The Plaintiff, Hannibal Buress, is a well-known stand-up comedian who brought this case against two Miami Police Department (“MPD”) Officers, Luis Verne and Elio Villegas, and the City of Miami, for violations of his civil rights under both federal and Florida law based on an incident in the Wynwood area of Miami on December 9, 2017.
Buress retained Dr. Christopher Chapman as a testifying expert in this case. Chapman opined that “the arrest and handcuffing of Buress on December 9, 2017 . . . was objectively unreasonable and not consistent with police training/standards,” and “consistent with what is commonly referred to as Contempt of Cop.”
Verne believed that Chapman “improperly usurps the jury’s role of evaluating the testimony of the witnesses, making determinations as to the credibility of the witnesses, and applying those facts to the law instructed to them by this Court.”
Law Enforcement Expert Witness
Dr. Christopher Chapman is a retired Sergeant of Police with the Township of Cranford Police Department, Cranford, New Jersey. He has held numerous law enforcement positions and is also an Associate Professor and Founding Director of the Criminal Justice Degree Program at Kinsborough Community College—City University of New York (CUNY), Brooklyn, New York. He earned a PhD. in criminal justice from Northcentral University.
Verne argued that Chapman will opine on “whether the officers violated constitutional standards,” which “is the function of the jury.”
However, Buress clarified that “before a jury, Chapman will not provide testimony about the existence of probable cause; instead, he will testify about Officer Verne’s procedures and tactics.”
Considering “Chapman’s role is limited to describing sound professional standards and identifying departures from them,” the Court denied Verne’s Daubert motion.
Yet, in Buress’ response to Verne’s Daubert motion, Buress stated that Chapman’s first opinion includes opining that “a reasonable officer in Officer Verne’s position would not have reasonably believed they had the authority to censor Buress’ speech regardless of Officer’s Verne disagreement with the speech.” This toes the line between opining on “sound professional standards and identifying departures from them” on the one hand, and whether Officer Verne did indeed violate state law, on the other. However, the Court ended up giving credit to Buress’ purported limitations on Chapman’s potential testimony.
Federal Rule of Evidence 403
Verne believed Chapman’s testimony was inadmissible under Fed. R. Evid. 403 because “Chapman’s testimony about whether Officer Verne had the legal authority to arrest Plaintiff and whether the constitution was violated would mislead the jury in its function as a factfinder, waste time, and is outweighed by the facts that Buress hopes to prove.” Therefore, to Verne, Chapman’s “legal conclusions . . . would also present cumulative evidence to the extent it is based on any facts.”
However, it is premature to conclude that Chapman’s testimony is inadmissible under Rule 403. To begin with, and as Buress pointed out, Verne failed to “provide citations to specific opinions included in Chapman’s report that would confuse the jury, nor does he explain precisely why his testimony would confuse the jury.”
Additionally, and as the Court noted when denying Verne’s Daubert motion, Buress purports to place limits on Chapman’s testimony that would prevent Chapman from opining on issues that are solely within the province of the jury. Thus, at this time, the Court cannot conclude that Chapman’s testimony would mislead or confuse the jury in a way that substantially outweighs the relevance of his testimony.
Finally, Verne misstated the standard on cumulative evidence when he stated that Chapman “would also present cumulative evidence to the extent it is based on any facts.”
Verne seemed to believe that Rule 403 excludes any cumulative evidence but the Court clarified that Rule 403 only excludes the “needless presentation of cumulative evidence” when the repetitive nature of such evidence “substantially outweigh[s]” its relevance.
Held
The Court denied Luis Verne’s Daubert motion to exclude the testimony of Plaintiff Hannibal Buress’ expert Dr. Christopher Chapman.
Key Takeaway:
A police practices expert may present factors that might inform an officer’s decision regarding standards such as probable cause or the use of force when making arrests.
This case arises from a January 2023 automobile accident. On April 16, 2023, Plaintiff Gina Martin was driving eastbound on Interstate I-10, nearing the Chef Menteur exit in New Orleans, Louisiana, when Defendant Micah Cunningham crashed his truck into the rear of Martin’s vehicle. Martin alleged that she suffered various severe injuries as a result of this collision.
Plaintiff retained Dr. David J. Barczyk, D.C as an expert witness in the field of biomechanics in order to opine about the causation of Martin’s injuries.
Defendants filed a motion in limine to exclude the testimony of Barczyk arguing that Barczyk lacked the qualifications and expertise to render opinions regarding medical causation. The Court granted in part and denied in part the Defendants’ motion in limine to exclude the testimony of David J. Barczyk.
Even though the Court found that Barczyk is qualified to opine on the medical causation of Plaintiff’s musculoskeletal injuries, the Court nonetheless excluded his testimony as to the same. The Court found that Barczyk’s testimony with respect to medical causation would be inadmissible because it would not reflect a reliable application of methodology to the facts of this case.
Martin requested that this Court reconsider its prior ruling which precludes Barczyk from testifying as to the medical causation of Plaintiff’s alleged injuries.
Biomechanics Expert Witness
David Barczyk is licensed in Louisiana as a chiropractor and continues to practice as a chiropractor in the office that he established. Barczyk has postdoctoral training in neurology and training in crash biomechanics.
He has received over 350 hours of neurological training and is a diplomate of the American Chiropractic Neurology Board. He has several certifications in biomechanics and has attended over a dozen trainings. Barczyk has given a number of lectures on topics in biomechanics.
With respect to whether Barczyk reliably applied his methodology, the Court held that Plaintiff has still failed to establish that Barczyk has done so. Plaintiff explained that “following the completion of the physical examination and examination of the medical history of Plaintiff, Barczyk was in position to render a reliable opinion regarding causation.” Plaintiff then stated that “Barczyk was able to eliminate previous and alternative causes of Plaintiff’s condition.”
However, Plaintiff’s argument missed the point. Whether Barczyk was in a position to offer reliable testimony does not establish that he reliably applied his methodology to the facts of this case. And, even if he had done so, the Court held that his report fails to demonstrate as much. For example, Barczyk failed to demonstrate how or why he was able to eliminate alternative causes for the Plaintiff’s condition. The Court is thus left with the Plaintiff’s and Barczyk’s own assurances that Barczyk reliably applied his methodology. These subjective assurances do not establish admissibility.
With respect to Barczyk’s qualifications to opine on the medical causation of Plaintiff’s alleged traumatic brain injury, Plaintiff’s arguments for reconsideration are likewise unavailing. Plaintiff restated Barczyk’s qualifications, which the Court has already found to be insufficient. Plaintiff further stated that Barczyk has performed research, testing, and clinical practice with respect to brain injuries. But she cited no examples of Barczyk’s publications, research, or clinical experience.
However, the Court did clarify that, given Barczyk’s expertise in biomechanics, Barczyk is qualified to “testify as to the amount of force he believes was generated by the subject collision and the observed effect of such force on a hypothetical human body in a comparable accident.”
Held
The Court denied the Plaintiff’s motion for reconsideration of the Court’s ruling limiting Dr. David Barczyk’s testimony regarding medical causation.
Key Takeaway:
Whether Barczyk was in a position to offer reliable testimony does not establish that he reliably applied his methodology to the facts of this case. The Court is thus left with the Plaintiff’s and Barczyk’s own assurances that Barczyk reliably applied his methodology. These subjective assurances do not establish admissibility.
Please refer to the blog previously published about this case:
Joy Banner brought this suit against Defendants Michael Wright, St. John the Baptist Parish, and Jaclyn Hotard (collectively “Defendants”) alleging violations of her First Amendment right to freedom of speech during a St. John the Baptist Parish council meeting.
Richard Stanley, an attorney-expert, has been hired by Defendants to opine about “whether a person could reasonably believe that a statute, which in one District Court case was held unconstitutional ‘as applied,’ was still valid in other applications.” Banner alleged that she was only allowed to speak for five seconds before she was interrupted by Defendant Parish President Jaclyn Hotard and then by Defendant Chairman Michael Wright. Plaintiff filed a motion to exclude Stanley’s testimony.
Wright recited Louisiana Revised Statute § 42:1141.4(L)(1) which provided that:
“It shall be a misdemeanor, punishable by a fine of not more than two thousand dollars or imprisonment for not more than one year, or both, for any member of the Board of Ethics, its executive secretary, other employee, or any other person, other than the person who is subject to the investigation or complaint, to make public the testimony taken at a private investigation or private hearing of the Board of Ethics or to make any public statement or give out any information concerning a private investigation or private hearing of the Board of Ethics without the written request of the public servant or other person investigated.”
Banner alleged that the Defendants threatened her with criminal sanctions based on the content of her speech. According to Banner, the law they threatened her with had been long ruled unconstitutional – both facially and as applied.
Law And Legal Expert Witness
Richard C. Stanley represents clients throughout Louisiana and the surrounding region in complex commercial litigation and in the representation of lawyers and law firms in connection with issues of ethics and professional liability.
He handles cases in both state and federal courts at the trial and appellate levels. His clients include two of Louisiana’s largest electric utilities (Entergy and Cleco), as well as numerous out-of-state clients with litigation in Louisiana. He has been recognized as Lawyer of the Year by Best Lawyers in America in multiple categories, including Bet-The-Company Litigation (2019), Real Estate Litigation (2020), Legal Malpractice Law – Defense (2014, 2016, 2018) and Antitrust (2012, 2015).
Plaintiff argued that Stanley’s expert testimony should be excluded from trial because (1) Stanley is offering a legal opinion which is in the province of the judge; (2) Stanley’s opinions are irrelevant; and (3) Stanley conceded that he could only opine as to what a reasonable lawyer would do, not a non-lawyer. In opposition, Defendants argued that Stanley did not intend to offer legal opinions, rather he plans to testify as to the reasonable standard of care of an attorney.
A.Plaintiff’s Argument in Support of the Motion
Plaintiff contended that Stanley is a partner at the law firm Stanley Reuter Alford Owen Munson & Paul, LLC, a firm that has represented Saint John the Baptist Parish.
First, Plaintiff argued that Stanley’s testimony should be excluded because his opinion is a legal opinion, and explaining the law to the jury is the province of the judge, not an expert witness.
Plaintiff contended that Stanley’s methodology includes legal analysis, which an expert witness is prohibited from offering at trial.
Next, Plaintiff argued that Stanley’s testimony should be excluded because it was irrelevant. Plaintiff stated that the statute Stanley has been asked to interpret was found unconstitutional “as applied” and on its face. Plaintiff contended that Stanley’s opinions are about the reasonableness of a “person who is either advised by a lawyer or who has the equivalent information as if they were advised by a lawyer.”
Lastly, Plaintiff contended that Stanley’s testimony should be excluded because he testified that he could only opine as to what a reasonable lawyer would do, not a reasonable non-lawyer.
B. Defendants’ Argument in Opposition to the Motion
Defendants contended that Stanley’s testimony is not a legal opinion, rather Stanley intended to testify regarding the standard of care of a reasonable lawyer because a reasonable lay person, even without the advice of counsel, would have no reason to conclude that Louisiana Revised Statute § 42:1141.4(L)(1) is unconstitutional in all applications.
While Plaintiff argued that Stanley’s testimony should be excluded because the standard of care on which he bases his opinion is that of a lawyer, Defendant contended that the standard of care of an lawyer is higher than the standard of care of lay person.
Defendants conceded that neither Wright nor Hotard are lawyers, and Stanley’s expert opinion is that their actions at the Council meeting did not fall below the reasonable standard of care under the circumstances. Defendants asserted that Plaintiff has not attempted to challenge the constitutionality of the underlying statute.
C. Plaintiff’s Argument in Further Support of the Motion
Plaintiff asserted that neither Hotard nor Wright are attorneys, and this Court has excluded an advice-of-counsel defense. Moreover, this case does not involve negligence or malpractice wherein “standard of care” is an element of the claim. Plaintiff averred that Defendants have not offered any authority that requires a showing of a “standard of care” in a First Amendment case.
Analysis
This Court reviewed Stanley’s expert report and found that it clearly invaded the province of the Court to instruct the jury on any applicable law. In his report, Stanley opined that it was reasonable for a lawyer to believe a statute, which in one District Court case was held unconstitutional ‘as applied,’ was still valid in other applications. In addressing Plaintiff’s First Amendment claim, the jury must determine whether the restriction on Plaintiff’s speech was “reasonable in light of the purpose served by the forum.” Consequently, Stanley’s opinions touched on various legal issues in this matter to be determined by the factfinder. This Court cannot allow Stanley’s opinion as it runs afoul of the Federal Rules of Evidence.
Further, the Court found that Stanley’s testimony was irrelevant. Stanley testified that he can only opine on the standard of care of lawyers, not non-lawyers. Defendants in this matter are not lawyers. Stanley admitted he cannot testify as to the standard of care of a non-lawyer. Even without Stanley’s opinion, the jury may hear testimony from fact witnesses and consider said testimony alongside the jury instructions regarding the applicable law and make their own determination of whether Defendants’ assumptions and actions were reasonable.
Held
The Court granted Plaintiff’s motion to exclude Defendants’ attorney-expert Richard Stanley under Daubert.
Key Takeaways:
Stanley’s opinions touched on various legal issues in this matter to be determined by the factfinder because the jury must determine whether the restriction on Plaintiff’s speech was “reasonable in light of the purpose served by the forum.”
Stanley testified that he can only opine on the standard of care of lawyers, not non-lawyers. Defendants in this matter are not lawyers. Stanley admitted he cannot testify as to the standard of care of a non-lawyer.
In conclusion, being a lawyer does not disqualify one as an expert witness. Lawyers may testify as to legal matters when those matters involve questions of fact. However, there is only one legal answer for every cognizable dispute. There being only one applicable legal rule for each dispute or issue, it requires only one spokesman of the law, who of course is the judge.
Plaintiffs Jennifer Le Pape (“Mother”) and Frederic Le Pape (“Father”) (collectively, “Parents”), on behalf of their child, Alexandre Le Pape (“Alex”), and Alex, individually, (collectively, “Plaintiffs”) bring intentional discrimination claims under the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”) against Defendant Lower Merion School District (the “District”), alleging that the District failed to take appropriate steps to ensure that communications with Alex were as effective as communications with others and failed to provide Alex with the appropriate auxiliary aids and services necessary to afford Alex an equal opportunity to participate in and enjoy the benefit of various school services and programming.
Alex is a nonspeaker. He learned to communicate using a letterboard and communication support person (“letterboard”). The District precluded Alex from using a letterboard and communication partner at school.
The District filed objections to the qualifications of Plaintiffs’ anticipated expert witnesses—Dr. William Young, Dr. Mary Stephens, and Vanessa von Hagen—to opine on the efficacy of the letterboard and communication partner as a means of communication for Alex.
Young, Stephens, and Von Hagen did not submit expert reports in this case, as Plaintiffs identified these three witnesses pursuant to Federal Rule of Civil Procedure 26(a)(2)(C) as experts who have not been retained or specially employed to provide expert testimony.
Young has provided both in-patient and out-patient treatment for Alex’s migraines since May 2019. Stephens has been Alex’s primary care doctor since Spring 2019, and she has also interacted with Alex “through Alex’s contribution to the education of doctors concerning neurodiversity” while von Hagen served as the lead clinician on Alex’s home behavior team for six years, beginning in 2012.
Neurology Expert Witness
William Young is board-certified in neurology, psychiatry, and headache medicine, and he is the director of the Jefferson Headache Center of Jefferson University Hospitals.
Mary M. Stephens is board-certified in family medicine and is the director of Jefferson University Hospitals’ Continuing Care Program. She has “extensive experience . . . providing medical services to neurodiverse individuals in medical settings.”
Vanessa von Hagen is a board-certified behavior analyst with more than 13 years of experience implementing, planning, and developing client-specific programming and interventions based on the principles of applied behavior analysis.
Plaintiffs intended to call Young to testify that “Alex’s communication with the letter board and communication partner is effective communication for Alex” or “at a minimum,” to testify “as to why he deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of his medical treatment.”
The District argued that Young is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because he has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further contended that Young’s alternative opinion as to why he determined Alex’s communication through Spelling to Communicate (S2C) to be sufficiently reliable for purposes of his medical treatment, which Plaintiffs proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”
Aside from his interactions with Alex using the letterboard and communication partner, Young does not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, augmentative and alternative communication (“AAC”), facilitated communication, or other facilitator-dependent communication methods used with minimally verbal or non-verbal autistic individuals like Alex. Accordingly, the Court found that Plaintiffs have failed to establish by a preponderance of the evidence that Young has the necessary expertise to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.
Mary Stephens
Plaintiffs intended to call Stephens to testify that “Alex’s communication with the letter board and communication partner is effective communication for Alex and that his communications on it are his own” or “at a minimum,” to testify “as to why she deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of [her] medical treatment.”
As it argues with respect to Young, the District similarly contended that Stephens is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because she has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further argued that Stephens’ alternative opinion as to why she determined Alex’s communication through S2C to be sufficiently reliable for purposes of her medical treatment, which Plaintiffs again proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”
Since Stephens does not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, AAC, or facilitator-dependent communication techniques, the Court found that Plaintiffs have failed to establish by a preponderance of the evidence that Stephens has the necessary expertise to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.
Vanessa von Hagen
Plaintiffs intended to call von Hagen to testify that “Alex’s communication with the letter board is effective, that he communicates his wants, needs, and thoughts with it, and that he could not do so without it” or “at a minimum,” to testify “as to why she deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of her clinical work with him.”
The District argued that, like Young and Stephens, von Hagen is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because she has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further contended that von Hagen’s alternative opinion as to why she determined Alex’s communication through S2C to be sufficiently reliable for purposes of her clinical work, which as with Young and Stephens, Plaintiffs proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”
The Scope of von Hagen’s Clinical Experience is Not Clear
While von Hagen does not appear to have any education or research experience in the fields of speech-language pathology, AAC, or facilitator-dependent communication techniques, the scope of von Hagen’s “clinical experience . . . concerning communication strategies for persons with autism” is not clear from Plaintiffs’ pretrial memorandum or letter brief, von Hagen’s curriculum vitae, or von Hagen’s testimony at the due process hearing.
The Court cannot yet ascertain whether von Hagen’s clinical experience is sufficient to qualify her to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.
Held
The Court held that Young and Stephens will not be permitted to opine on the efficacy of the letterboard and communication partner as a communication method for Alex, which includes any testimony about their determinations that Alex’s communication with a letterboard and communication partner is sufficiently reliable for purposes of their medical treatment of Alex. It reserves ruling on the District’s objection to the qualifications of von Hagen to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.
Key Takeaway:
Defendants argued that Young, Stephens and von Hagen lacked the qualifications to opine on the efficacy of the letterboard and communication partner as a means of communication for Alex.
While the scope of von Hagen’s experience was not clear, both Young and Stephens did not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, augmentative and alternative communication, or facilitator-dependent communication techniques.
Please refer to the blog previously published about this case:
The present case involves an insurance dispute between Plaintiff Charles Mounce and Defendant USAA General Indemnity Company about subrogated funds and claims handling.
On October 3, 2017, Mounce was injured in a motor vehicle collision while he was riding as a passenger in Pyles vehicle. The vehicle was covered under USAA Policy 024029075G71011 (Hereinafter “USAA Policy”). As such, Mounce was covered under the USAA Insurance Policy. The USAA Policy provides coverage to Mounce in the amount of $10,000 (hereinafter “USAA PIP”).
On October 9, 2017, USAA informed Mounce that he was covered under Pyles’s PIP policy and explained its subrogation interest in damages received from Fox or his insurer, State Farm. Between November 2017 and October 2018, USAA paid Mounce’s medical providers a total of $9,910.45 for his various treatments. State Farm issued USAA payment for the subrogated amount of $9,910.45 in early September 2020.
On February 16, 2021, Mounce sent USAA an Insurance Fair Conduct Act (IFCA) notice stating that “USAA accepted settlement funds from the third party carrier when USAA was not entitled to those funds as Mounce was not fully compensated for his loss,” and “USAA must immediately disgorge those funds and send them to Mounce to help compensate him for his loss.”
Plaintiff Mounce disclosed Michael W. Chan as his chiropractic expert witness to review his medical treatment. Chan was supposed to opine whether the treatment was appropriate and if the associated charges were reasonable. Meanwhile, Defendant USAA General Indemnity Co. filed a motion to exclude specific opinions provided by Michael Chan.
Chiropractic Expert Witness
Michael Chan has been practicing chiropractics since 1999. Besides his expertise as an accident reconstructionist, an injury biomechanist, and a practicing chiropractor, he owns the Integrative Injury Clinic. He pursued his Doctor of Chiropractic from the Palmer Chiropractic College-West in San Jose, California.
Chan drew on his experience as an accident reconstructionist, injury biomechanist, and practicing chiropractor to reach conclusions about Mounce’s alleged injuries and treatment. His experience as the owner of the Integrative Injury Clinic was also relevant since he employed a physical therapist for whom he sets the billing rates.
Chan opined that the October 3, 2017, collision caused injuries to Mounce’s neck and back. He noted that amount of the force seen in this collision was clearly sufficient to result in the injuries that were diagnosed, especially when you take into account the factors that put Mounce more at risk for acute and chronic injuries. Although Mounce had pre-existing musculoskeletal conditions, Chan believed that the treatment Mounce received was causally related to the 10/03/2017 collision on a more probable than not basis. Chan added that the cost was reasonable and within the norms billed by similar providers throughout the country, as well as the Pacific Northwest.
Defendant USAA General Indemnity Co.’s Argument
USAA did not aim to exclude Chan’s testimony entirely. It agreed that he was qualified to provide opinions on chiropractic treatment and its associated costs. However, the company argued that Chan lacked “the requisite knowledge, skill, experience, training, or education” to form the following opinions:
First, Plaintiff’s March 6 through May 23, 2018 physical therapy treatment was reasonable and necessary due to the October 3, 2017 accident
Second, the $2,805 that Aurora Village Physical Therapy charged Plaintiff for dates of service from March 6 through May 23, 2018 was reasonable and within the norms billed by similar providers.
Third, Plaintiff’s December 11, 2018 treatment with Steven Taylor, M.D. was reasonable and necessary
Finally, the $143 that the Plaintiff was charged for the December 11, 2018 date of service was reasonable and within the norms billed by similar providers.
Analysis
Since Chan was neither a trained nor licensed medical doctor, the Court held that it would be inappropriate for him to offer opinions to a jury about the need for or costs of treatments provided by Steven Taylor, a physiatrist. The fact that Chan’s specialty might share certain medical billing codes with services provided by Taylor did not render Chan qualified to opine about whether medical treatment was reasonable or necessary.
As a chiropractor, Chan employed therapy modalities also used by other physical therapists, and as the owner of Integrative Injury Clinics, he employed and set the billing rates for a physical therapist. Therefore, the Court held that Chan has the required knowledge to reliably opine on the reasonableness, need for, and cost of Mounce’s physical therapy treatments.
Just to be on the safe side, USAA mounts a colorable challenge to Chan’s bona fides as a physical therapy expert, but it does not go to admissibility.
Held
The Court granted USAA’s motion in part. Basically, Chan may not testify that “Plaintiff’s December 11, 2018 treatment with Steven Taylor, M.D. was reasonable and necessary; and (4) the $143 Taylor charged Plaintiff for the December 11, 2018 date of service was reasonable and within the norms billed by similar providers.” USAA’s motion is denied in all other respects.
Key Takeaway:
Because Chan is neither a trained nor licensed medical doctor, the Court emphasized that Chan’s qualifications did not extend to evaluating medical treatment he was not trained to assess. Chan, however, has the requisite knowledge to testify as an expert on the reasonableness, need for, and cost of Mounce’s physical therapy treatments.
Case Details:
Case caption:
Mounce V. USAA General Indemnity Company
Docket Number:
2:22cv1720
Court:
United States District Court for the Western District of Washington
On May 26, 2020, South Bend police officers began clearing a homeless encampment on city property after prior notice and concerns about crime and COVID-19. Tracy Leliaert, a person with a home who protested the clearing, refused to leave even when warned repeatedly. Officer Joshua Morgan and Officer Ryan Williams eventually arrested her and two others for trespassing. She pursued excessive force claims under the Fourth Amendment and a First Amendment right-to-assembly claim, though only one claim remains today.
Leliaert retained Chet Epperson to review the evidence and opine on police practices and standards. Chet Epperson opined that the City of South Bend, Indiana, Officers Joshua Morgan, Ryan Williams, and Police Chief Scott Ruszkowski deviated from Nationally Accepted Principles of First Amendment Right to Assembly, Use of Force in Their Interactions with Leliaert, Internal Affairs Investigations and Early Identification Systems in the Complaint of Tracy Leliaert.
Defendants argued that Epperson did not have the necessary facts or knowledge to reach his conclusions, that some of his opinions did not fit the case, and that he at times supplanted the jury’s role.
Law Enforcement Expert Witness
Chet Epperson earned a bachelor’s degree in sociology and anthropology, and then a master’s degree in public administration from Rockford University. He has published and taught seminars on police standards. He has served as a police practices consultant and appointed court monitor for police practices since 2015.
The Court held that the opinions neither fit nor serve the legitimate purpose of educating the jury, much less without substantial and overweighing confusion.
Epperson also proposed to opine about the First Amendment claim (first opinion), but this claim too cannot survive summary judgment as a matter of law. Whether the City had a plan in place to remove and then safely house the homeless has no bearing on the First Amendment claim (or Eighth Amendment claim); and that proves truer still when no such claim survives at summary judgment.
Epperson also acknowledged that whether the land was a public forum would make a difference to a First Amendment claim, but he admitted that he has no information to determine whether it was. He admitted he hasn’t done any investigation and doesn’t have any facts that would make the tent city a public forum.
When Epperson opined that Officer Morgan deviated from nationally accepted principles of use of force, the Court held that the jury is well positioned to decide whether Officer Morgan acted reasonably.
Epperson intended to opine that Officer Morgan deviated from a nationally-accepted practice on less lethal encounters in using a knee over Leliaert’s neck. The Court held that the Fourth Amendment standard for excessive force is an objective standard, and his testimony about standards of police practice are immaterial to determining what is objectively reasonable under the Fourth Amendment.
Held
The Court granted the motion to exclude the testimony of Chet Epperson.
Key Takeaway:
Epperson’s opinion has a glaring factual gap at the start that renders it unreliable—it assumes Leliaert was homeless when she was not. Whether the City had a plan in place to remove and then safely house the homeless has no bearing on a First Amendment claim (or Eighth Amendment claim) for someone who was not homeless.
Epperson just assumes Leliaert had a right to be there because, simply stated in his words, she was there and it was property owned by the City. His factual gaps thus reveal gaps in his methodology, and reveal his opinion to be barely more than his say-so.
Case Details:
Case Caption:
Leliaert V. City Of South Bend Et Al
Docket Number:
3:22cv359
Court:
United States District Court for the Northern District of Indiana, South Bend Division
Athena, a specialty lender engaged in the business of providing loans secured by high-value fine art, extended a loan to a borrower, using the 1982 painting by Jean-Michel Basquiat titled “Humidity” (the “Basquiat”) as collateral. Subsequently, on March 2, 2020, the New York County Supreme Court entered a judgment for Athena in the amount of $14,306,800.47 after the borrower defaulted on the loan. Based on this judgment and with the loan and security agreement terms in mind, Athena asserts its entitlement to sell the Basquiat without regard to outstanding claims from any third parties asserting ownership interests in the painting.
On July 31, 2020, Interested Party and Intervenor-Plaintiff Satfinance intervened, filing a complaint against Athena based on its claimed interest in the Basquiat.
In this in rem action to foreclose a lien and to obtain an order permitting the sale of a painting by Jean-Michel Basquiat, Athena Art Finance Corporation, acting as both Plaintiff and Intervenor-Defendant, submitted a motion to strike the expert opinions of Satfinance’s expert Michael Plummer, set forth in his February 23, 2023 report, pursuant to Federal Rule of Civil Procedure 26 and Federal Rule of Evidence 702.
Satfinance engaged Plummer to provide insights into: (1) the general nature and conditions of business and credit in the art market; (2) standards of reasonable business practice and due diligence in the art market relative to the operative loans made by Athena; and (3) specifics of the diligence conducted by Athena on such loans.
Finance Expert Witness
Michael Plummer is a leading authority on art finance. Plummer worked as an advisor in the art market for 13 years, providing guidance on a range of issues, including the general landscape of the art market, art-based lending, and best business practices. Plummer has advised on, articles in the New York Times, the Wall Street Journal, the Financial Times, and the Art Newspaper on the subjects of art market performance, trends, economic factors, investment practices and structures, and liquidity and valuation in an “opaque” market. Plummer also has lectured on panels for continuing education courses and graduatedegree programs on the same subjects discussed in the articles at the Wharton School, New York University, the Appraisers Association of America, Sotheby’s Institute and Christie’s Education.
Discussion by the Court
First, Athena argued that finance expert witness Plummer failed to disclose, under Federal Rule of Civil Procedure 26, a prior expert report that served as the “starting point” for his opinions in this case and also failed to disclose a prior client relationship he had with Athena. And second, Athena contended that Plummer was not qualified to serve as an expert “on secured finance and asset-backed lending” and had not followed an appropriate methodology to form his opinions.
Plummer is qualified to serve as an expert in this case
Athena objected to Plummer’s lack of formal training and education in secured lending, asserting that Plummer lacked the relevant licensing or credentials common in the field of secured lending and never received formal training in that field.
Satfinance retained Plummer to opine on the adequacy of Athena’s due diligence when extending a loan secured by a piece of art, given the conditions, norms, and practices of the art market and the art finance industry. The Court found Plummer unquestionably qualified to testify as an expert in this case, with his extensive experience in the field of analyzing art market economics, valuations, art purchases and sales, and art lending practices.
Plummer’s lack of formal education and professional licenses in the field of secured lending did not suffice to render him unqualified in this case.
Satfinance was not attempting to have Plummer opine on subject matters unrelated to his area of expertise, such as general asset-backed lending. The opinions in the Plummer Report were limited to the art market, the art finance industry, and the best business practices therein.
The Court deemed Plummer qualified to serve as an expert on art industry standards for underwriting asset-back loans secured by pieces of art.
Plummer followed an appropriate methodology
According to the Court, Plummer sufficiently explained how his experience led to the conclusions reached, why that experience was a sufficient basis for his opinion, and how that experience was reliably applied to the facts.
Plummer described the art market in general and outlined the standards and conditions of the art market to provide context for evaluating the loans made by Athena. Plummer provided background on private art sales, art advising versus art dealing, and pricing in the art market, all based on his experience advising and working in that market.
He also opined on the standards for Athena’s diligence on artwork collateral and the “macro business issues” impacting Athena’s due diligence. In concluding that Athena’s due diligence was inadequate, Plummer based his conclusion on his former experience working in Sotheby’s treasury department, where he approved dealer credit arrangements and managed Sotheby’s first long-term, asset-backed dealer loan.
The Court held that Plummer’s testimony on these points provided relevant context of the market in which Athena made the operative transactions—a landscape which lay individuals may have possessed little or no knowledge about. Plummer’s testimony also outlined what he opined to be best practices in that market and what red flags should have been apparent when performing diligence on a transaction like the ones at issue here.
Plummer failed to disclose a prior expert report
Plummer served as an expert in another case, Overton v. Art Finance Partners LLC, Case No. 15-CV-3927, and issued a report in that case upon which he relied here.
The Court noted Plummer’s reliance on the Overton Report to prepare his own report. A comparison of the two reports also revealed substantial similarities in the sections regarding the general nature and conditions of business in the art market, confirming Plummer’s reliance on specific information from the Overton Report in creating his Report here.
The Court held that Athena, however, did not suffer any prejudice from the failure to disclose the Overton Report, such that exclusion of the Plummer Report was required. First, Athena knew about the Overton Report before Plummer’s deposition. Indeed, it questioned Plummer about that report at the deposition. Athena thus had an opportunity to question Plummer about the Overton report and to have its own expert challenge the conclusions reached by Plummer in that report. Rule 26’s disclosure obligation intends to prevent “surprise” or “trial by ambush,” but this was not the case here.
Athena also contended that Plummer failed to disclose that he relied upon “personal interactions” he had with Athena personnel that formed the basis of his opinions in his Report. The Court held that though Plummer had to disclose any facts or data that informed the opinions he reached in his Report, Athena knew of these interactions and conversations before Plummer’s deposition and thus had a chance to question Plummer about the interactions, and in fact did so.
Plummer failed to disclose a prior relationship with Athena
Lastly, Athena cited Plummer’s prior relationship with Athena, that Athena claims did not end well. Athena asserted that it affected Plummer’s ability to be an impartial expert in this case.
Plummer testified that he disagreed with Athena’s characterization of how the relationship ended, and he further testified that when the “disagreement” arose between him and Athena, Plummer “immediately turned the art fair matter over to another member of his team.” In short, the deposition testimony Athena relied on was too thin a basis from which to conclude that Plummer felt that his relationship with Athena ended so acrimoniously that it rendered Plummer biased.
Held
The Court denied Athena’s motion to strike the opinions of Finance Expert Witness Michael Plummer.
The Court, subsequently, terminated the motion. It has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways:
Plummer’s Qualifications: Despite Athena’s objections regarding Plummer’s lack of formal training and education in secured lending, the Court found Plummer unquestionably qualified to testify as an expert in the case due to his extensive experience in analyzing art market economics, valuations, art purchases and sales, and art lending practices.
Scope of Expert Opinion: Plummer’s expertise was limited to the art market and the art finance industry, and he was not expected to opine on subject matters unrelated to his area of expertise.
Methodology: Plummer followed an appropriate methodology in forming his opinions, explaining how his experience led to his conclusions and how this experience was reliably applied to the facts. He provided relevant context and outlined best practices in the art market, based on his extensive experience.
