael White filed motions to exclude three of Breuil’s experts, Brooke Liggett, Dr. Brett Miller and Brendan Bourdage arguing that they have failed to satisfy the requirements for admissible expert testimony set forth in Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

    Accounting Expert Witness

    Brooke A. Liggett is a Certified Public Accountant, a Master Analyst in Financial Forensics, a Certified Valuation Analyst, and is also certified in Financial Forensics. She is the owner of Liggett Forensic Accounting and Economics.

    She specializes in calculating economic damages in personal injury and wrongful death cases, as well as in business-related economic damages.

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

    Orthopedic Surgery Expert Witness

    Dr. Brett Anthony Miller is a board-certified orthopedic surgeon and sports medicine specialist. Miller finished his undergraduate education at Washburn University in Topeka, Kansas, before earning his Doctor of Medicine degree from the University of Kansas School of Medicine in Kansas City, Kansas. There, he went on to complete both his internship and orthopedic surgery residency at the University of Kansas Medical Center. 

    Miller joined Orthopedic and Sports Medicine Center in 2004. At the practice’s office in St. Joseph, Missouri, Miller offers specialized care for sports-related and acute injuries using evidence-based medicine and modern operative techniques, including shoulder arthroscopy. 

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

    Accident Reconstruction Expert Witness

    Brendan P. Bourdage holds an M.S. in Kinesiology from California Polytechnic University, Humboldt. He has successfully completed numerous continuing education courses in crash analysis, collision reconstruction and investigation, as well as other training related to motor vehicle accidents. He holds licenses and registrations in engineering, traffic accident reconstruction, and functional movement, and has published articles and presented seminars on these topics.

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

    Discussion by the Court

    Brooke Liggett

    Liggett, a Certified Public Accountant, initially calculated that the Plaintiff’s change in employment had resulted in a lifetime loss of earnings between $488,273 and $1,085,644.

    However, the Plaintiff clarified that Liggett did not offer any opinions on whether the accident caused the Plaintiff to leave her job at the United States Postal Service (USPS), whether she could have continued working there, or on any other causation-related issues. Instead, Liggett’s role was limited to comparing the Plaintiff’s former earning capacity at USPS to her income at the time. She relied on the Plaintiff’s own statements about her inability to continue working at USPS and based her calculations on the Plaintiff’s then-current job and income.

    Moreover, Liggett explicitly stated that she was not a vocational expert and was not offering vocational opinions. Her testimony was confined to calculating the financial losses related to earning capacity and retirement benefits, which was within the scope of her expertise as a CPA. Additionally, the Plaintiff asserted that Liggett had no opinions about whether the Defendants caused the Plaintiff’s injuries or whether those injuries led to a reduction in earnings.

    Consequently, the Plaintiff contended that, if the jury concluded the Defendants were responsible for the Plaintiff’s job loss, Liggett’s testimony would assist the jury in determining the amount of damages. Ultimately, the Court found that Liggett was qualified to testify about present value calculations. Any concerns raised by the Defendants could be addressed through cross-examination or the presentation of contrary evidence. Importantly, the record contained no indication that Liggett intended to offer opinions on causation or vocational matters, and any such testimony would not be permitted. She was allowed to testify strictly in her capacity as an accountant, relying on admissible evidence.

    Brett Miller

    Miller, an orthopedic surgeon, conducted an independent medical examination of the Plaintiff. The Defendants sought to prevent him from offering any opinions on the Plaintiff’s mental health conditions allegedly caused by the accident, arguing that he is not qualified to do so. In response, the Plaintiffs stated that they have withdrawn any opinions Miller may have had regarding the Plaintiff’s mental health or depression. Therefore, they argued, the Defendants’ motion is now moot.

    In reply, the Defendants maintained that the Court should formally exclude any such opinions, since Miller, as an orthopedic surgeon, is not qualified to opine on mental health issues. The Court noted that the Plaintiffs had clearly stated—both in their filings and on the record—that Miller would not offer any testimony or opinions related to the Plaintiff’s mental health or depression.

    If the Plaintiffs later attempt to introduce such opinions from Miller at trial, the Court will address any objections from the Defendants at that time. However, since the Plaintiffs have already withdrawn these opinions, they will not be allowed at trial. As a result, the motion to exclude is denied as moot.

    Brendan Bourdage

    The Defendants argued that Bourdage was not qualified to offer expert testimony on several issues, including the speed of impact during the collision, the change in velocity of the Plaintiff’s vehicle, the effect of the collision on the Plaintiff, and the Plaintiff’s injuries. Specifically, they claimed that Bourdage was not a medical expert and, therefore, should not have been permitted to testify about the Plaintiff’s injuries or their causes. Moreover, they contended that he lacked the necessary engineering background to provide biomechanical opinions.

    In addition, the Defendants moved to exclude Bourdage’s opinions entirely, asserting that his conclusions were not sufficiently connected to the facts of the case and would not assist the jury in resolving any factual disputes. Furthermore, they challenged the reliability of Bourdage’s methodology.

    After reviewing Bourdage’s CV and expert report, the Court found that the Defendants’ concerns were more appropriately addressed through cross-examination. Accordingly, Bourdage was permitted to present the opinions set forth in his report regarding how rear-end collisions could cause injuries, along with the general mechanisms and contributing factors involved in such injuries. However, because Bourdage was not a medical doctor, the Court ruled that he could not—and would not—be allowed to testify about the specific injuries the Plaintiff may have suffered in this collision.

    Held

    To begin with, all rulings by this Court on Daubert motions are preliminary in nature. The Court’s rulings are subject to change based on the evidence and testimony presented during trial.

    • The Court denied the Defendants’ motion to exclude the testimony of Brooke Liggett.
    • The Defendants’ motion to exclude the testimony of Dr. Brett Miller was denied as moot.
    • The Court denied the Defendants’ motion to exclude the testimony of Brendan Bourdage, PhD.

    Key Takeaways:

    1. There is nothing in the record to suggest that Liggett has any opinion about causation or any vocational opinions. Liggett may testify as an accountant relying on other admissible testimony.
    1. Bourdage is not a medical doctor and cannot, and will not, be allowed to testify as to what injuries this Plaintiff actually suffered in this collision.

    Case Details:

    Case Caption: Breuil Et Al V. White Et Al
    Docket Number: 3:23cv5048
    Court Name: United States District Court, Missouri Western
    Order Date: June 17, 2025
  • Mechanical Engineering Expert’s Opinion on Alleged Manufacturing Defect in Accident Ladder Excluded

    Mechanical Engineering Expert’s Opinion on Alleged Manufacturing Defect in Accident Ladder Excluded

    In this products liability action, Plaintiff Joshua Cleaveland sued Defendants Tricam Industries, Inc. and Home Depot USA Inc. after he fell from a Tricam model GLX-5B ladder on August 26, 2021. The ladder was manufactured by Tricam and purchased from Home Depot. According to Plaintiff, he was injured because the ladder was defective.

    Defendants filed a motion to exclude the testimony of Plaintiff’s expert, Dr.
    Jonathan Slocum.

    Mechanical Engineering Expert Witness

    Jonathan Slocum is a mechanical engineer who earned his bachelor’s degree in 2014, master’s degree in 2015, and doctorate in 2018 in mechanical engineering from the Massachusetts Institute of Technology.

    He worked at Materials and Engineering Group LLC from 2017 to 2022 as a senior consultant, where he provided forensic and design consulting and failure analysis. Since 2020, his company LTAG Systems, LLC has been developing technology and devices for the United States Department of Defense.

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

    Discussion by the Court

    Defendants filed a motion to exclude Slocum’s expert testimony on the grounds that Slocum is not qualified to opine on ladder defects and design and causation, and his expert testimony is unreliable and speculative.

    Initial Matters

    The Court first addressed whether Plaintiff may rely on the First Slocum Affidavit to respond to Defendants’ motion to exclude.

    The Court concluded that Plaintiff may offer the First Slocum Affidavit to defend the principles and methodology used by Slocum in his initial report.

    To the extent that the Plaintiff attempted to use the First Slocum Affidavit to further explain Slocum’s qualifications as an expert in this case, the disclosure was untimely. Under Rule 26(a)(2)(B)(iv), Slocum was required to include all relevant qualifications in his initial expert report. As a result, the Court excluded certain parts of the First Slocum Affidavit.

    Slocum’s Qualifications

    The Court rejected Defendants’ argument that Slocum is unqualified to render an opinion in this case because he has never provided testimony specific to ladder design or accidents, has never designed a ladder or worked in the ladder industry, has no experience researching or addressing the causes of ladder-related accidents, and has never participated in any relevant committees that address ladder safety issues. While it is true that Slocum’s curriculum vitae indicated that he had little to no experience specific to ladder design and ladder-related accidents, his extensive education and professional background in mechanical engineering and metallurgy demonstrated that he is qualified to opine on whether the aluminum ladder in this case was defectively designed and manufactured.

    Reliability of Slocum’s Testimony

    First, the Plaintiff has failed to show that a simple visual inspection is a reliable methodology from which to draw conclusions about whether the ladder suffered from a manufacturing or design defect. While Slocum himself claimed, without proof, that his methodology is generally accepted in the “scientific community,” the Court cannot conclude that Slocum’s methodology is reliable because the Plaintiff has not put forth any evidence or argument that visual inspection alone is a reliable methodology for assessing the causes of ladder-related accidents.

    Based on a visual examination of the accident ladder and the exemplar ladder and calculating the height/wall thickness ratio of the accident ladder’s rear rail, Slocum found “evidence of buckling at the pin joint” and “deformation of the aluminum tubing,” which he concluded to be a manufacturing defect that contributed to Plaintiff’s accident. However, Slocum provided no explanation or testing to demonstrate why the deformity at the “rear-left rail extrusion that the spreader-link pin-joint passes through” could be problematic.

    Slocum concluded that the ladder was defective in design because he found that a “side load” is applied to the ladder’s front and rear rails when a user’s weight is on one of the top two steps of the ladder, leading to deformation of the ladder’s rails and spreader links. However, Slocum did not perform any tests to determine whether Plaintiff’s position on the top step of the ladder would lead to the buckling observed on the accident ladder or to prove that the spreader link of the ladder applied both an “eccentric load” and “torsion to the tube, which would add to the overall stress it experiences when loaded.” He also did not explain how much torsion or eccentric load is acceptable.

    Held

    The Court granted Defendants’ motion to exclude Dr. Jonathan Slocum’s opinion.

    Key Takeaway:

    Rule 702 does not require expertise to be so exacting. Although Slocum’s curriculum vitae shows minimal, if any, direct experience with ladder design or ladder-related accidents, his extensive education and professional background in mechanical engineering and metallurgy support his qualification to offer an opinion on whether the aluminum ladder in question was defectively designed or manufactured.

    Case Details:

    Case Caption: Cleaveland V. Home Depot United States Inc Et Al
    Docket Number: 3:23cv1298
    Court Name: United States District Court, Connecticut
    Order Date: June 10, 2025
  • Accounting Expert’s Price Erosion Damages Opinion Admitted

    Accounting Expert’s Price Erosion Damages Opinion Admitted

    Plaintiffs Syntel Sterling Best Shores Mauritius Limited, and Syntel, Inc., (collectively, “Syntel”) initiated this action against The TriZetto Group, Inc. (“TriZetto”) and Cognizant Technology Solutions Corp. (“Cognizant,” and, collectively, “Defendants”), alleging breach of contract, intentional interference with contractual relations, and misappropriation of confidential information.

    Syntel filed a motion to exclude the price erosion damages opinion of TriZetto’s expert, Thomas W. Britven.

    Britven’s analysis proceeds in four steps: (1) estimating the average rates TriZetto would have charged absent Syntel’s challenged conduct, assuming annual increases in line with the Consumer Price Index based on Urban Consumers (“CPI”); (2) calculating the difference between projected revenue based on these rates and TriZetto’s actual revenue; (3) limiting the calculation to the six most impacted clients, and certain related clients, based on their share of revenue and (4) further narrowing the analysis work related to Facets, the product Syntel infringed, by applying the proportion of such work (70%) to TriZetto’s overall services.

    Accounting Expert Witness

    Thomas Britven has more than 30 years of experience as a financial damages consultant and trusted advisor specializing in intellectual property and complex commercial litigations.  He has served as an expert in over 600 matters.

    His long consulting career has allowed him to develop extensive expertise, including misappropriation of trade secrets, patent infringement, trademark, copyright, licensing disputes, complex financial damage analysis, breach of contract, business interruption, forensic accounting, and business valuation.

    Britven is a Certified Licensing Professional, Certified Public Accountant, Certified Valuation Analyst, Chartered Global Management Accountant, and a Certified Fraud Examiner. 

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

    Discussion by the Court

    Price Erosion

    The Court held that Britven’s methodology for determining price erosion damages was not unreliable, finding that the analysis presented a reasonable approach to estimating the hypothetical pricing absent infringing competition. The Court noted that Britven applied a benchmark TriZetto itself used for pricing and confined the impact to relevant clients and services.

    Syntel objected to Britven’s factual assumptions that (1) absent Syntel’s competition, TriZetto’s prices would have risen in tandem with the CPI and (2) 70% of TriZetto’s work is Facets-related. However, Britven based the assumptions on his interview of TriZetto’s Chief Executive Officer (“CEO”). TriZetto’s CEO stated, among other things, that (a) 70% of TriZetto’s total sales from TriZetto accounts [the parties dispute whether this is all accounts or only Facets accounts] comes from Facets services; (b) TriZetto increases its prices at the same rate as the CPI, but gave several major clients a three-year CPI holiday from annual price increases and (c) the rate reduction for major clients impacted the rest of the clientele. The Court held that the parties’ disagreement over factual assumptions “is precisely the role of cross-examination” not a basis for exclusion. 

    Price Elasticity

    The Court added that Syntel’s additional criticism that Britven’s analysis failed to address price elasticity concerned the weight, not the admissibility, of the testimony.

    Britven did address this issue by concluding, based on consumers’ past behavior, that the market was inelastic so long as TriZetto’s price increases continued to track the CPI.

    Causation

    Syntel further argued that Britven’s price erosion opinion omits any analysis of causation linking Syntel’s infringement with price erosion. However, Britven discussed the (1) the use of, and demand for the Facets platform by major healthcare players due to its complexity and customization; (2) the lack of acceptable alternatives to TriZetto before Syntel’s infringement; (3) TriZetto’s adequate staffing resources and (4) the quantified price erosion damages. Britven’s expert report explained that TriZetto and Syntel competed in a two-supplier market where one’s win is the other’s loss, which — if credited by the fact finder — established causation.

    Held

    The Court denied Syntel’s motion to exclude the price erosion theory presented by Thomas W. Britven.

    Key Takeaway:

    Although expert testimony should be excluded if it is speculative or conjectural, or if it is based on assumptions that are so unrealistic and contradictory as to suggest bad faith or to be in essence an apples and oranges comparison, other contentions that the assumptions are unfounded go to the weight, not the admissibility, of the testimony.

    Case Details:

    Case Caption: Syntel Sterling Best Shores Mauritius Limited V. The Trizetto Group, Inc. Et Al
    Docket Number: 1:15cv211
    Court Name: United States District Court, New York Southern
    Order Date: June 2, 2025
  • Testimony of Rehabilitation Expert Admitted Despite Reliance on Medical Opinions

    Testimony of Rehabilitation Expert Admitted Despite Reliance on Medical Opinions

    This is a personal-injury action arising out of a motor-vehicle accident between Plaintiff Jose Ricardo Olvera-Velazquez and Defendant Jose Hernandez De La Rosa. Defendant MVT Transportation LLC (“MVT”) has stipulated that Defendant De La Rosa was acting in the course and scope of his employment with MVT at the time of the accident.

    According to Plaintiff, his vehicle was struck by the 18-wheeler being driven by Defendant De La Rosa, causing severe injuries. Basically, this suit alleged claims of negligence against Defendant De La Rosa and claims against Defendant MVT for negligent hiring, retention, entrustment, supervision, and training of Defendant De La Rosa.

    Plaintiff has filed motions to exclude two of the Defendants’ experts, Dr. Mathew Greenston and Dr. Irmo Marini.

    Accident Reconstruction Expert Witness 

    Mathew Greenston is certified by the Accreditation Commission for Traffic Accident Reconstruction and is an emergency medicine physician. His education includes an undergraduate degree in mechanical engineering.

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

    Rehabilitation Expert Witness

    Irmo Marini obtained his PhD in rehabilitation from Auburn University and a master’s degree in clinical psychology from Lakehead University in Thunder Bay, Ontario, Canada.

    Also, he is a 2009 recipient of the National Council on Rehabilitation Education’s Distinguished Career Award in rehabilitation education, and 2010 recipient of the American Rehabilitation Counseling Association’s James F. Garrett Distinguished Career Award in rehabilitation research.

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

    Discussion by the Court

    Mathew Greenston

    The Plaintiff contended that (1) Greenston’s expected testimony included an impermissible legal conclusion; (2) portions of his expected testimony did not require an expert and are not helpful to the jury; and (3) his testimony is unreliable because he did not inspect the truck at issue.

    However, Plaintiff did not contend that Greenston is unqualified to testify. And Plaintiff has not identified problems with the reliability of the methodology he used either. Moreover, Defendants have satisfied their burden to demonstrate by a preponderance of the evidence that Greenston’s testimony is reliable. As a result, the Court held that the issues raised by the Plaintiff are matters more appropriately raised at trial with a motion in limine, through contemporaneous objection, or on cross-examination. 

    Irmo Marini

    To begin with, the Plaintiff argued that Marini impermissibly parrots the opinion of a medical doctor. However, the Court held that life planners like Marini must rely upon medical opinions to estimate the quantity of medical care someone will need over their lifetime. Significantly, it is undisputed that the medical doctor is expected to testify at trial to the opinions relied upon by Marini. 

    Therefore, the Court decided that Greenston and Marini should not be excluded as experts, so that the District Court is able to consider specific objections to aspects of their testimony as they arise at trial and/or through any motions in limine.

    Held

    In conclusion, the Court denied without prejudice the Plaintiff’s motion to exclude Defendants’ experts Mathew Greenston and Irmo Marini.

    Key Takeaway:

    According to Rule 703, an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. Thus, life planners like Marini must rely upon medical opinions to estimate the quantity of medical care someone will need over their lifetime. 

    Case Details:

    Case Caption: Olvera-Velazquez V. Mvt Transportation LLC
    Docket Number: 5:24cv28
    Court Name: United States District Court, Texas Western
    Order Date: May 08, 2025
  • Construction Expert Not Allowed to Opine on Legal Issues Regarding Contract Formation

    Construction Expert Not Allowed to Opine on Legal Issues Regarding Contract Formation

    This is a consolidated case involving alleged improprieties in the payment and performance of certain equipment fabrication and associated work on two beef processing projects. Plaintiff asserted the following causes of action against its former employee, Michael Chapple, in relation to such work: (1) tortious interference with business expectancy; (2) tortious interference with contract; (3) civil conspiracy; (4) breach of contract with respect to Chapple’s employment agreement; (5) breach of the duty of loyalty; and (6) repayment of wages.

    Defendant Tom’s Metal Enterprises, LLC d/b/a Industrial Metal Enterprises, LLC (“IME”) retained Lin Heath. Plaintiff sought an order excluding
    testimony of Heath, that (1) consists of legal conclusions and/or (2) lacks evidentiary support.

    Construction Expert Witness

    Lin Heath is a Professional Engineer, a Certified General Contractor in the State of Florida; Certified Cost Professional; Certified Construction Contract Administrator, a Certified Forensic Claim Consultant, and a PMI Scheduling Professional.

    His 47 year career in Construction Management and Construction Engineering includes hands on administration with concentration in construction management information systems and project management.

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

    Discussion by the Court

    An issue in this case is the terms of the contract by which IME fabricated parts for Plaintiff to use in the Demkota Project. Plaintiff maintained that the agreement was for a fixed price, which IME exceeded. IME’s position is that the agreement was on a time and materials basis with no monetary limit.

    Legal Conclusion

    Heath sought to testify that the contract between Plaintiff and IME was for work on a time and materials basis.

    Whether the contract was issued on a time and materials basis is a legal question about a key term of the agreement. The Court held that Heath has no demonstrated legal expertise, let alone expertise in ascertaining what these parties intended. Moreover, the record is devoid of evidence that contracts in the meat rendering plant industry conform to particular practices or that the parties in this case were expected or intended to conform to such practices.

    Absent some such fixed points of reference in the industry, Heath’s opinions about documents and information he would expect to find or other opinions about the agreement from “a contract administration perspective” are irrelevant.

    In addition, to the extent it recites evidence about what Plaintiff did and did not do, and what IME and Plaintiff did and did not notice, what Plaintiff and Morris claim and do not claim and whether their claims are reasonable, Heath’s testimony is not necessary or helpful to the trier of fact.

    Methodology

    The Court held that Heath’s “Reasonable and Necessary Cost Study” identified no methodology or industry-wide standard from which to determine the necessity or reasonableness of the amounts which IME billed.

    Absent an identified methodology, based in science or industry-wide norms and practices, Heath’s opinion represents nothing more than an ipse dixit. Presumably, IME project documents would not confess that work was unnecessary and charges were excessive, and Heath does not explain how summarizing the project documents shows that work actually was necessary and that charges actually were reasonable.

    Held

    The Court sustained the Plaintiff’s motion to exclude the testimony of Lin Heath.

    Key Takeaway:

    The Court can provide appropriate guidance on contract law without Heath’s assistance or testimony and the forgoing facts are well within the competence of a jury unassisted by Heath’s experience in other transactions.

    Case Details:

    Case Caption: Haarslev, Inc. V. Tom’s Metal Enterprises, LLC
    Docket Number: 2:23cv2569
    Court Name: United States District Court, Kansas
    Order Date: May 21, 2025
  • Firearms & Ballistics Expert’s Observations of Glock Firearms is Relevant

    Firearms & Ballistics Expert’s Observations of Glock Firearms is Relevant

    Defendant Osman Malik Sesay (the “Defendant”) is charged in a seven-count Third Superseding Indictment. Counts Three and Four alleged that, on April 29, 2021, the Defendant possessed a Glock 26, 9mm semiautomatic pistol (“Exhibit 008”) and approximately 18 rounds of 9mm ammunition in furtherance of a drug trafficking crime. Counts Six and Seven alleged that, on July 16, 2021, the Defendant possessed several other firearms.

    The Government will have to prove that Glock firearm identified as “Exhibit 001,” installed with the conversion device identified as “Exhibit 001A,” constitutes a “machinegun.”

    During discovery, the Defendant disclosed the rebuttal report of his firearms expert Brian Luettke. 

    Luettke will opine, inter alia, that Exhibit 001A “was crudely made[,] . . . is not dimensionally correct in size to function as a machinegun conversion device[,]” and, specifically, “does not fit correctly into the rear part of [Exhibit 001’s] slide.”

    Government filed a motion to exclude Luettke’s testimony as “based on an erroneous understanding” of the statutory definition of “machinegun” and “not based on any reliable methodology.”

    Firearms & Ballistics Expert Witness

    Brian Luettke has 22 years of experience as an Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) special agent, provided instruction to ATF agents on firearms, and served in multiple supervisory positions before retiring in 2020.

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

    Discussion by the Court

    As such, the Court found that Luettke’s opinion that Exhibit 001A does not function as a machinegun conversion device is directly relevant to the offense charged in Count Six of the Third Superseding Indictment.

    Luettke determined that Exhibit 001A “is not dimensionally correct in size to function as a machinegun conversion device[,]” which tends to make it less probable that, when Exhibit 001 was possessed by Defendant, it satisfied the statutory definition of a “machinegun.” Specifically, if Luettke’s opinion is accepted, it would tend to make it less probable that Exhibit 001, with Exhibit 001A installed, “[was] designed to shoot, or [could] be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.”

    Analysis

    The Court held that Luettke’s conclusions would assist the jury in deciding whether Exhibit 001, with Exhibit 001A installed, satisfies this portion of the statutory definition of “machinegun.”

    Luettke also test fired the separate Glock firearm identified as “Exhibit 008,” installed with a conversion device identified as “Exhibit 008A.”

    The Government argued that “the statutory definition does not require that the device fire reliably.” However, Luettke’s conclusions are not based solely on the inconsistent or unreliable automatic firing of Exhibit 001. They are also based Luettke’s own observations and measurements of Exhibits 001A and 008A.

    Therefore, Luettke’s opinion may assist the jury in determining, from the totality of the evidence, whether Exhibit 001, with Exhibit 001A installed, was “designed to shoot” or could be “readily restored to shoot” in the manner of a “machinegun” when the Defendant allegedly possessed them.

    The Government argued that Luettke failed to explain how his measurements supported his conclusion. The Court disagreed. Exhibit 001A was cracked and bowed when installed in Exhibit 001 at the time SA Eisenbise received the firearm, and she had to alter Exhibit 001A in order for the device to permit automatic firing of Exhibit 001. 

    Held

    The Court denied the Government’s motion to exclude the testimony of Brian Luettke.

    Key Takeaway:

    Luettke’s observations of both Glock firearms and both conversion devices demonstrated a technical connection between the size of a machinegun conversion device and its effectiveness as a machinegun conversion device for a given firearm.

    In sum, the Court found Luettke’s opinions to be relevant and based on reliable methods.

    Case Details:

    Case Caption: United States V. Sesay
    Docket Number: 1:21cr298
    Court Name: United States District Court, Maryland
    Order Date: April 18, 2025
  • Radiology Expert Barred From Providing Testimony Related to Biomechanics

    Radiology Expert Barred From Providing Testimony Related to Biomechanics

    This automotive product liability case arises from a rear-end collision involving a 2020 Honda Odyssey (“subject vehicle”) that resulted in serious injuries to Plaintiff James Assey. On June 16, 2021, Plaintiffs James and Joan Assey were traveling in the subject vehicle on Interstate 26 near Columbia, South Carolina, at approximately 55 miles per hour when the subject vehicle was rear ended by a 2018 Dodge Charger traveling approximately 101-108 miles per hour at impact (the “subject accident”).

    Plaintiffs contended that the subject vehicle contained defects that caused or contributed to Assey’s injuries. Specifically, the subject vehicle’s occupant restraint and protection systems, including, but not limited to, its seating system, airbag system, seat belt and head restraint, failed to provide safe and reasonable protection in an allegedly foreseeable rear end collision.

    Plaintiffs originally asserted claims for strict liability (design and manufacturing defect), negligence (design and manufacturing defect), negligent failure to warn, and loss of consortium.

    Defendant filed motions to exclude the expert testimony of Michael Markushewski and Bruce Distell.

    Accident Reconstruction Expert Witness

    Michael Markushewski has extensive experience in crashworthiness, occupant crash protection, emergency escape, crash safety and survival, and life support engineering. His career has focused on the research, design, testing and evaluation of vehicular and aircraft seating systems, seat belt restraint systems, inflatable restraints, ejection seats, crashworthy seating systems and protective devices.

    He is co-inventor of two (2) patents addressing occupant crash protection devices and seat design.

    Over his career Markushewski has been lead investigator and crash reconstructionist in the evaluation of occupant protection system performance in military and civilian aircraft and automotive ground vehicle mishaps to determine the mechanisms of injury. He has worked with the U.S. Army in the development of advanced seating and restraint systems to protect soldiers from mine-blast related injuries. He has also worked with the National Hockey League to research, develop and test designs to improve player safety.

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

    Radiology Expert Witness

    Bruce Distell is a board-certified diagnostic radiologist with fellowship training in body, spine, and orthopedic imaging. He graduated from Muhlenberg College in 1982 with a B.S. degree and from the University of Pennsylvania School of Medicine in 1986. He completed his radiology residency and fellowships at Duke University and is currently the Section Chief of the Department of Radiology at Cape Fear Valley Health Systems and the Academic Department Chair of the Methodist University Cape Fear Valley Medical School. Distell is also an assistant professor at the Campbell University School of Osteopathic Medicine. According to Distell’s report, 90% of his time is spent on clinical work, such as reading x-rays, CTs, MRIs, and other imaging modalities, and 10% of his time is dedicated to teaching and administrative duties.

    Want to know more about the challenges Bruce Distell has faced? Get the full details with our Challenge Study report

    Discussion by the Court

    Motion to Exclude the Expert Testimony of Michael Markushewski

    Defendant argued that Markushewski’s opinions failed to meet the reliability requirements of Rule 702 because he relied on data about seat belt performance during 35-mile-per-hour frontal impact barrier crash tests using a fifteenth percentile dummy, and the accident was a rear-impact collision involving a larger than fiftieth percentile driver.

    According to Defendant, these “substantial differences render Markuskewski’s opinions speculative and unreliable.”

    The Court concluded that the issues Defendant raises regarding Markushewski’s methodology are fodder for cross examination and did not render Markushewski’s opinions unreliable.

    Motion to Exclude the Expert Testimony of Bruce Distell, M.D. Regarding Biomechanics

    Defendant contended that Distell’s report is an improper rebuttal opinion under Rule 26(a)(2)(D)(ii) of the Federal Rules of Civil Procedure and, furthermore, argued alternatively that Distell is not qualified to give expert opinions related to biomechanics.

    Regarding the timeline, despite a July 12, 2024 deadline for identifying expert witnesses, the Plaintiffs identified Distell on September 18, 2024.
    In contrast, Defendant’s expert had reviewed Assey’s medical imaging and concluded that Assey had pre-existing conditions that placed him at an increased risk of spinal injury and that there was no evidence of a hyperextension injury to the deep flexor muscles of his upper thoracic spine.
    However, Distell rebutted these conclusions by opining that Assey’s underlying spinal morphology would not have placed him in a higher risk category to suffer this type of injury, and also opined that Assey would not have sustained injuries but for his lower thoracic spine being positioned above the top of the seat back.

    Defendant argued that because he is a diagnostic radiologist trained in interpreting medical images, Distell is not qualified as a biomechanic to testify regarding the causal impact of Assey’s position within the Subject Vehicle.

    As a result, the Court concluded that Distell’s opinion that Assey would not have been injured but for his lower thoracic spine being positioned above the top of the seat back is an improper rebuttal opinion. Moreover, even if this improper rebuttal opinion was not prejudicial to Defendant, as Plaintiffs argue, the Court agreed with Defendant that Plaintiffs have not shown that Distell is qualified to offer an opinion on biomechanics.

    Furthermore, beyond the conclusory argument that Distell’s training as a diagnostic radiologist qualifies him to testify as to causation, Plaintiffs have not shown that Distell has the knowledge, skill, experience, training, or education to provide opinions in biomechanics.

    Held

    • The Court denied Defendant’s motion to exclude the testimony of Michael Markushewski.
    • The Court granted Defendant’s motion to exclude the testimony of Bruce Distell.

    Key Takeaways:

    1. First, Distell is not a biomechanic, and furthermore does not have experience in designing a motor vehicle. Therefore, Plaintiffs have not shown that Distell has the knowledge, skill, experience, training, or education to provide opinions in biomechanics.
    2. Markushewski’s testimony should “be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.”

    Case Details:

    Case Caption: Assey Et Al V. American Honda Motor Co., Inc.
    Docket Number: 3:22cv2647
    Court Name: United States District Court, South Carolina
    Order Date: April 18, 2025