Plaintiffs NetJets Aviation, Inc., NetJets Sales, Inc., and NetJets Services, Inc. brought this action for declaratory judgment. NetJets sought a declaration that Defendants Stephen G. Perlman and the Stephen G. Perlman Revocable Trust are the alter egos of RS Air, LLC, a bankrupt entity. NetJets obtained a judgment of over $1.7 million against RS Air in bankruptcy court. If NetJets is successful in this action, then Perlman and the Trust will be liable for the judgment against RS Air.
Defendants submitted the report of Terry Lloyd to resolving the alter ego claim. NetJets filed a motion to strike Lloyd’s report.
Accounting Expert Witness
Terry Lloyd is a managing director of Finance Scholars Group (“FSG”), a consultancy. He was previously a partner/managing director with BDO Seidman and Huron Consulting Group. He has been a certified public accountant (“CPA”) since 1983 and a Chartered Financial Analyst (“CFA”) since 1993. He has published and spoken to legal, accounting, and financial groups, including law schools.
He has been qualified as an expert in federal, state, tax, bankruptcy courts and arbitration venues.
Lloyd concluded his report with the opinion that “the weight of the evidence” showed that Perlman was not the alter ego of RS Air.
NetJets argued that Lloyd’s report is inadmissible because he purports to render an opinion on the ultimate issue in this case — whether Perlman was the alter ego of RS Air.
The Court agreed that Lloyd’s legal conclusions are inadmissible, and therefore will exclude them from consideration.
However, the Court denied the motion to strike the entire report because Lloyd’s report analyzed discrete factual issues, such as RS Air’s adequacy of capitalization and its observance of corporate formalities, which are relevant to the factors which must be considered in resolving an alter ego claim.
Held
The Court granted in part and denied in part NetJets’ motion to strike the testimony of Terry Lloyd.
Key Takeaway:
In addition to general legal conclusions which are considered inadmissible, Lloyd’s expert report focuses on factual, company-specific matters such as adequacy of capitalization and observance of corporate formalities and is therefore directly relevant to evaluating an “alter ego” claim.
On November 4, 2019, the Plaintiff, Cook Logistics, LLC filed a complaint alleging breach of contract for damage its cargo allegedly suffered while the Defendant, Equipment Express, Inc. transported it from Canada to Washington.
The Defendant’s expert witness, Lawrence Dull, concluded that the “damaged equipment in this case was caused by the failure of the shrink wrap used to encapsulate the equipment” and that “the failure of the shrink wrap was predictable.”
On July 15, 2022, the Defendant moved for summary judgment on all claims. The Defendant attached a one-page document it identified as a supplement to the opinion of its previously disclosed expert witness, Lawrence Dull. The Plaintiff subsequently filed a motion to strike the supplement to Dull’s report.
Packaging Expert Witness
Lawrence Dull is an IoPP Certified Packaging Professional with a B.S. and an M.S. in Packaging Technology from Michigan State University. With over twenty-five years of experience in managing technical packaging development groups, he has held positions with Eastman Kodak Company, Calgon Corporation and Syngenta Crop Protection Inc. He holds nine U.S. patents in the field of packaging and has won several awards in national packaging design competitions.
The Court set a deadline of June 1, 2022 for the Defendant to disclose its expert witnesses. The Defendant did not disclose the addendum to Dull’s report until September 30, 2022.
While Dull’s original report repeatedly noted that low temperatures affect the strength of shrink wrap, it said nothing about whether the duration of time the shrink wrap spends at low temperatures exacerbates that effect. But the addendum stated that the time that the shrink wrap spends at lower temperatures is “not important.” Since the addendum introduced a new opinion, the Court rejected the Defendant’s argument that the addendum only elaborates on Dull’s existing opinion.
The Defendant argued that it obtained the addendum to respond to a new argument the Plaintiff raised in its opposition to the summary judgment motion, but that position is belied by the fact that the addendum is dated July 14, 2022—almost two months before the Plaintiff filed its opposition brief.
Withholding the addendum until reply smells of bad faith or (at minimum) willfulness on the Defendant’s part. The Court found that this prejudiced the Plaintiff, who had no opportunity to address the addendum, effectively giving the Defendant the final say on the matter. The Defendant has not demonstrated that its failure to disclose the addendum was either justified or harmless.
Held
The Court granted the Plaintiff’s motion to strike the supplement to Lawrence Dull’s report.
Key Takeaway:
The Defendant’s argument that the addendum only elaborates on Dull’s existing opinion is not persuasive. Dull’s original report stated throughout that low temperatures affect the strength of shrink wrap. It said nothing about whether the duration of time the shrink wrap spends at low temperatures exacerbates that effect. But the addendum stated that the time that the shrink wrap spends at lower temperatures is “not important.” That is a new opinion, not an elaboration.
On March 2, 2022, President Biden instructed the Department of Justice (“DOJ”) to seize the assets of wealthy Russians as part of his administration’s response to the Russian operations in Ukraine. Specifically, the Government sought forfeiture of the M/Y Amadea, International Maritime Organization (“IMO”) No. 1012531, including all fixtures, fittings, manuals, stocks, stores, inventories, and each lifeboat, tender, and other appurtenance thereto (the “Amadea”).
Eduard Yurievich Khudainatov commissioned the building of the Amadea in or about 2012. Khudainatov put the Amadea on the market in 2018, but due to its unique style and the Covid pandemic, it never sold. In addition, Khudainatov received and rejected offers to buy the Amadea at prices he considered too low. In a civil in rem forfeiture action, the moving party—here, the government—has the burden of proof to show why the Court should order the property sold.
The government retained Captain Sean P. Meagher to opine on the M/Y Amadea and practices aboard the Amadea while Anders Åslund was engaged to shed light on the “the estimated historical and current net worth of Russian businessman Eduard Khudainatov and the business activities that generated his wealth.”
Eduard Khudainatov and Millemarin Investments, Ltd. (collectively, ‘Claimants’) sought to exclude the testimony of Anders Åslund and Sean P. Meagher. Claimants put forth arguments attacking, inter alia, the experts’ qualifications, the evidentiary basis for their opinions, and the propriety and usefulness of those opinions.
Economics Expert Witness
Anders Åslund is a leading specialist on Eastern European economies, especially Russia and Ukraine. He was a Professor of International Economics and the founding Director of the Stockholm Institute of Transition Economics at the Stockholm School of Economics from 1989-94.
Sean P. Meagher is a managing partner of Marinus Vectors, a company founded by senior professionals in maritime, intelligence, special operations, and international industries. He attended the Naval honors school Tabor Academy, pursued his undergraduate studies at the University of Massachusetts Boston, and continued his education at Massachusetts Maritime Academy.
Here, Claimants asked this Court to perform its “gatekeeping role,” by excluding the Government’s experts’ testimony. However, upon careful review of Claimants’ submissions, the Court found that Claimants’ arguments go to the weight, and not the admissibility, of the Government’s experts’ statements.
To the extent that Claimants wish to challenge the reliability of the Government’s experts, the Court held that they may do so via, inter alia, “vigorous cross-examination” and by “presenting contrary evidence.”
The proceeding for which Claimants sought to exclude these experts’ testimony is an evidentiary hearing to resolve the Government’s motion to strike for lack of standing. In this proceeding, the Court will be the factfinder; there is no jury. It is well established that, in such a proceeding, the trial court’s gatekeeping role is relaxed, and expert evidence should generally be admitted subject to a later finding by the Court that the evidence is not reliable under Rule 702.
At this point, however, the Court will reserve judgment on the substance of the arguments raised in Claimants’ motions in limine with respect to the Government’s experts.
Held
The Court denied without prejudice Claimants’ motions in limine with respect to Anders Åslund and Sean Meagher.
Key Takeaway:
Disagreements over the strength of an expert’s credentials, faults in the expert’s methodology, or the “lack of textual authority” for the expert’s opinion, “go to the weight, not the admissibility, of his testimony.” Claimants make arguments of this nature in their motions in limine. And such arguments are not enough to overcome the fact that the Government’s experts’ testimony facially meets the criteria outlined in Rule 702.
Plaintiff Rebecca Leeper filed a Complaint for Damages against the Defendants, the City of Tacoma and Tel Thompson. The case arose from injuries she sustained in a sexual assault on July 17, 2018. In her Complaint, Leeper alleged that the City had prior knowledge of Thompson’s dangerous conduct, including a documented history of confrontational behavior and inappropriate sexualized conduct while working in his Tacoma Police Department uniform. Despite this knowledge, the City allegedly failed to implement reasonable protective or supervisory measures, leading to Leeper’s assault by Thompson. As a result, she claimed to suffer from emotional distress, including depression, anxiety, shame, fear, anger, sadness, embarrassment, and physical health problems such as hypervigilance and irritability.
Leeper moved to strike two rebuttal expert witnesses designated by the City of Tacoma, Ryan Spurling and Dr. Douglas Robinson. She argued that these witnesses were not offering rebuttal opinions and should have been disclosed earlier. Tacoma responds that no rule requires it to designate a primary expert to address the opponent’s expert expected opinions and evidence, but rather the defense is permitted to wait until after Plaintiff’s expert disclosures to disclose experts to rebut the same subjects.
Law Enforcement Expert Witness
Ryan Spurling‘s career in law enforcement has spanned more than 32 years. He has served in the law enforcement community with the Washington State Patrol (WSP), the Mason County Sheriff’s Office (MCSO), and as an expert witness for Use of Force (UOF) and Police practices.
Douglas Perry Robinson is a psychiatrist in Seattle, WA and has over 47 years of experience in the medical field. He graduated from University of Utah in 1976.
The Court found that both Spurling and Robinson met the requirements of Rule 26 as experts “intended solely to contradict or rebut evidence on the same subject matter identified by another party.”
Furthermore, and in any event, Leeper waited almost four years after the cutoff date for motions related to discovery and more than a year after remand and just weeks before trial to move to strike as untimely experts Tacoma disclosed in 2021. Any prejudice from the allegedly late disclosure could have been ameliorated if she had raised the issue much sooner.
Held
The Court denied the Plaintiffs’ motion to strike Tacoma’s expert witnesses, Ryan Spurling and Dr. Douglas Robinson.
Key Takeaways:
The party with the burden of proof on an issue should disclose its expert testimony before the other party is required to disclose an expert to rebut that opinion testimony. Furthermore, and in any event, Leeper waited almost four years after the cutoff date for motions related to discovery and more than a year after remand and just weeks before trial to move to strike as untimely experts Tacoma disclosed in 2021.
Case Details:
Case Caption:
Leeper V. City Of Tacoma Et Al
Docket Number:
3:20cv5467
Court:
United States District Court for the Western District of Washington
This Federal Tort Claims Act (FTCA) case arises out of an accident that occurred on January 5, 2021 between Plaintiff Avery Stinson and a U.S. Postal Service tractor-trailer driven by Stewart Henry. When the accident occurred, Plaintiff was operating a bicycle on a sidewalk and attempting to cross an intersection. At the same time, a U.S. Postal Service tractor-trailer was traveling in the same direction parallel to the sidewalk and initiated a right turn at the same intersection.The bicycle collided with the trailer portion of the tractor-trailer, and Plaintiff sustained injuries as a result of the accident.
Dean Nance has applied his training, experience, and skills in Accident Reconstruction on 100’s of motor vehicle crashes as a member of the Texas Department of Public Safety as a Trooper. During his service with the Texas Department of Public Safety, he completed all 6 Levels of training in Accident Reconstruction. He owns an Accident Reconstruction Investigations Company, and is licensed through the Texas Department of Public Safety Private Security Bureau as a Private Investigations Company.
Nance is also a member of professional societies which specialize in Accident Reconstruction: (TAARS) Texas Association of Accident Reconstruction Specialist, The Laser Scanner Forum, The American Association of Notaries, The Khan Academy of Science and Engineering, and The Crash Forum Group.
Nance’s report failed to meet the requirements of Rule 26(a)(2)
Defendant argued that Nance’s report failed to provide “a complete statement of all opinions the witness will express and the basis and reasons for them” and “the facts or data considered by the witness in forming them” as required by Rule 26.
The Court held that Nance’s report listed his qualifications as an accident reconstructionist and the evidence he reviewed and the tasks he performed in reaching his conclusions. For example, the report stated that Nance “documented the crash scene” and “made a map of the crash scene location using Google Earth Pro.” The report identified materials he consulted such as excerpts from J.J. Keller Truck Driving Training Manual and Smith System Driver Study Guide.
Plaintiff also provided Nance’s curriculum vitae, listing professional experience, specialized training and certificates, awards received, and state and federal court testimony as an accident reconstructionist.
Defendant also moved to strike Nance’s opinions in his report on the ground that the report “promoted an objectively false narrative without evidentiary support.” However, Defendant’s objection to Nance’s report as a “false narrative” amounted to a dispute regarding the facts Nance considered and the conclusions he reached. The Court held that these objections were not a basis to exclude his testimony under Rule 26(a)(2)(B).
Nance’s opinions were “conclusory, lacked evidentiary support, and were unreliable and inadmissible” under Rule 702 and Daubert
Defendant’s motion to exclude Nance’s testimony under Rule 702 and Daubert did not challenge Nance’s qualifications. Instead, Defendant argued that Nance’s “disregard of the evidence and his objectively false narrative” warranted the exclusion of his testimony.
The Court held that objections like those raised by Defendant “relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility.”
Held
The Court denied the Defendant’s motion to exclude Plaintiffs’ expert Dean Nance.
Key Takeaways:
The factfinder generally should “hear the expert’s testimony and decide whether the predicate facts are accurate.”
Since the case will be tried before a judge and not a jury, most of the safeguards provided for in Daubert are not as essential.
A district judge in Florida limited the testimony of a Business Valuation Expert Witness because he did not identify how exactly the CFO breached his unidentified standard of care.
This case arises out of Nextplat’s termination of its former Chief Financial Officer (“CFO”), Thomas Seifert. Nextplat contended in its Second Amended Complaint (among other things) that Seifert breached his employment contract with Nextplat and sought damages as a result. Specifically, Nextplat claimed that Seifert’s errant administration of a $45,000.00 wire in response to a phishing scam breached the section of the employment agreement that required him to act “with such duties, responsibilities and authority as are commensurate and consistent with his position, as may be, from time to time, assigned to him by the [Nextplat board of directors].”
The bulk of Nextplat’s breach of contract claim, then, hinged on whether Seifert adequately complied with that subsection of the employment agreement. To support its case, Nextplat sought to elicit testimony from Gary Moll, CPA, MSA, to opine on Seifert’s duties and responsibilities as CFO and whether Seifert’s adequately performed those duties and responsibilities. Seifert, of course, disputed that he breached the employment agreement and disputed that he acted beneath the CFO standard of care incorporated by the employment agreement.
Seifert filed a motion to strike the testimony of Gary Moll on February 3, 2023.
Business Valuation Expert Witness
Gary A. Moll is the Director of Forensic & Valuation Services at Fiske & Company, a CPA firm specializing in business valuation and litigation support services. He joined Fiske & Company in 2022 and has provided business valuation and litigation support services to manufacturers, wholesalers, retailers, medical practices, restaurants, service entities, and family limited partnerships, including valuing intangibles and intellectual property. He is a frequent speaker on topics such as business valuation, economic damages, and forensic accounting and has written articles on these topics. Additionally, he is a member of the American Institute of Certified Public Accountants (“AICPA”) Forensic & Valuation Section (“FVS”).
The Court first addressed Seifert’s argument that Moll should be excluded because he was not timely disclosed as an expert.
After both parties moved for deadline extensions, the Court extended the deadline for disclosing expert witness summaries and reports to November 11, 2022. Subsequently, the Court ordered that the parties disclose their expert reports on or before December 19, 2022. Seifert argued that, while Moll’s expert report was filed on December 19, 2022, Moll’s expert summary was not disclosed before November 11, 2022, nor was he even disclosed as an expert witness. Essentially, then, Seifert had no idea that Moll was going to be an expert witness—despite the November 11 deadline to disclose expert summaries—until on December 19 when his full expert report was disclosed. The proper remedy for this failure to disclose, argued Seifert, was to strike Moll as an expert witness.
Even if a disclosure is untimely, there must be resulting harm. The Court observed that Seifert still had (and will have) adequate time to prepare for Moll’s testimony.
The Court acknowledged Nextplat’s failure to adequately and timely disclose its expert witness. But Seifert suffered no prejudice and thus had no remedy under Rule 37(c)(1) since that failure was promptly cured.
B. Whether Moll is qualified
Seifert argued that Moll’s undisputed experience as a Certified Public Accountant (“CPA”), CFO, and financial analyst did not qualify him to render opinions in this case. Specifically, Seifert argued that Moll had not served as a CFO for a publicly traded company, and that his curriculum vitae failed to specify the amount of time for which he served in his roles. Further, Seifert took issue with the fact that Moll had never written internal accounting controls.
Moll’s testimony and expert report indicated that he had experience as a financial analyst for a company that underwent the IPO process, had served as a CFO, and had CPA experience relevant to internal control issues. Given Moll’s experience serving in positions and in factual situations relevant to this case, the Court found that Moll is at the very least “minimally qualified” to serve as an expert witness in this case.
C. Whether Moll’s methodology is reliable
In Moll’s expert report, he rendered two expert opinions still relevant to this case: (1) that the “CFO is tasked with creating systems and controls to ensure the safeguarding of company assets” and ensuring compliance with those controls; and (2) that Seifert’s administration of the errant $45,000.00 phishing scam wire fell “far short of proper conduct of a CFO.”
Seifert argued that Moll, in reaching his expert opinions, employed no accepted method or analysis; rather, he just offered his personal, unsubstantiated judgment as to what the CFO should have done. As Seifert characterized it, Moll’s report was primarily “based on his review of various articles, internet searches, and the allegations provided by Nextplat’s counsel.”
Seifert bolstered this argument with the fact that Moll largely inherited the file from two of his associates, and relied substantially on their research and investigation to draw his conclusions.
Seifert argued that Moll’s experience did not carry the burden of rendering his opinion reliable—this was in fact his first time researching the “niche area of cyber security and the CFO’s role.”
1.Moll’s opinion as to the responsibilities of a CFO
Moll concluded that “the CFO is tasked with creating systems and controls to ensure the safeguarding of company assets on a company-wide basis, and additionally, has responsibility for following those controls and safeguards in place.”
The Court noted that Moll has experience as a CFO; as a financial analyst working closely with a CFO for a company who was undergoing the IPO process; and as a CPA and auditor. His experience in this arena is coupled with his review of relevant SEC guidelines and other scholarly articles on the topic.
While Moll did not employ a peer-reviewed methodology to conclude that CFOs are responsible for implementing and ensuring compliance with certain internal controls, Seifert did not suggest a method that should have been used instead, nor did he point the Court even to the existence of such a method for this niche, non-scientific request.
The Court held that Moll’s testimony—based on his review of scholarly articles, the materials in this case, and Nextplat’s policies (or lack thereof); and his professional judgment—passed the threshold of reliable testimony under Daubert. If Seifert finds his testimony to be “shaky” or wishes to attack the factual underpinnings of Moll’s opinion, he can do so before the jury.
2.Moll’s opinion as to whether Seifert fell short of the proper conduct of a CFO
Moll concluded that Seifert’s errant administration of the Phishing Wire fell “far short of proper conduct of a CFO.”
The Court acknowledged Moll’s general qualifications but held that Moll’s experience and methodology were not sufficient to produce reliable findings.
Moll admitted that assessing whether Seifert’s actions conformed with a CFO’s standard conduct was more of a “one off” than it is a “typical type project” for which he is engaged as an expert. In fact, Moll had never assessed whether a CFO has complied with his duties.
Moreover, Moll’s auditing experience did not include “an audit of internal controls,” and did not include “cybersecurity risk assessment measures.” Additionally, Moll’s audit experience involved private—not public—companies, and involved audits that he did not “run or manage.”
Moll concluded that it is the CFO’s job to “develop internal controls to prevent or to preserve the security of the assets of the company.” Moll plainly admitted that he did not know what internal controls Seifert should have put in place.
The Court held that the lack of relevant experience and expertise could not be overcome on a reliability analysis, especially when Moll concluded with certainty that Seifert’s actions fell “far short” of proper conduct. Also, a pivotal area of this case is cybersecurity—i.e., the area in which Moll believed Seifert acted below standard. Moll conceded in his deposition that this case represented his first time researching the “niche area of cyber security and the CFO’s role.”
Moll did not explain how he arrived at his conclusion that Moll breached his standard of conduct as CFO, leaving the Court to infer that, simply, Moll made a judgment call.
D. Whether Moll’s testimony will assist the trier of fact
For this analysis, the Court addressed only the portion of Moll’s proffered testimony that was deem reliable; i.e, that “the CFO is tasked with creating systems and controls to ensure the safeguarding of company assets on a company-wide basis, and additionally, has responsibility for following those controls and safeguards in place.”
Seifert’s argument as to this prong was primarily aimed at the portion of Moll’s testimony that the Court held to be unreliable (i.e., the Seifert fell short of the proper conduct of a CFO). But to the extent Seifert may argue that the reliable portion of Moll’s testimony is unhelpful, the Court disagreed. Here, it would certainly aid a jury to hear from a proffered expert that the SEC requires internal controls, the burden to implement those controls falls on the CFOs of publicly-traded companies, and those controls should include cybersecurity measures. The nature of Moll’s testimony (i.e., the duties and expectations of a CFO in publicly-traded companies in the context of cybersecurity) clearly goes beyond the “understanding and experience of the average citizen.”
Additionally, much, if not all, of Seifert’s argument in this area attacked the implications of the factual underpinnings of Moll’s testimony. But it is well established that Seifert can attack those factual underpinnings at trial.
E. Whether Moll’s Limited Testimony is Misleading Under Rule 403
As for Seifert’s argument that Moll’s testimony is likely to mislead, confuse, and persuade the jury to follow his opinions, the Court addressed only the portion of Moll’s proffered testimony about the CFO being tasked with creating systems and controls to ensure the safeguarding of company assets.
To this point, Seifert’s only argument concerned the portion of Moll’s testimony that was already deemed unreliable; i.e., that Seifert breached the proper conduct of a CFO. And specifically, at the heart of that argument was Seifert’s viewpoint that Moll would offer an impermissible legal conclusion as to Seifert’s conduct. Seifert advanced no argument that the other, reliable portion of Moll’s testimony violated 403—especially because his legal conclusion concerns did not extend to Moll’s standard-based testimony. Accordingly, this issue was effectively moot.
Held
The Court granted the Defendant’s motion to exclude Moll’s opinion and testimony as to whether Seifert’s conduct here fell “far short of proper conduct of a CFO.” The Court denied the Defendant’s motion in all other respects.
Key Takeaway:
Moll never assessed whether a CFO had performed within his standard of care; had never researched cybersecurity; had not suggested what internal controls Seifert should have put in place; had not analyzed how Seifert breached his un-identified standard of care; had not identified the methodology he used to conclude that Seifert breached that standard of care; and did not, it appears, complete the bulk of the relevant research in his report. Moll’s invalidating testimony, lack of methodology, and dearth of direct experience undermine the reliability of his opinion that Seifert acted beneath the proper standard of conduct for a CFO.
Yet, Moll’s opinion about the responsibilities of a CFO —based on his experience as CFO, financial analyst, and CPA of similarly-situated companies; his review of scholarly articles, the materials in this case, and Nextplat’s policies (or lack thereof); and his professional judgment—passed the threshold of reliable testimony under Daubert.
A district judge in New York refrained from excluding testimony about Defendants’ discriminatory policies offered by housing expert witnesses, for the time being.
Plaintiffs CNY Fair Housing, Inc.; The Fair Housing Partnership of Greater Pittsburgh, Inc.; Housing Research & Advocacy Center, Inc., d/b/a Fair Housing Center for Rights & Research, Inc.; Housing Opportunities Made Equal of Buffalo, Inc.; Housing Opportunities Made Equal of Greater Cincinnati, Inc. (the “Organizational Plaintiffs”); Phyllis Bartoszewski; Deanna Town; and Joyce Wilcox, as administrator and representative of the estate of Lois Harter (the “Individual Plaintiffs”), brought this action, asserting claims of discrimination on the basis of disability under the Fair Housing Act of 1968 (“FHA”), New York Human Rights Law, and Ohio Civil Rights Law.
According to Plaintiffs, Defendants have denied Individual Plaintiffs and other people with disabilities reserved or designated parking spaces near the rental units owned and operated by Clover entities (“Clover properties” or “Clover senior properties”). Defendants’ representatives routinely tell residents and applicants that the company does not provide designated parking spots at their multi-family, senior living complexes for anyone, including people with disabilities. Alternatively, and contemporaneously, Defendants have told residents who have requested a designated parking space as a reasonable accommodation because of their disabilities that they must pay a fee up to $350.00 for a designated space.
Defendants filed a motion seeking to exclude from trial and deem inadmissible the opinions of Plaintiffs’ retained experts Erin Kemple and Christina Brooks.
Housing Expert Witnesses
Erin Kemple has been handling housing justice matters for nearly 30 years. She is a consultant and fair housing expert working with fair housing agencies around the country as well as working with the National Fair Housing Alliance to establish a new fair housing council in Memphis, Tennessee.
In 1989, she and a group of legal services advocates and community activists founded the Housing Discrimination Project in Holyoke, Massachusetts eventually becoming the organization’s first Legal Director and then the Executive Director. While there, Kemple assisted the founders of the Connecticut Fair Housing Center, advising them on intake and investigation procedures. In addition to her work in Massachusetts and Connecticut, Kemple is consulting with fair housing groups across the country to assist them with fair housing enforcement and community development work.
In 2022, Erin began her consulting work. She has given numerous trainings on the fair housing laws to lawyers, consumers, and housing providers as well as working with state and local officials to ensure that all communities welcome all people.
Christina Brooks has over 16 years of experience in property management. She has taken fair housing training each year for the last 12 years and am well-versed in best practices under the Fair Housing Act, and particularly regarding decisions and issues related to reasonable accommodations.
Both Erin Kemple and Christina Brooks submitted reports dated January 31, 2023, and supplemental reports dated June 16, 2023.
Erin Kemple’s report addressed the actions the organizations took in response to Defendants’ discriminatory policies and how those actions fit into the standard fair housing organization processes and practices to address such discrimination.
Christina Brooks’ report discussed typical and accepted reasonable accommodations policies and procedures at multi-family apartment buildings and how Defendants’ procedures relate to those standards.
In support of their motion, Defendants relied on Federal Rule of Evidence 702, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and caselaw precluding experts from testifying to legal conclusions. Defendants claimed that the reports “were comprised of nothing but conclusory statements that were not based on any relevant data or facts” and “did nothing to aide a trier of fact to understand any evidence or determine a fact in issue.”
Motion to Strike was Premature
The Court held that the motion to strike was, at that time, premature. Both parties filed motions for summary judgment against each other. The Court does not have to resolve the admissibility of the expert opinions before resolving the motions for summary judgment. Moreover, expert discovery was not completed at the time these issues were briefed. And until the Court rules on those motions, it is not clear which, if any, theories of liability will survive summary judgment.
The Court also noted that the parties have not adequately briefed the relevance and admissibility of some of the proposed expert testimony. With respect to the admissibility of Kemple’s testimony regarding the calculation of organizational damages, neither party has provided any caselaw regarding the type of damages that are compensable. Kemple asserted that the Organizational Plaintiffs have claims for damages based on the diversion of resources and frustration of missions, but that is a legal issue for the Court to decide, not an issue for expert testimony, and the parties did not cite to any caselaw. The parties’ dispute regarding Brooks’ testimony concerning industry standards and reasonable accommodations is best considered after the Court has resolved the parties’ legal arguments regarding reasonable accommodation under the FHA.
Held
The Court therefore denied the motion to strike the reports of Erin Kemple and Christina Brooks at this time, without prejudice to renewal. To the extent Defendants sought to renew this motion following the Court’s ruling on the pending motions for summary judgment, the parties should meet and confer before Defendants file their motion, in order to narrow the issues.
Key Takeaway:
The parties must adequately brief the relevance and admissibility of the proposed expert testimony. Neither party provided any caselaw regarding the type of damages that are compensable for the Court to rule on the admissibility of Kemple’s testimony regarding the calculation of organizational damages. Kemple asserted that the Organizational Plaintiffs have claims for damages based on the diversion of resources and frustration of missions, but that is not an issue for expert testimony, and the parties did not cite to any caselaw.
Case Details:
Case Caption:
CNY Fair Housing, Inc. Et Al V. Clover Group Inc. Et Al
A district judge in Washington ruled that the testimony advanced by an expert on nursing practice was relevant to the Plaintiff’s argument that Chelan County Regional Justice Center’s medical care of inmates is substandard.
Facts of the Case:
Defendant Chelan County Regional Justice Center (“CCRJC”) accepted Blair Nelson into its jail on November 21, 2020. At jail, Blair was suffering from severe alcohol withdrawal. Defendant Licensed Practical Nurse Kami Aldrich attended to her and had to hold her hand so she could get pills into her mouth because she was shaking so much. She was “found” dead in her cell several hours later.
Plaintiff brought this lawsuit on behalf of Nelson’s estate, contending that Blair’s death was preventable and would not have occurred had she received the constitutional minimum of medical care. She left behind four siblings.
Defendants brought a Motion for Summary Judgment and requested the Court to strike the testimony given by three of the Plaintiffs’ expert witnesses: Dr. Richard Cummins, Dr. Lori Roscoe (PhD), and Catherine Fontenot, prior to considering the Motion for Summary Judgment.
Emergency Medicine Expert Witness
Richard Cummins is a Washington State licensed medical doctor who is board certified in both internal medicine and emergency medicine. Cummins has been a member of the University of Washington Department of Internal Medicine and Emergency Medicine since 1981, when he became an attending physician. He was promoted to full professorship in 1985 where he remained for 28 years until retiring from clinical work in July 2020 to Professor Emeritus. During his tenure at the University of Washington Medical Center, he practiced and taught other physicians in the field of emergency medicine, as well as supervised nurses, medical students, and residents in training. Over the course of his career, Cummins has authored more than 150 articles and book chapters on emergency care, including cardiac care.
Lori Roscoe is a Certified Correctional Health Professional and a Certified Correctional Health Professional — Registered Nurse. Roscoe holds a bachelor’s degree in education, a bachelor’s degree in nursing, a master’s degree in public administration with a healthcare concentration, a master’s degree in nursing, a Doctorate Degree in Healthcare Administration, and a Doctor of Nursing Practice degree. She began work in correctional healthcare in 1995 and today is the principal of Correctional HealthCare Consultants LLC and The Correctional Nurse LLC. Roscoe holds an active registered nurse license in the states of Florida, California, Washington, and Georgia, and is licensed as a nurse practitioner in Florida, California, Virginia, Georgia, and Kentucky. Over the course of her nearly 30-year career, Roscoe has worked in a variety of correctional center settings relating to healthcare.
Catherine Fontenot is the Director of the Reception and Diagnostic Unit for VitalCore Health Strategies and was retained for her expertise in correctional practice. Fontenot has had a lengthy career in the field of corrections. She obtained her Bachelor of Science in criminal justice in 1992 and has worked in a variety of correctional settings since that time. Fontenot obtained her master’s degree in criminology from Grambling State University in 2006, and became an adjunct professor at various institutions, teaching courses covering Criminal Law, Criminalistics, Emergency Management, Criminology, Juvenile Justice, Corrections Process, Drugs and Substance Abuse, and the Death Penalty. In her current role, Fontenot was hired to streamline the inmate intake process and to implement an evidence-based health and safety classification.
Defendants took umbrage with all three witnesses’ reference to the September 7, 2021, death of Joseph A. Verville. Verville was booked into CCRJC on September 5, 2021, with noted signs of opioid withdrawal. LPN Aldrich first assessed him for withdrawal and gave detox medications at dinner the following evening, September 6. Surveillance footage showed Verville vomiting at least six times after taking the withdrawal medication, but he was not assessed again by medical staff until he was found dead at 8:50 a.m. on September 7.
After his death, LPN Aldrich was notified of potential discipline on September 27, 2021, and was given a verbal warning on November 23, 2021, after the death of Nelson. Defendants objected to the expert testimony inclusion of Verville’s death as impermissible character evidence. Plaintiff asserted that each of the expert witnesses can discuss the death of Verville because it established a notice of a pattern of conduct by CCRJC, Director Christopher Sharp, and LPN Aldrich.
Dr. Richard Cummins
Cummins is qualified to give an expert opinion on medical care
Cummins reviewed the entire case file, including medical reports, video footage, discovery related documents, and deposition transcripts. In doing so, he determined that CCRJC has a substandard training program and procedures in place which led to; failure to medically assess Nelson when she was booked into jail, failure to follow the internal alcohol withdrawal policy, and failure to provide a proper level of assessment, monitoring, and care. Cummins determined that had CCRJC rectified any of the failures in care, Nelson would not have died.
Defendants asserted that Cummins was not qualified to give expert testimony on the operations of medical procedures inside a corrections facility because his experience was with emergency departments in hospitals. Defendants also objected to Cummins statements on the basis that he is offering impermissible character evidence in his discussion of LPN Aldrich’s conformity with past negligence, which is inadmissible character evidence. Finally, Defendants argued that Cummins should not be able to opine on causation relating to the practice of jail staff and the death of Nelson.
Despite the fact that Nelson’s death took place in a corrections facility rather than a hospital, the Court found that Cummins had extensive knowledge of treating patients in various stages of medical stability, including alcohol withdrawal, given his career in the emergency department.
While Cummins is not necessarily familiar with medical practices in a correctional facility, he is familiar with the standard practice regarding medical care for individuals receiving treatment for alcohol withdrawal. As an expert witness, Cummins is permitted to testify on causation. Based on his own medical background and review of the record, the Court held that Cummins’s opinion on the ultimate issue, that Nelson’s death was caused by failure in treatment for alcohol withdrawal syndrome, is permissible.
Cummins’ testimony does not amount to impermissible character evidence
Defendants asserted that Cummins’ testimony amounts to impermissible character evidence, based on his comparison of the facts at hand with the death of Verville.
Defendants asserted that Cummins’ report drew a comparison between Nurse Aldrich’s treatment of Nelson and the treatment of Verville, improperly concluding that Nurse Aldrich had a propensity to behave in a medically negligent manner.
Plaintiff asserted that a comparison is not offered in violation of Federal Rule of Evidence 404(b), but instead is offered to show a pattern of administering lower than the established standard of care to inmates, or lack of knowledge or mistake that a particular mode of operation would result in the death of an inmate under the care of CCRJC.
While this evidence could be construed as character evidence suggesting that jail medical staff may have engaged in substandard care, the Court agrees that evidence of Verville’s death, and the circumstances surrounding it, are indicative of lack of mistake or absence of notice. Regardless, under Federal Rule of Evidence 703, a Court is vested with the discretion to allow otherwise inadmissible facts or data if the “probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.”
Though not completely analogous, the inclusion of the similar circumstances surrounding Verville’s death may be indicative of absence of mistake or lack of accident via noncompliance with the internal protocol, which would result in the death of an unmonitored detoxing inmate.
Because Cummins is an expert being offered to opine on the standard of medical care provided by CCRJC and the potential cause of Nelson’s death, the Court declined to strike his expert testimony as it did not amount to impermissible character evidence.
Dr.Lori Roscoe, PhD
Roscoe determined that Nelson received substandard nursing care. As part of her finding, she determined that LPN Aldrich’s administration of 100 milligrams of Librium without consulting a provider was illegal but opines no further on this statement except to state that it deviates from the scope of practice of a licensed practical nurse. She also included Verville’s death in determining that CCRJC has a substandard practice of care based on its failure to take corrective action after Verville’s death.
Defendants asserted that Roscoe’s testimony that LPN Aldrich “illegally” administered Librium without contacting a medical provider should be disregarded pursuant to Rule 401 and 403. Further, Defendants alleged that her discussion of Verville amounted to character evidence and was therefore inadmissible.
As an expert on nursing practice, Roscoe was permitted to opine on whether the standard of care was administered from a nursing perspective. Much like Cummins, the Court found that her discussion on the treatment received by Verville was relevant to Plaintiff’s argument that CCRJC’s medical care of inmates is substandard.
As to her statement that LPN Aldrich’s administration of Librium was illegal, Plaintiff offered additional support that any nurse would understand that they are not permitted to administer the narcotic without first contacting a provider.
While potentially dangerous, against the stated internal policy, and seemingly in a general lexicon of knowledge that it should not be done, Plaintiff offered no additional information that administering Librium without first contacting a doctor was “illegal.” As such, the Court disregarded the notion that LPN Aldrich’s conduct was “illegal” based on Roscoe’s testimony, because Plaintiff has provided no additional information to support this statement. However, the rest of her report was deemed admissible.
Catherine Fontenot
Fontenot ultimately determined that CCRJC was not proactive in rectifying standards of care that led to the death of Verville, and these gaps in care led to the death of Nelson.
Defendants’ objected to the inclusion of Fontenot’s testimony because it alleged her testimony was based on medical information, impermissible under Federal Rule of Evidence 702 based on her background. They also alleged that the language used, and the conclusions drawn ran afoul of the character evidence requirement under Federal Rule of Evidence 401 and 402.
Plaintiff contended that Fontenot’s testimony is not being offered for a medical purpose, but instead is offered to demonstrate best corrections practices against the opinion of Defendants’ expert witness.
The Court determined that no part of Fontenot’s opinion ran afoul of Rule 702. She did not make a medical diagnosis of withdrawal beyond the scope of what would have been asked of officials without a medical background working in the jail and recognized the difference between medical and non-medical staff.
Further, while the language used by Fontenot is passionate at times, it is not excludable under Federal Rule of Evidence 403.
Held
With the exception of Roscoe’s reference to the administration of Librium being “illegal,” the Court denied the Defendants’ motion to strike Dr. Richard Cummins, Dr. Lori Roscoe (PhD), and Catherine Fontenot. The Court also denied the Defendants’ motion for summary judgment.
Key Takeaways:
Despite the fact that Nelson’s death took place in a corrections facility rather than a hospital, Richard Cummins had extensive knowledge of treating patients in various stages of medical stability, including alcohol withdrawal, given his career in the emergency department. He is qualified to discuss how and when medication should be administered, and allowed to give his opinion about the initial medical intake and ongoing monitoring of inmates who are under the care of jail medical staff.
Plaintiff offered no additional information that administering Librium without first contacting a doctor is “illegal,” despite it being potentially dangerous and against the stated internal policy. As a result, the Court disregarded the notion that LPN Aldrich’s conduct was “illegal” based on Lori Roscoe’s testimony.
As demonstrated both by Defendants’ own expert witness and additional filings, many times jail officials without a formal medical background must nevertheless be able to render rudimentary care, including identifying withdrawal symptoms, and continued monitoring of inmates. The facts of this case demonstrate that in a jail system, staff must work together to keep everyone safe, inmates and each other alike, and as such non-medical staff is asked to do initial medical intake of inmates after hours and provide ongoing monitoring to recognize withdrawal and alert medical staff. In this spirit, no part of Catherine Fontenot’s opinion ran afoul of Rule 702.
