The present lawsuitrevolves around Plaintiff Van Aelsytn’s claims of civil rights violations and malicious prosecution against Defendants Coleman Sparks and Scott Carnes. Both Defendants were officers with the Versailles Police Department and were involved in an investigation that led to domestic violence charges against Van Aelsytn. However, the Plaintiff possessed evidence suggesting his innocence. The parties disagreed over whether the Defendants received and reviewed this evidence properly. Van Aelsytn was arrested, and the case went before a grand jury, which ultimately decided not to indict him.
The Defendants intended to call Assistant Chief Robert Young of the Versailles Police Department as a rebuttal law enforcement expert witness. Young was expected to testify that the Defendants’ actions during the investigation aligned with Kentucky law and the U.S. Constitution.
Law Enforcement Expert Witness
Robert Young currently serves as the Assistant Chief at the Versailles Police Department. He is a retired special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
Van Aelstyn argued that allowing Robert Young to testify about the Defendants’ actions being legal or “consistent with Kentucky law and the United States Constitution” would have been an improper “legal conclusion.” He believed this testimony would have been flagrant and inappropriate.
In response, the Defendants clarified that Young would not offer legal conclusions in his testimony. They emphasized that Young would not testify whether Officers Carnes or Sparks violated the Constitution. However, they argued that Young could provide an opinion on whether the officers followed Versailles Police Department policies.
The Plaintiff replied that it was unclear if the Defendants agreed Young could not provide this testimony. However, the Plaintiff did not seek to exclude testimony about the police department’s policies.
The Court found that the parties agreed that Young’s initial proposed testimony, claiming the Defendants acted consistently with Kentucky law and the U.S. Constitution, would have been a legal conclusion. They also agreed that such a clear-cut legal conclusion would be impermissible. Accepting this assertion as true would have essentially instructed the jury that the Defendants did not violate the law.
Held
The Court granted the Plaintiff’s motion to exclude certain parts of Defendants’ law enforcement expert witness, Robert Young’s testimony. The Court held that Young could not testify about whether the Defendants’ actions were consistent with Kentucky law or the United States Constitution.
Key Takeaways:
The Court found that Young’s testimony about whether the Defendants’ actions were consistent with Kentucky law or the U.S. Constitution would constitute an impermissible legal conclusion, as it would effectively instruct the jury that the Defendants did not violate the law. This decision emphasized the need for expert testimony to avoid overstepping into legal determinations, ensuring the jury maintains its role in assessing the law’s application.
Case Details:
Case caption:
Aelstyn v. Sparks
Docket Number:
5:23cv136
Court:
United States District Court for the Eastern District of Kentucky, Central Division
Plaintiff Utah Physicians for a Healthy Environment’s (“UPHE”) alleged a number of Clean Air Act (“CAA”) and Noise Control Act (“NCA”) violations against Defendants, who are motorcycle dealerships and their owner. At summary judgment, UPHE proffered the expert testimony of Dr. Michael St. Denis. In relevant part, St. Denis opined that a “test motorcycle” purchased by UPHE for this litigation was not in compliance with the CAA’s emissions standards. However, during the air-emissions testing, background levels of hydrocarbons exceeded the federal limit authorized for such testing. Both St. Denis and the testing center admitted that the testing would have been invalid for EPA purposes. However, the testing center stated in an email that the testing data could be used for “development/comparison purposes,” though it did not explain why. Defendants moved to exclude St. Denis’ opinion related to the test motorcycle under Rule 702.
The Court granted this portion of Defendants’ motion to exclude. In particular, the Court found that UPHE had failed to show that St. Denis’s opinion reflected a reliable application of reliable principles and methods under Federal Rule of Evidence 702(d). The Court reasoned that “[b]oth St. Denis and [the testing center] admitted that the test results were invalid for EPA purposes given that the background levels of hydrocarbons exceeded 5 parts per million.” The Court then observed that “UPHE has not attempted to explain how high background levels of hydrocarbons would affect a test result, nor has it explained why the testing would be valid for comparison purposes.”
UPHE filed a motion for clarification regarding the Court’s order granting Defendants Harley-Davidson of Salt Lake City, LLC, Northern Utah Power Sports, LLC, and Joseph Timmons, Jr.’s (collectively “Defendants”) motion to exclude a portion of an expert opinion offered by Dr. Michael St. Denis.
Motion for Clarification
UPHE argued that St. Denis explained both issues in his expert report. After noting that the initial test result had high background levels of hydrocarbons, in paragraph 33 of his report, St. Denis wrote:
Elevated levels of [hydrocarbons] in the test cell have two results: 1) the concentration of [hydrocarbons] in the exhaust measured by exhaust analyzers and attributed to combustion is under-reported, and 2) the high level of [hydrocarbons] in the background air is subtracted from the level of [hydrocarbons] measured in the exhaust and artificially lowers the calculated level of emission of [hydrocarbons] from the vehicle. For these reasons, the concentration of [hydrocarbons] in the exhaust of the Test Motorcycle was under-reported. In other words, if the Test Motorcycle did not have an exhaust leak its measured [hydrocarbon] emissions would be greater.
Next, in paragraph 34, he opined that “[e]ven with the exhaust leak, the emissions of [hydrocarbons plus nitrogen oxides] in the first test were 1.49 g/km, far exceeding the vehicle’s certified level of 0.5 g/km, and the federal standard of 0.8 g/km.” UPHE pointed to the former as evidence that St. Denis did explain how high background levels of hydrocarbons would affect a test result, and to the latter as evidence that St. Denis explained why the tests were valid for comparison purposes.
Although Defendants attached St. Denis’ expert report to their Motion to Exclude, UPHE did not cite the report in its argument, let alone these particular paragraphs. Nor did UPHE respond to several of Defendants’ arguments on why St. Denis’ air emissions opinions are unreliable.
Environmental Science Expert Witness
Michael St. Denis holds a Doctorate in Environmental Science and Engineering from UCLA, a Master of Science degree in Physical Chemistry, and a Bachelor of Science degree in Chemistry. His doctoral studies were focused on reduction of air pollution and air quality impacts of various pollutants from differing sources of pollution. He has taken classes in air pollution control, air pollution dispersion modeling, human health impacts of pollutants and risk assessment focused on environmental pollutants. He performed air pollution modeling and worked on air quality impact and improvement plans.
Although it is titled a motion for clarification, the Court noted that it more closely resembles a motion for reconsideration, particularly given that UPHE states in its Reply (for the first time) that it relies on Federal Rule of Civil Procedure 54(b).
Under Federal Rule of Civil Procedure 54(b), an interlocutory decision can be “revised at any time before the entry of a final judgment adjudicating all the claims.” The Court “is not bound by the strict standards for altering or amending a judgment under Federal Rules of Civil Procedure 59(e) and 60(b),” but the basic assessment for reconsideration remains the same. The Court may grant reconsideration based on the availability of new evidence, an intervening change in the controlling law, or the need to correct clear error or prevent manifest injustice. In other words, it is only appropriate in “extraordinary circumstances” when “the Court has misapprehended the facts, a party’s position, or the controlling law.”
Analysis
UPHE does not state which ground for reconsideration could apply. Nonetheless, it is clear that there is no new evidence or change in controlling law, nor was there clear error. Therefore, the only potential ground for reconsideration would be to prevent manifest injustice.
The Court first notes that a motion for reconsideration is improper when used to “revisit issues already addressed or advance arguments that could have been raised in prior briefing.” As such, the Court could deny the motion for failing to cite the pertinent paragraphs of St. Denis’s report or otherwise argue these issues in its briefing. After all, “[p]arties should make all arguments accessible to the Court, ‘rather than ask [the Court] to play archaeologist with the record.’” Yet, it is also true that St. Denis’s report was in the record, was relatively short—spanning just 16 pages—and at least briefly discussed the subject at issue. Moreover, Defendants attached the report as an exhibit to their motion to exclude, and Defendants cannot argue they were unaware of the report’s assertions.
Accordingly, if it were a simple matter of one missing citation, the Court might be inclined to reconsider its holding. But the deficiency here is more than that. UPHE bears the burden of demonstrating that its proffered expert’s opinions meet the Rule 702 standard. Here, UPHE failed to adequately show that these particular opinions reflect a reliable application of reliable principles and methods.
UPHE bears the burden to show it is more likely than not that St. Denis’s opinions reflect a reliable application of reliable principles and methods
Assuming without deciding that (i) the method of subtracting background hydrocarbons from the hydrocarbons measured in the exhaust is reliable generally and (ii) a test with background levels of hydrocarbons exceeding 5 parts per million is not necessarily invalid for comparison purposes, these statements are still not fully responsive to Defendants’ reliability arguments in their Motion to Exclude. For example, Defendants point out that St. Denis initially calculated emissions based on four tests (three of which were included in the average), then updated the chart to reflect eight tests, excluded some of these tests based on incorrect data, and revised total emissions downwards by more than ten percent. Of these eight attempted emissions tests, the average background hydrocarbon concentration varied widely, ranging from 5.46 ppm to 17.89 ppm.
Further, Defendants argued that the testing was invalid because SGS Environmental Testing Center in Columbus, Indiana (“SGS”) collected data from the motorcycle after it had been driven for about 100 miles, instead of after its break-in period of 4,000 miles used for initial compliance emissions testing. Defendants also argued that the comparison is not reliable because the motorcycle was not in the same condition as it was when it left Defendants’ custody. Specifically, SGS partially disassembled the motorcycle to weld the exhaust system from the inside to fix the exhaust leak and clamped aluminum foil over the muffler and exhaust pipe. SGS itself stated that it “remain[ed] concerned about the modifications and the mileage on the vehicle for what [St. Denis] want[ed] to do with the results.”
Motions for Reconsideration Are Generally Not Proper to “Advance Arguments that could have been raised in Prior Briefing”
St. Denis does not address these concerns in his report, and UPHE did not respond to these arguments in its briefing. UPHE bears the burden to show it is more likely than not that St. Denis’s opinions reflect a reliable application of reliable principles and methods. By failing to respond to these arguments, UPHE did not meet that burden. As such, the Court cannot conclude that St. Denis’s excluded opinions are reliable even given the brief discussion in paragraphs 33 and 34 of his report. And as the Court noted earlier, motions for reconsideration are generally not proper to “advance arguments that could have been raised in prior briefing.” In short, the excluded opinions might be reliable, but UPHE, the proponent of this evidence, failed to show that they are.
Held
The Court denied UPHE’s motion for clarification.
Key Takeaway:
UPHE bears the burden to show it is more likely than not that St. Denis’s opinions reflect a reliable application of reliable principles and methods. By failing to respond to Defendants’ reliability arguments in their motion to exclude, UPHE did not meet that burden. Basically, motions for reconsideration are generally not proper to “advance arguments that could have been raised in prior briefing.” In short, the excluded opinions might be reliable, but UPHE, the proponent of this evidence, failed to show that they are.
Case Details:
Case Caption:
Utah Physicians For A Healthy Environment V. Harley-Davidson Of Salt Lake City Et Al
This case arises out of the shooting of Plaintiff Jake L. Sheeler (“Plaintiff”) on September 25, 2020 by officers of the Pocatello Police Department.
Plaintiff Jake Sheeler was on the run from the police at the time that he was shot. He stole a Taurus Judge (a .45 caliber handgun) from a resident of Pocatello, Kirk Hendricks. Plaintiff then threatened Mr. Hendricks, his wife Mary Hendricks, and their neighbor Mr. Richard Hernandez with the Taurus Judge before he fled.
Officers Eldridge and McArthur finally located Plaintiff and gave him commands to surrender. Plaintiff ignored the commands that he was given and shouted “I gotta gun!” and “back up!” at Eldridge and McArthur. Officers McArthur and Eldridge reacted to this threat to themselves and to others in the area by shooting Plaintiff.
When Sheeler initiated this lawsuit against Defendants, Defendants moved for summary judgment on all of Sheeler’s claims. Sheeler opposed Defendants’ summary judgment motion and filed a motion to exclude their expert Durant Begault’s testimony.
Audio Engineering Expert Witness
Durant R. Begault is an expert in “audio-video media authentication, voice identification, enhancement of audio-video media, audibility of speech and warning signals, recorded gunshot analysis, and forensic musicology.”
He is a research scientist specializing in psychoacoustics, human factors, multimodal systems, and communications engineering. In 2002, Durand Begault bagged the Audio Engineering Society Fellowship Award for his many contributions.
Defendant retained Begault mainly to enhance and interpret the footage from Officer McArthur’s bodycam.
Begault’s audio enhancement was not reliable
Sheeler raised four challenges to Begault. First, Sheeler argued Begault’s audio enhancement was not reliable. In support, he noted Begault “did not disclose metadata nor hash values of the recordings” or “the software, equipment, or import settings, features or expert setting used to create and export the video.”
Sheeler contended that, without this information, Begault’s results cannot be replicated, verified, or shown to be reliable. In support, Sheeler cited the deposition testimony of his rebuttal expert, who reported he cannot duplicate Begault’s results without the missing information.
The Court held that Sheeler cited no legal authority in support of his assertion that an expert’s work is inherently unreliable if it cannot be verified through duplication.
Although Begault offered at his deposition on January 3, 2024, to provide Sheeler with the information, Sheeler responded that offer came after the expert disclosure deadlines.
The Court held that Defendants timely disclosed the report at least by October 2, the deadline for Defendants’ expert disclosures. Sheeler’s rebuttal deadline was not until October 16. Based on this timeline, Sheeler could have requested the information his rebuttal expert needed for purposes of attempting to duplicate Begault’s work before the rebuttal deadline.
Begault did not perform any measurements
Second, Sheeler challenged Begault’s opinion that Sheeler, not an officer, can be heard saying “back up” on the bodycam footage. Sheeler claims this opinion “depends solely upon distances of the various officers at the time of the shooting” and “Begault did not perform any measurements [but rather] relied on estimates provided by Defendants’ counsel.”
According to Rule 702, an expert may rely on assumptions when formulating his opinions.That Begault did not himself perform the measurements and relied on counsel to provide him that information is not a basis to exclude his opinions. The Court held that Begault assumed the accuracy of the measurements counsel provided him. The Court refused to exclude Begault’s testimony simply because he relied on assumptions Defendants’ counsel provided.
Begault’s opinions regarding what the footage reveals
Sheeler’s third and fourth challenges relate to Begault’s opinions about what can be heard on the enhanced audio of the bodycam footage. Sheeler claimed Begault admitted that “he has no greater ability than the jury to listen to the enhanced audio,” admitted that “he made no attempt to decipher any commands given to Sheeler,” and yet offered an opinion that “Sheeler did not comply with commands.”
The Court could not exclude Begault’s opinions regarding what the footage reveals without a more detailed analysis of the specific opinions Sheeler sought to exclude.
The Court granted in part and denied in part the Defendants’ motion for summary judgment.
Held
The Court denied without prejudice Plaintiff’s motion to exclude or limit the testimony of Durand R. Begault.
Key Takeaways:
First, Sheeler cited no legal authority in support of his assertion that an expert’s work is inherently unreliable if it cannot be verified through duplication.
Second, the Court refused to exclude Begault’s opinions just because he did not himself perform the measurements and relied on counsel to provide him that information. An expert may rely on assumptions when formulating his opinions.
Case Details:
Case Caption:
Sheeler V. Eldridge, Et Al
Docket Number:
4:22cv313
Court:
United States District Court for the District of Idaho
The Trade Group’s (“TTG”) is a full-service event marketing and creative design firm well known for its award-winning designs and client-centered service mentality. BTC Media, LLC (“BTCM”), a Bitcoin and blockchain media company approached TTG about managing, planning, and producing Bitcoin 2021, the world’s largest bitcoin conference held in Miami, Florida.
After a successful Bitcoin 2021, BTCM enlisted TTG’s services again in connection with Bitcoin 2022, but on a much larger scale. This case centers around a dispute between TTG and BTC over the financial ramifications of their business interactions, particularly surrounding the Bitcoin 2022 event. At the heart are disagreements over alleged overcharges and lost profits in planning and hosting Bitcoin 2022 in Miami.
Gary Durham has been assisting clients with economic damages calculations, valuation, forensic accounting, financial forecasting, and financial issues in bankruptcy since 1993. Durham’s considerable experience preparing expert witness testimony includes damage calculations and other valuation-related financial analysis.
Dr. Kelly Martinez Semrad, currently serves as a faculty member at the University of Central Florida (UCF) in the Rosen College of Hospitality Management. She is the former associate director for the University of Florida’s Eric Friedheim Tourism Institute. She has also helped provide policy for tax reform and economic structural adaptations as well legislation for social and environmental justice in the tourism and hospitality industry.
David Baileyis an early bitcoin adopter, entrepreneur, and a prominent figure in the Bitcoin community. He is also the CEO of BTC Media, which includes Bitcoin Magazine and the Bitcoin conference, as well as UTXO.
Didier Lewis is the Finance Director of BTC Media, LLC (“BTC”). As Finance Director, he also has oversight of BTC’s finances, including its accounts receivable, accounts payable, and invoices payable to BTC’s vendors.
TTG sought to exclude Durham’s testimony on the grounds that it was unreliable and irrelevant.
According to TTG, Durham’s opinions were based on incomplete information given Durham’s role was to verify the costs TTG claims it incurred and to assess the reasonableness of those costs. Although Durham had multiple opportunities to review TTG’s documents, TTG argued that he failed to accurately compile the costs, thereby rendering his opinions unreliable.
The Court found that while Durham’s methodology, like most, could have possessed flaws, it was sufficiently reliable for the purposes of expert testimony. Durham reviewed numerous documents and provided a detailed analysis of the costs and markups. His methodology involved a thorough examination of TTG’s invoices and other financial records, and he explained the basis for his conclusions. Any perceived deficiencies in his methodology went to the weight of his testimony, not its admissibility.
The Court held that highlighting the potential disconnect between TTG’s Google Sheet entries and the underlying accounting documents was vital because it could suggest TTG’s billing practices may have been designed to obscure true charges. This made Durham’s testimony all the more reliable and relevant.
B. Kelly Semrad
TTG sought to exclude the testimony of Semrad on the grounds that it was unreliable and irrelevant. TTG argued that Semrad’s opinions were based on insufficient facts and data, and that she lacked the necessary expertise to opine on the reasonableness of TTG’s markups. Despite Semrad admitting that she did not have access to certain critical information, the Court held that her testimony was particularly relevant because it set a benchmark for evaluating TTG’s markups for Bitcoin 2022.
By comparing TTG’s charges with industry standards, Semrad provided a clear framework for the jury to assess whether TTG’s pricing was reasonable. Her testimony offered the jury a critical reference point for determining if TTG’s practices deviated from industry norms.
The Court found that her analysis was based on sufficient data and reliable principles, aligning with the requirements of Rule 702.
C.David Bailey and Didier Lewis
TTG sought to exclude the expert testimony of BTC’s CEO, David Bailey, and CFO, Didier Lewis, on the grounds that Bailey and Lewis were untimely disclosed.
Appealing to Federal Rule of Civil Procedure 37(c)(1), TTG argued that BTC’s failure to timely disclose these expert witnesses was neither substantially justified nor harmless, warranting exclusion of their testimony.
Further, TTG opined that BTC made multiple representations to the Court that they did not seek to designate experts for their counterclaims, the absence of a request to extend the Initial Designation deadline was prejudicial to TTG given their late disclosure.
However, BTC has consistently maintained that Bailey and Lewis will offer lay opinions under Federal Rule of Evidence 701, which allows business owners or officers to testify about the value or projected profits of their business based on personal knowledge. Both Bailey and Lewis have extensive firsthand knowledge of BTC’s financial operations and can provide valuable insights into the company’s lost profits.
TTG did not dispute Bailey and Lewis’ knowledge of the company’s finances but contended that their testimony constituted expert opinion requiring timely disclosure under Rule 26(a)(2). However, BTC supplemented their disclosures to include Bailey and Lewis as expert witnesses under Rule 702, likely anticipating potential objections from TTG.
The Court held that any prejudice to TTG was minimal, given their extensive personal knowledge and the supplemental disclosures.
Held
The Court denied that The Trade Group’s three motions to exclude the testimony of BTC CEO David Bailey and CFO Didier Lewis as well as Dr. Kelly Semrad and Gary Durham.
Key Takeaways:
The Court found Durham’s methodology sufficiently reliable because he reviewed numerous documents and provided a detailed analysis of the costs and markups.
Semrad’s testimony offered the jury a critical reference point for determining if TTG’s practices deviated from industry norms. The Court held that her testimony met the requirements of Rule 702.
The Court held that both Bailey and Lewis’ extensive firsthand knowledge of BTC’s financial operations will assist the jury in understanding the financial impact of the alleged damages and are therefore admissible.
This lawsuit arises from the State of Missouri enacting a law forbidding pharmacists from contacting a prescribing doctor or patient “to dispute the efficacy of ivermectin tablets or hydroxychloroquine sulfate tablets for human use” unless the doctor or patient asks the pharmacist about these drugs’ efficacy first. A pharmacist who violates the statute by alerting a doctor or patient that the FDA has not approved either drug to treat a particular disease may be professionally disciplined, including potentially losing her license. But a pharmacist who on her own initiative contacts a doctor or patient to tout the efficacy of either drug for a purpose the FDA has not approved faces no such sanction. Plaintiff, a pharmacist, contended that the statute violated the First Amendment.
Dennis K. McAllister is a pharmacist Defendants have retained to offer expert testimony. After reviewing McAllister’s expert report, Plaintiff filed a motion to exclude his opinions that offered legal opinion and legal analysis.
It is his opinion that the societal interests at stake include protecting the prescriberpatient relationship, guarding the public from possible harassment, ensuring appropriate professional competence from pharmacists, and promoting public trust in the pharmacy profession and the practice of medicine.
The prescriber-patient relationship requires individual assessment and personalized care after examination by a doctor or medical professional. This relationship involves a level of time, trust, and sharing of information that is critical for society and the health of individual patients. According to McAllister, the statute protects this relationship by limiting the way pharmacists may interact with patients or doctors.
Pharmacy Expert Witness
Dennis K. McAllister is the founder of McAllisteRx Consulting LLC. He has been Director of Pharmacy in three hospitals. He is consultant and expert with years of experience in the areas of pharmacy standard of care, negligence, pharmacy laws and regulations, pharmacy automation and development of innovative practice models.
McAllister served on the Arizona State Board of Pharmacy for 23 years, and as its president four times. Moreover, he served on the Executive Committee of the National Association of Boards of Pharmacy (NABP) for 6 years, and as its president in 2005-2006.
In response, Defendants extolled McAllister’s expert qualifications as a pharmacist and noted that it is permissible for an expert to opine on industry standards and practices.
But Defendants did not dispute that Eighth Circuit law prohibits a pharmacist from interpreting statutes or offering legal opinions and analysis. Nor could they, because it is firmly established that an expert may not testify as to legal issues or express legal opinions.
Held
The Court granted Plaintiff’s motion to exclude McAllister ‘s opinions. The Court barred McAllister from testifying that : (1) the statute protects the prescriber-patient relationship by “limiting the way pharmacists may interact with patients or doctors;” (2) “the statute identifies an area where” the goal of public trust in pharmacists “may be furthered;” or (3) “the law furthers the important societal interests and interests of the profession of ensuring accurate, reliable, consistent, and authoritative information is conveyed, protecting the prescriber-patient relationship, ensuring appropriate professional competence for pharmacists, and promoting public trust in the pharmacy profession and the practice of medicine.”
Key Takeaway:
Expert testimony on legal matters is not admissible because matters of law are for the trial judge. In other words, a district court may exclude the testimony of an expert if it finds that such testimony constitutes an impermissible instruction on the law.
A district judge in Arkansas allowed an expert librarian to testify about how American Library Association (“ALA”) cataloging policies attempt to accommodate a variety of concerns and interests.
Plaintiffs and their minor children are residents of Crawford County and users of its Library System. In late 2022 or early 2023 the Crawford County Library System implemented a policy under which its library branches must remove from their children’s sections all books containing LGBTQ themes, affix a prominent color label to those books, and place them in a newly-created section called the “social section.” Plaintiffs alleged this policy was imposed on the Library System by the Crawford County Quorum Court in response to political pressure from constituents who objected, at least partly on religious grounds, to the presence of these books in the children’s section.
On May 26, 2023, Plaintiffs filed this lawsuit against Crawford County, claiming that the aforementioned policy violated the First Amendment to the United States Constitution.
Plaintiffs retained an expert witness named Daniel N. Joudrey, who is a professor of information organization and cataloging at the Simmons University School of Library and Information Science. Joudrey submitted an expert report that discussed the Cataloging Code of Ethics and the ALA’s Bill of Rights, and opined that Defendants’ actions were inconsistent with those standards as well as with the historical practices and understandings of libraries.
Daniel N. Joudrey is a Professor at Simmons University School of Library and Information Science, where he teaches information organization and cataloging. Prior to coming to Simmons, Joudrey was a teaching fellow and research assistant at the University of Pittsburgh for Dr. Arlene G. Taylor, a well-known cataloging authority. Joudrey was also a metadata policy intern at the Library of Congress. Before that, he worked for an international non-profit social services organization. Joudrey holds a Ph.D. and an MLIS (Master of Library and Information Science) from the University of Pittsburgh. He has been a member of the American Library Association for nearly 25 years.
He is the author of two widely used textbooks in the LIS field, The Organization of Information and Introduction to Cataloging and Classfication.
Joudrey opined that a library “wanting to operate consistently with First Amendment principles and allow its patrons to receive information without unnecessary impediment should follow the Cataloging Code of Ethics and American Library Association’s Bill of Rights.”
Defendants contended that Joudrey’s testimony did not satisfy any of the four Rule 702 requirements.
Joudrey’s specialized knowledge will not help the Court to understand the evidence or to determine a fact in issue
First, Defendants argued that Joudrey’s specialized knowledge will not help the Court to understand the evidence or to determine a fact in issue. The Court disagreed, and believed that expert testimony about library cataloging industry standards is more likely than not to help it understand the evidence in this case. After all, the central issues and disputes in this case concerned Defendants’ library cataloging practices, whether or to what extent those practices interfered with Plaintiffs’ First Amendment right to access information, and how (if at all) the Court should order Defendants to modify those library cataloging practices.
Joudrey’s opinions were not based on sufficient facts
Second, Defendants argued that Joudrey’s opinions were not based on sufficient facts, because he simply assumed the truth of facts given to him by Plaintiffs’ counsel instead of independently investigating the facts on his own. Setting aside the (disputed) question of whether Joudrey performed any independent factual investigation, this argument ignored the United States Supreme Court’s observation that “more than 200 years” of “settled evidence law” allows an expert to “express an opinion that is based on facts that the expert assumes, but does not know, to be true.” See Williams v. Illinois, 567 U.S. 50, 57, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012).
When an expert bases his opinion on assumed facts, then “it is up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert.” Indeed, the Federal Rules of Evidence expressly permitted this practice, authorizing an expert to “base an opinion on facts or data in the case that” he has either “personally observed” or “been made aware of.” So the Court disagreed with Defendants on this point as well.
Defendants argued that Joudrey’s opinions are not the product of reliable principles and methods
Third, Defendants argued that Joudrey’s opinions are not the product of reliable principles and methods. To some extent, Defendants rehashed their argument about insufficient factual investigation to support this point as well; to that same extent, the Court disagreed as already stated above.
Additionally, Defendants characterized Joudrey’s opinion as being that “the only way to ‘operate consistently with First Amendment principles and allow its patrons to receive information’ is to follow the ALA’s policies,” and they criticized him for failing to “explain why the ALA policies are the only way to comply with the First Amendment.” The Court did not believe this to be an accurate characterization of Joudrey’s opinions. The Court reviewed Joudrey’s expert report and his deposition testimony, and did not find any place where he opined that compliance with ALA policies is the “only” way to comply with the First Amendment. Rather, he opined that if a library wants to operate consistently with First Amendment principles, then it “should” adhere to ALA cataloging policies.
Joudrey’s opinion is not that following ALA policies is the only way of complying with the First Amendment; rather, it is that following ALA policies serves a variety of salutary goals, including “aligning with First Amendment principles.”
Joudrey’s opinions do not reflect a reliable application of his principles and methods to the facts of the case
Finally, Defendants argued that Joudrey’s opinions did not reflect a reliable application of his principles and methods to the facts of the case.
This particular argument rested on two premises. One is that Joudrey walked back a couple of his opinions when pressed on them during his deposition. The other is that Joudrey improperly expressed a legal conclusion when he opined that libraries wishing to comply with the First Amendment should follow ALA policies. As for the first premise, the Court did not see this as undermining Joudrey’s reliability. To the contrary, it showed a willingness to acknowledge when one misspeaks and to adjust one’s opinions to account for new information. As for the latter premise, the Court already rejected it in the preceding two paragraphs.
Held
Ultimately, if this case proceeds to a bench trial then it will be the Court’s duty to consider all the evidence, including Joudrey’s testimony, and assign it the weight the Court believes it deserves. The Court sees no need to exercise its discretion now in a manner that would preemptively tie its own hands later. For all the foregoing reasons, Defendants’ motion to exclude Joudrey’s testimony will be denied.
Key Takeaway:
The Court reviewed Joudrey’s expert report and his deposition testimony, and did not find any place where he opined that compliance with ALA policies is the “only” way to comply with the First Amendment. Rather, he opined that if a library wants to operate consistently with First Amendment principles, then it “should” adhere to ALA cataloging policies. When elaborating on this opinion in his deposition, Joudrey explained: “I thought that if they were operating consistently within these documents . . . that it would result in libraries still having the latitude to organize their materials by creating special displays” and “would result in, you know, following general principles of the profession which align with First Amendment principles, . . . and it would align with how a trained librarian would understand the field.”
In other words, Joudrey’s opinion is not that following ALA policies is the only way of complying with the First Amendment; rather, it is that following ALA policies serves a variety of salutary goals, including “aligning with First Amendment principles.”
To be clear, and as Joudrey repeatedly acknowledged in his deposition, he is not a lawyer and is not qualified to opine on what the law is nor on whether Defendants have complied with the law in this case. Such determinations are ultimately the prerogative of this Court. But the Court sees nothing improper about permitting expert opinion testimony regarding how ALA cataloging policies attempt to accommodate a variety of concerns and interests which bear upon a librarian’s profession, which include but are not limited to First Amendment principles. As Defendants conceded, Joudrey is “equipped to opine on the ‘best practices’ touted by the ALA.”
A district judge in New Jersey decided that a design engineering expert witness could testify about the alleged design defects of the model in question and the risks and possible outcomes of such design defects.
On August 19, 2016, William Visakay (“Visakay”) was riding his 2007 Craftsman Lawn Tractor in his backyard when it overturned and rolled, causing fuel to spill out and the lawnmower to catch on fire. After the accident, Visakay died from burn injuries. Plaintiff and her expert, Christopher Ryan, argued that there was a design defect in the lawnmower, which caused the fuel tank to become damaged when the lawnmower rolled over. Defendant and their experts claimed that Visakay had failed to properly secure the lawnmower’s gas cap, which caused the fuel to pour out of it and become ignited by a spark from an undetermined source.
The only remaining Defendant, Husqvarna Consumer Outdoor Products N.A., Inc. challenged each of the three criteria required for Ryan’s testimony to be admissible. First, HCOP contended that Ryan was not qualified to opine on the cause and origin of the fire. Second, HCOP argued that Ryan’s methodology was not sufficiently reliable to be admissible. Third, HCOP claimed that Ryan’s opinions did not fit the facts of the case.
Design Engineering Expert Witness
Christopher Ryan received his Bachelor of Science Degree in Mechanical Engineering, with an emphasis on product design, from Iowa State University. He has over 25 years of experience working with manufacturing companies, including managing prototype testing and ensuring products, including lawnmowers, meet industry safety standards. He also worked at John Deere for 19 years, where he oversaw the testing of new mowers and small tractors.
HCOP asserted that Ryan was not qualified to opine on the cause and origin of the fire because of his lack of experience with fire investigation. The Court held that HCOP’s argument, asserting that Ryan was not qualified, was unavailing. Ryan possessed the “specialized expertise” necessary to opine on the issues in this case with 20 years of experience designing products and rejecting/approving designs, including specifically with lawnmowers.
He was employed for 19 years with John Deere, where he managed the labs responsible for testing all new John Deere mowers and small tractors. Notably, Ryan worked with other manufacturers to help develop an industry testing standard to validate new plastic fuel tank designs.
Defendant’s other challenges rebuffing Ryan’s qualifications, such as its argument that other witnesses with experience in fire investigation were unable to form a reliable conclusion about the cause of the fire, were unpersuasive. The Court was satisfied that with Ryan’s extensive background and experience with lawnmowers, Ryan was qualified to provide expert testimony in this case as to the alleged defect of the lawnmower and, relatedly, the cause of the fire.
Henceforth, Ryan is qualified to opine about the alleged design defects of the lawnmower and the risks and possible outcomes of such design defects, including the flammability and explosive nature of the products.
Reliability
HCOP contended that Ryan’s methodology was not sufficiently reliable. Specifically, HCOP argued that (i) Ryan lacked sufficient facts and data to form his opinions; (ii) Ryan evaluated his product defect theory using scientifically unreliable testing; and (iii) Ryan’s theory that the fire was caused by a product defect relied on no methodology.
Ryan relied on sufficient facts and data to form his opinions
First, as described in his expert report, Ryan relied on sufficient facts and data to form his opinions: he reviewed photos from the scene, police reports, medical reports, sources with information about the mower at issue (such as the Craftsman Model Operator’s Manual) and other documents from the case. He also inspected the burned mower and summarized his findings, performed tests with exemplar mowers, and conducted a three-dimensional virtual analysis.
Ryan’s employed methodology is sufficiently reliable so that it will aid the jury in reaching accurate results
Second, Ryan’s employed methodology is “sufficiently reliable so that it will aid the jury in reaching accurate results.” After inspecting the burned mower, Ryan hypothesized that the fuel tank “would have been crushed” and that “pressurized fuel would pour out uncontrollably” due to the observed damage to the crossmember. Then, to prove his theory, he purchased and examined exemplar mowers and performed tests including a static side roll over test, a mild dynamic side roll over test, and a rearward/right side roll over test. These tests are summarized in Ryan’s expert report, and yielded results that were allegedly consistent with his inspection of the burned mower. Ryan also conducted an “engineering analysis,” which included investigation of a three-dimensional model.
HCOP also contended that Ryan’s testing did not yield the damage that he expected. Ryan’s conclusion from his engineering analysis, however, stated the opposite: “The crossmember can crush the fuel tank during impact with the ground.” This was consistent with the hypothesis he formed after his examination of the burned mower. HCOP’s arguments concerned the validity of Ryan’s conclusions—which is a determination for the jury to make after the benefit of cross-examination.
Ryan’s fire causation opinions result primarily from the same methodology detailed above
Ryan’s sufficiently reliable methodology of determining the defect in turn led to his conclusions about the fire. Notably, the Operator’s Manual explicitly stated: “Gasoline is extremely flammable and the vapors are explosive,” which reinforced Ryan’s conclusions that fuel contacting the hot engine could result in a fire. The Court found Defendant’s argument, that Ryan did not follow the National Fire Protection Association (“NFPA”) fire investigation standard, unpersuasive; NFPA standards are “merely a guide to assist fire investigators, and their provisions are nonmandatory.”
Fit
HCOP challenged the fit between Ryan’s proffered testimony and the facts of the case. Specifically, it asserted that Ryan’s opinions were not applicable to the facts of the case and did not analyze “what damage a fuel tank could experience in an overturn.”
Plaintiff has demonstrated multiple ways in which Ryan’s opinions will assist the jury. Ryan’s opinions speak to the purported design defects of the Craftsman model, which Plaintiff directly relies on for her claims. Ryan opines on the risks related to certain design choices of the lawnmower, and whether there were reasonable alternative designs that could have reduced those risks. Therefore, Ryan’s “specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue,” thus allowing for that testimony’s admissibility.
HCOP filed a motion for summary judgment concurrently with its motion to exclude Ryan’s testimony. The Court noted that genuine issues of material fact existed that precluded summary judgment considering Ryan and Defendant’s experts will present competing theories of the accident in this case.
Held
The Court denied HCOP’s motion to exclude Christopher Ryan and HCOP’s motion for summary judgment.
Key Takeaways:
The Third Circuit reads the qualification requirement broadly and interprets it liberally—a “broad range of knowledge, skills, and training qualify” as specialized expertise. Ryan has over 20 years of experience designing products and rejecting/approving designs, including specifically with lawnmowers.
Ryan’s employed methodology was “sufficiently reliable so that it will aid the jury in reaching accurate results.” His tests yielded results that were allegedly consistent with his inspection of the burned mower. Ryan also conducted an “engineering analysis,” which included investigation of a three-dimensional model.
With respect to fit, the expert’s testimony must be relevant for the purposes of the case and must assist the trier of fact by establishing a valid scientific connection to the pertinent inquiry. Plaintiff has demonstrated multiple ways in which Ryan’s opinions will assist the jury.
This case arises out of Plaintiff Mark Riley’s claim that General Motors breached a contract and express warranty to repair his 2017 GMC Acadia vehicle (“Subject Vehicle”) in a reasonable time. The 3-year/36,000-mile limited warranty that accompanied the Subject Vehicle (“Limited Warranty”) provided for repair of covered defects occurring during the warranty period, subject to certain terms, conditions and limitations, including that the owner or lessee take the vehicle to a GM authorized dealer during the warranty period and allow reasonable time for a repair. Plaintiff contended that shortly after he purchased the Subject Vehicle, he experienced a condition where, to turn off the vehicle’s accessory mode, he was required to take certain additional steps such as wiggling the shifter and moving the shifter in and out of park (the “STP condition”).
The STP condition occurred in a small minority of proposed class vehicles, and even then, manifested at different rates across vehicle models, which used shifter assemblies integrated into the different vehicles in different ways.
Plaintiff disclosed the Report and Expert Opinion of Darren Manzari on February 3, 2023 (the “Manzari Rpt.”). Manzari is Plaintiff’s sole expert in this case. Among other things, Manzari opined on whether certain shifter assemblies included in Class Vehicles were “defective.”
GM argued that this Court should exclude the testimony and opinions of Plaintiff’s expert, Darren Manzari, due to (1) Manzari’s lack of relevant “knowledge, skills, or experience” as to economics, damages, and safety and (2) the opinions’ failure to meet Rule 702 standards on account of insufficient factual underpinnings and inappropriate speculation or conclusions.
Automotive Engineering Expert Witness
Darren Manzari has worked in the automotive industry for 35 years. He graduated from Farmingdale University in 1986 with AAS Degree in Automotive Engineering. In 1998, he began a training and consulting business, ATC.
Through ATC, he provided automotive technical training and consulting to Colleges, OEM Dealerships and aftermarket automotive facilities, in New York, Massachusetts, Maryland, North Carolina, South Carolina, Georgia and Florida.
Discussion by the Court
Manzari’s diverse career and training spans different facets of the automotive industry over thirty-five years. Manzari applied this experience in his expert report, tailoring his opinions and conclusions based on a variety of relevant documents, including numerous GM statements, reports, and service bulletins to dealers, as well as documents produced by GM itself, including Plaintiffs’ vehicle service records. The Court agreed with prior evaluations of Manzari’s credentials and methodology of applying “his knowledge and experience to a review of an extensive list of relevant documents” as “sufficient to satisfy the Court’s gatekeeping function.”
Manzari’s opinions that GM took too long to diagnose and identify a repair for the Shifter Defect, and failed to cure the Shifter Defect
GM asserted that these opinions lacked scientific analysis, and instead “simply summarized GM testimony, improperly couched as his opinion,” so such opinions should be inadmissible as unreliable.
The Court found that these opinions were a result of Manzari’s interpretation of record evidence based on his relevant and qualified experience and knowledge.
Manzari’s opinions that Class Vehicles suffer from a Shifter Defect that GM did not repair during the Warranty Period
GM argued that such opinions lacked independent analysis, were unreliable, and Manzari opined on areas that were within the province of the judge (legal conclusions) and the jury (factual questions).
However, Manzari examined various documents pertaining to Plaintiff’s vehicle—including (1) GM’s warranty history for Plaintiff’s vehicle; (2) Plaintiff’s vehicle purchase records; and (3) the dealership service records for the vehicle owned by Plaintiff—as well as GM’s own documents in this action.
The Court found these opinions to be the result of a reliable methodology applied to a sufficient set of facts.
The opinions involved application of his knowledge and expertise in concluding that certain repair attempts did not actually repair the defect.
Manzari’s opinion that Class Vehicles are unsafe to drive
GM claimed that such an opinion was excludable because Manzari is not a vehicle safety expert. Manzari’s opinion that the Class Vehicles were unsafe to drive was an “ordinary purpose” opinion.
The Court held that Manzari is qualified by virtue of his knowledge and experience to testify on the functioning of the vehicles.
Manzari’s opinions that the Shifter Defect would have impacted consumers’ purchasing decisions and does impact the value of the Class Vehicles due to the cost of repair
GM objected to the “anecdotal” nature of Manzari’s opinions regarding any alleged reduction in value and any resulting consumer behaviors.
The Court held that cost of repair is the appropriate calculation for diminution in value damages, as Manzari noted, and the repair cost was in part based on GM’s records. Manzari’s citations to evidence in the record in coming to the precise number were reliable.
And, considering GM itself fronted the cost to fix this issue during the warranty period, it was reasonable to conclude that such an issue impacted the Class Vehicles’ value.
However, in concluding that “most consumers would not have purchased the Class Vehicles, or would have paid substantially less, had the problem been known to them,” Manzari started to depart from the province of what this Court viewed as his expertise, instead veering into consumer demands, with more support.
The Court held that Manzari’s report lacked evidence of “consumer reactions” or evidence beyond “his subjective opinion.”
The admissibility of Plaintiff’s only expert bore on both Defendant’s motion for summary judgment and Plaintiff’s motion for class certification. Plaintiff’s motion for class certification was granted while Defendant’s motion for summary judgment was granted in part and denied in part.
Held
The Court granted in part and denied in part GM’s motion to exclude Darren Manzari’s testimony and opinions.
Key Takeaways:
Expertise and Methodology: Manzari’s diverse career and training in the automotive industry provided a strong foundation for his expert opinions. The Court acknowledged his expertise and methodology in reviewing relevant documents and applying his knowledge and experience to reach conclusions.
Reliability of Opinions: Despite GM’s objections regarding the lack of scientific analysis and independent analysis in Manzari’s opinions, the Court found them to be reliable interpretations of record evidence based on his relevant experience and knowledge.
Qualifications for Testifying: The Court upheld Manzari’s qualifications to testify on vehicle functioning.
