Expert Witness Profiler

Tag: Professor

  • Law And Legal Expert Not Allowed to Opine on Contract Formation

    Law And Legal Expert Not Allowed to Opine on Contract Formation

    These two consolidated cases stem from a train derailment involving a National Railroad Passenger Corporation (“Amtrak”) train that occurred on June 27, 2022, on BNSF’s track near Mendon, Missouri. 

    BNSF filed a motion to exclude the opinions of Defendants’ disclosed experts, Allen Rostron and Jasmine Abdel-khalik, both of whom are law school professors. BNSF argued that the opinions of the two professors should be excluded as improper legal conclusions.

    Law And Legal Expert Witnesses

    Allen Rostron received a J.D. degree from Yale Law School in 1994. He served as a law clerk for Judge T. S. Ellis III in the U.S. District Court for the Eastern District of Virginia from 1994 to 1995. He also practiced law at the Cravath, Swaine & Moore law firm in New York City from 1995 to 1999, and at the Brady Center to Prevent Gun Violence in Washington, DC from 1999 to 2003. Rostron has been a law professor at UMKC since 2003. The courses that he teaches include Constitutional Law and Torts.

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

    Jasmine C. Abdel-khalik is a full Professor of Law at the University of Missouri – Kansas City (UMKC) School of Law. She received her B.A. degree in history and sociology from Cornell University in 1997 and her J.D. degree from the University of Michigan in 2000. She worked at Baker & McKenzie, in the Chicago office, for three and a half years and then worked at Freeborn and Peters, now Smith Gambrell Russell, for nearly one and a half years.

    Want to know more about the challenges Jasmine Abdel-khalik has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    Allen Rostron was supposed to offer an opinion “on whether Amtrak is a governmental entity, for constitutional purposes, when it sells tickets to passengers.”

    In his report, Rostron concluded that “it is his opinion, based on a reasonable degree of certainty as a constitutional scholar, that Amtrak is engaged in government action, for constitutional purposes, when it conducts its activities, and those activities would include selling tickets to train passengers.”

    Rostron reached his conclusion by considering the Rail Passenger Service Act of 1970 and other general characteristics of Amtrak, and by examining and applying case law from the United States Supreme Court to the facts and circumstances of these two consolidated cases.

    Abdelkhalik was supposed to offer an opinion as to “whether the facts as to the structure of the terms, complexity of the language, punctuation as well as the factual manner in which the Amtrak’s Arbitration Agreement and its delegation clause were made available to the passengers, if at all, speaks to the validity and scope of those alleged agreements.” Abdel-khalik stated in her report: “I have examined Amtrak’s Arbitration Agreement and delegation clause and, in my opinion, have identified issues with contract interpretation, enforceability, and formation.”

    Like Rostron, Abdel-khalik based her opinion on case law. In her report, she offered a number of opinions such as whether the language of Amtrak’s Arbitration Agreement, and more specifically its delegation clause, is ambiguous, and whether the delegation clause is unenforceable or invalid as unconscionable. She also offered opinions as to whether the various passengers formed a contract with Amtrak. In reaching her conclusions, she examined the law of agency and legal principles of actual and apparent authority.

    Analysis

    Rostron and Abdel-khalik are legal experts, who are being offered to provide their legal opinions regarding a number of legal issues in dispute in these two consolidated cases. They are not being offered to assist a factfinder in understanding a disputed fact.

    Allen Rostron

    With regard to Rostron, Defendants argued that his opinion — that Amtrak is engaged in a government action for constitutional purposes when it sells tickets — is based on a review of the facts. But whether Amtrak is engaged in a government action for purposes of the Constitution is a legal conclusion, and Defendants admitted that Rostron relied extensively on cases from the Supreme Court in reaching his conclusion. They argued that “he reviewed those cases, not for their legal principles, but for their rendition of similar facts essential to answering the question posed by this Court and for the way that the Court treated those facts.” In other words, Rostron formed his opinion by looking for legal precedent, and he then applied his knowledge of the law to the facts. This is legal reasoning and analysis.

    As a result, the Court found that Defendants are offering Rostron to provide legal opinion, contrary to Rule 702.

    Jasmine C. Abdel-khalik

    As for Professor Abdel-khalik, Defendants argued that her expert opinion is being offered to assist the Court in understanding how a consumer might understand Amtrak’s Arbitration Agreement.

    Defendants’ characterization of Abdel-khalik’s report is not accurate. Abdel-khalik did more than “occasionally” reference legal terminology or cases. Basically, she applied the facts of the case — which does include the language of the Arbitration Agreement — to what she considered to be relevant case law. She offered opinions on a number of legal issues involved in this dispute including the following: whether Amtrak’s Arbitration Agreement is ambiguous; whether it is unconscionable; whether there was mutual assent; whether a contract was formed; if a contract was formed, what are its terms; and whether the Defendant passengers can be bound by the actions of persons who bought tickets for them.

    Held

    The Court granted BNSF Railway Company’s motion to exclude the opinions of Defendants’ experts Allen Rostron and Jasmine Abdel-Khalik.

    Key Takeaway

    Contract formation, interpretation, and construction are legal issues to be determined by the Court. Like Rostron, Abdel-khalik formed her opinions by applying her knowledge of the law to the facts of the case, which is legal reasoning. Abdel-khalik is not being offered to assist a trier-of-fact in understanding a disputed fact, but rather Defendants sought to introduce Abdel-khalik’s legal opinions, which is not allowed.

    Case Details:

    Case Caption: BNSF Railway Co. v. Magin
    Docket Number: 2:22cv68, 2:24cv41
    Court Name: United States District Court, Missouri Eastern
    Order Date: March 26, 2026
  • History Expert’s Testimony on Discriminatory Motivations Admitted

    History Expert’s Testimony on Discriminatory Motivations Admitted

    For well over a century, the Commonwealth of Virginia has disobeyed a federal law designed to protect the right of former enslaved people to vote. When the United States started to readmit the rebellious slave states after the Civil War, Congress feared that the former Confederate powers would invent new crimes with which they could disenfranchise Black Americans. To help ensure the right to vote across the Commonwealth, Congress passed the Virginia Readmission Act of 1870. That Act prevents Virginia from changing its constitution to deprive any citizen of the right to vote, “except as a punishment for such crimes as are now felonies at common law.”

    Several times, Virginia has rewritten its constitution contrary to the statute. Each new version has disenfranchised people for offenses other than felonies at common law, and Virginia now automatically disqualifies all felons from the ballot box.

    The Plaintiffs, Tati Abu King and Toni Heath Johnson, have lost their right to vote under this provision. They brought the instant class action to enjoin election officials from enforcing Virginia’s felon disenfranchisement provision.

    The Plaintiffs proffered two expert witnesses, Prof. Carissa Hessick and Prof. Edward Ayers. The Defendants moved to exclude both.

    Law And Legal Expert Witness

    Carissa Byrne Hessick received her undergraduate degree from Columbia University in 1999 and her law degree from Yale Law School in 2002. She has been researching and teaching criminal law since 2005. Currently, she is the Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina School of Law.

    Prior to joining the faculty at the University of North Carolina, she served as a Professor of Law at the University of Utah’s S.J. Quinney College of Law, a Professor of Law at Arizona State University’s Sandra Day O’Connor College of Law, and a Climenko Fellow and Lecturer on Law at Harvard Law School. From January through May of 2024, she served as the Fulbright Distinguished Chair in Arts, Humanities, and Social Sciences at the Australian National University.

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

    History Expert Witness

    Edward L. Ayers is a professor at the University of Richmond. He is the Tucker-Boatwright Professor of the Humanities and President Emeritus at the University of Richmond, as well as the executive director of New American History and former co-editor of American Panorama, two digital projects based at the University. Ayers is also a co-host of BackStory: the American History Podcast, a nationally syndicated podcast, made possible through Virginia Humanities.

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

    Discussion by the Court

    Hessick

    Hessick analyzed the history of Reconstruction and concluded that the law of the Reconstruction Era distinguished between common law felonies and statutory ones.

    From this premise, Hessick offered a definition of “felonies at common law” and compiled a list of such felonies at the time of Reconstruction. Hessick then used comparative techniques to categorize Virginia’s modern felonies as common law felonies or not common law felonies, according to whether today’s crimes descend from Reconstruction Era common law felonies.

    First, the Defendants argued that the Court must exclude Hessick’s evidence because she offered an inadmissible legal conclusion by defining the phrase “felonies at common law” in the Virginia Readmission Act. Second, the Defendants argued that Hessick used an unreliable methodology in her report because she could not classify some modern felonies, and her first-of-its-kind analysis made peer review difficult.

    Hessick offered a reliable analysis generated largely by traditional, primary-source historical research. Moreover, Hessick’s conclusions did not affect the result in this case: The Court has reached its own conclusion about the law. Again, the Rule 702 inquiry here “is much less critical . . . because there is little danger of prejudicing” the Court sitting as both trier of fact and law—and the Court, which has now heard “the expert’s testimony or opinion,” has determined it has no effect on the Court’s legal analysis.

    Ayers

    As with Hessick, the Defendants contended that Ayers presented an inappropriate legal conclusion on the meaning of the disenfranchisement provision in Virginia’s Constitution.

    The Defendants further labeled Ayers’s evidence irrelevant because it focuses on “racial discrimination in the south,” and “[P]laintiffs are not bringing a racial-discrimination claim” or claims involving other states’ regimes. The Defendants also questioned Ayers’s methodology.

    The Court’s analysis of Hessick’s relevance applied with equal force here. To the extent the Court has relied on Ayers’s offerings, they have merely provided a largely undisputed context of Congress’ concerns about the expected legal shenanigans of the readmitted states: Ayers comments on the legal and political regime in place during the Reconstruction Era, colored by unsurprising discriminatory motivations.

    The Court acknowledged that Ayers considered racial history in and beyond the Commonwealth’s borders. But again, “because there is little danger of prejudicing the judge,” the Court can determine what weight this portion of Ayers’ evidence deserves in resolving any factual disputes.

    Finally, the Court rejected the Defendants’ allegations that Ayers departed from his “normal methodology” in preparing for this case. Ayers consulted with and cited to a variety of historical sources. Ayers further detailed his reliable methodology, at length, during a deposition.

    Held

    The Court denied the the Defendants’ motions to exclude the testimony of Professor Carissa Byrne Hessick and Dr. Edward L. Ayers.

    Key Takeaway

    An expert may meet Rule 702’s relevancy requirement even if he or she offers a legal conclusion. In this case, Ayers considered racial history in and beyond the Commonwealth’s borders. The complex legal concepts involving voting rights and constitutional law make it a typical case for allowing expert testimony that arguably states a legal conclusion in order to assist the jury.

    Case Details:

    Case Caption: King V. O’Bannon
    Docket Number: 3:23cv408
    Court Name: United States District Court, Virginia Eastern
    Order Date: January 22, 2026