Expert Witness Profiler

Tag: qualifications

  • Civil Engineering Expert Not Allowed to Opine on the General Contractor’s Responsibilities

    Civil Engineering Expert Not Allowed to Opine on the General Contractor’s Responsibilities

    This case arises out of large solar projects at four sites in Georgia: Perry, Clay, Lumpkin, and Fort Valley. Plaintiff IEA Constructors, LLC was a general contractor for these projects. IEA Constructors hired Defendant Westwood Professional Services, Inc. to prepare plans for stormwater management and sediment control. IEA alleged that Westwood’s design plans were deficient and did not comply with their contract or the permit that governed the contract, resulting in uncontained soil erosion. The other Plaintiff, Infrastructure and Energy Alternatives, Inc., is a third-party beneficiary to the agreement between IEA Constructors and Westwood. The parties refer to the two Plaintiffs collectively as IEA, so the Court will do the same.

    Plaintiffs asserted claims for breach of contract, professional negligence, and indemnification. IEA sought damages for the costs of redesigning new plans and then implementing them, among other things.

    IEA filed motions in limine seeking to exclude the testimony of Westwood’s experts Jeremy McMillen and Jason K. Ball.

    Civil Engineering Expert Witnesses

    Jeremy McMillen has more than 20 years of civil engineering experience, including experience in “land development and stormwater design for residential, commercial, industrial, and military projects.”

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

    Jason Kenneth Ball received his Bachelor of Science in Civil Engineering from the Georgia Institute of Technology and a Master of Civil Engineering from Auburn University. Ball is certified by the Georgia Soil and Water Conservation Commission (GSWCC) as a Level 1B Certified Inspector and a Level II Certified Design Professional.

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

    Discussion by the Court

    1. Motion to exclude Jeremy McMillen’s testimony

    a. Qualifications

    IEA contended that McMillen is not qualified to offer opinions about compliance with the permit and the Green Book for the following reasons:

    • The permit is governed by Georgia law, but McMillen got his Georgia certification four days before submitting his report.
      • He has not performed work on utility-scale solar projects before.
      • He has not performed engineering design work since 2013, instead focusing on forensic consulting.
      • He does not have the certifications necessary to design Erosion, Sedimentation and Pollution Control plans in Georgia.
      • He does not have experience applying the Georgia legal standards that are incorporated into the permit.

      These objections fall primarily into two categories: (1) McMillen does not specialize in some of the issues relevant to the case; and (2) McMillen is not expert in Georgia permit regulations. Neither objection is supported by the law.

      IEA identified no reason that McMillen’s lack of experience with solar projects or projects in Georgia matter. For example, IEA did not suggest that the relevant engineering principles are substantially different for solar projects or for projects in Georgia. IEA also cited no rule suggesting that an expert must have recent experience doing the thing the expert is testifying about. IEA identified no relevant engineering principles that have changed since 2013.

      As for McMillen’s lack of previous experience with Georgia permitting requirements, it is true that the contracts and permits in this case were based on Georgia regulations and standards. But IEA did not explain why that matters either. McMillen is an engineer, not an expert on regulations or permits. By IEA’s own assertion, questions about the meaning of the permit or regulations should be decided by the court, not an expert.

      The Court overruled IEA’s objection based on McMillen’s qualifications.

      b. Reliability

      IEA raised the following objections about the reliability of McMillen’s opinions:

      • He did not provide calculations or written analysis to support an opinion that the designs for the Clay and Lumpkin projects satisfied the sediment storage requirements.
      • With respect to the same opinion, McMillen’s calculation for the size of the disturbed area is different from Westwood’s design plans, but McMillen does not account for the difference in his report.
      • McMillen did not explain how he validated the inputs he used to determine the average slope for each drainage area.

      IEA’s first argument is about McMillen’s opinion that Westwood’s design plans for the Lumpkin and Clay projects provide sediment storage for 67 cubic yards per disturbed acre, as required by the Green Book.

      Westwood did not dispute that McMillen’s report does not provide a basis for that opinion, it is just a conclusion. In his deposition, McMillen acknowledged that Westwood’s plans do not provide for 67 cubic yards of storage in the form of basins, but he said that the storage requirement is “handled by the other BMPs [best management practices] that were designed to be installed on the site.”

      The Court excluded McMillen’s opinions that Westwood’s design plans for the Lumpkin and Clay projects provide sediment storage for 67 cubic yards per disturbed acre, as required by the Green Book.

      2. Motion to exclude McMillen’s testimony on legal issues

      IEA sought to exclude testimony on several of McMillen’s opinions that IEA characterizes as legal opinions or opinions based on an incorrect legal premise:

      • “The Green book states that ‘the total drainage of a temporary sediment trap is up to 5 acres.’ The Westwood plan statement on the plans that ‘temporary basins are required where anticipated disturbance which drains to a common point exceeds 5 acres’ is justified.”
        • “Based on the GA100001 permit and Greenbook, the interpretation of Westwood that 67 cubic yards of sediment storage is required per acre of disturbed area is reasonable.”
        • “The temporary sediment basins on the site are designed in accordance with the Greenbook.”
        • “It is the general contractor’s responsibility to coordinate the activities of the site construction to mitigate interference.”

        Analysis

        IEA’s motion rests on the view that experts may not testify on legal issues. In a case like this involving technical permitting standards, it is conceivable that an expert’s specialized knowledge could be useful in interpreting a permit. But that is not what McMillen is purporting to do in the quoted statements. Rather, the first two statements are simply assertions that Westwood’s interpretations of the Green Book and permit are “reasonable” and “justified.” He does not purport to be relying on engineering expertise to support his opinions. So the Court excluded those opinions.

        The third opinion is different. McMillen is offering the opinion that Westwood’s designs for sediment basins comply with the Green Book. There is no rule against an expert offering an opinion about whether a party complied with a legal standard.

        The fourth opinion—that it is “the general contractor’s responsibility to coordinate the activities of the site construction to mitigate interference”—is not identified on its face as an interpretation of a legal standard. McMillen does not explain how he determined what the general contractor’s responsibilities are. Regardless, it is not an engineering opinion, so it falls outside McMillen’s expertise. As a result, the Court excluded that opinion and any opinion that about what a party’s “responsibilities” were.

        3. Motion to exclude Jason Ball’s testimony as untimely

        Jason Ball is a civil engineer who offered opinions that IEA did not properly install, maintain, or inspect the erosion and sediment control measures that Westwood designed.

        IEA sought to exclude Ball’s testimony as untimely. IEA pointed to the court’s January 30, 2026 scheduling order, which imposed a February 27, 2026 deadline for “proponent expert reports” and a March 13, 2026 deadline for “respondent expert reports.” The Court previously explained that “the party bearing the burden of proof on an issue must disclose any expert opinion on that issue by the proponent deadline” and “the party not bearing the burden of proof on an issue must disclose any expert opinion on that issue by the respondent deadline.”

        Ball submitted his report on March 13. IEA said that was untimely because Ball’s opinions relate only to issues of contributory negligence or alternative causation, which are both affirmative defenses on which Westwood bears the burden of proof. IEA also said that the untimely report was prejudicial because the Court prohibited a third round of reports, so IEA cannot respond to Ball’s report.

        Westwood did not meaningfully respond to IEA’s argument that Ball’s opinion is solely about potential contributory negligence by IEA, so Westwood should have submitted Ball’s report on February 27.

        The Court concluded that Ball’s report was untimely. But the Court need not decide whether any prejudice could be cured because Ball’s report does not survive scrutiny under Rule 702, as the Court will discuss in the next section.

        4. Motion to exclude Jason Ball’s testimony as inadmissible

        IEA objected to the substance of Ball’s report on numerous grounds, including that it included no engineering analysis, did not explain how Ball reached his conclusions, and consisted mostly of a collection of photographs and quotations of other sources.

        IEA is correct that there is little analysis in Ball’s report. The report is 179 pages, but the first 162 pages are devoted to a summary of the historical facts and the documents governing the projects (such as the permit and the Green Book), along with descriptions of numerous photographs. None of that is expert testimony. Rather, fact witnesses with personal knowledge can provide that information, so it is not helpful.

        Ball also included observations about what some photographs show, but he did not accompany that observation with any expert opinion or explanation.

        Of the opinions that Ball did provide, some of them fall outside Ball’s engineering expertise. For example, Ball says that IEA should have flagged questions it had about the design for Westwood and should have notified Westwood about any problems IEA uncovered during inspections. But opinions about what IEA was “responsible” for or what IEA’s “obligations” were are not a matter of engineering expertise, so Ball may not offer those opinions.

        Held

        • The Court granted in part and denied in part IEA’s motion to exclude Jerry McMillen’s testimony.
        • The Court granted in part and denied in part the motion to exclude Jerry McMillen’s testimony on legal issues.
        • The Court granted the motion to exclude Jason Ball’s motion under Rule 702.

        Key Takeaway

        An expert must provide the foundation for his opinions in the report. He may not supplement his opinions in his deposition. But even McMillen’s deposition falls short. An expert may not rely on “calculations in his head” and “good engineering judgment” is not a method that survives scrutiny under Rule 702.

        Case Details:

        Case Caption: IEA Constructors, LLC Et Al V. Westwood Professional Services, Inc.
        Docket Number: 3:23cv588
        Court Name: United States District Court, Wisconsin Western
        Order Date: June 09, 2026
      1. Emergency Medicine Was Expert Allowed to Opine on Correctional Oversight

        Emergency Medicine Was Expert Allowed to Opine on Correctional Oversight

        Approximately 30 hours after Mark Beckner was booked into the Santa Cruz County Jail, he was found dead in his cell. Beckner’s son, Brandon Beckner, and his estate (“Plaintiffs”) filed suit asserting that the County of Santa Clara, correctional officers, and jail personnel were deliberately indifferent to Beckner’s serious medical needs in violation of federal and state law.

        Plaintiffs filed a motion to exclude the testimony of Patrick Ennis, M.D., who is one of California Forensic Medical Group (“CFMG”) Defendants’ expert witnesses. CFMG Defendants filed a motion to exclude the testimony of Jeffrey E. Keller, M.D., one of Plaintiffs’ expert witnesses.

        Correctional Healthcare Expert Witness

        Patrick K. Ennis, M.D. is a general physician and withdrawal specialist working in the field of corrections in Chicago, Illinois.

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

        Emergency Medicine Expert Witness

        Jeffrey Ernest Keller, M.D. is an emergency medicine physician licensed to practice in Idaho. He has experience providing direct clinical care to incarcerated patients and supervising medical programs in both jails and prisons.

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

        Discussion by the Court

        1. Testimony of CFMG Defendants’ Expert Patrick Ennis, M.D.

        CFMG Defendants designated Ennis “to provide expert testimony on the standard of care and actions and inactions of CFMG staff during Beckner’s medical care at the Santa Cruz County Jail.”

        However, Plaintiffs argued that (1) Ennis lacked the requisite qualifications to testify to specific standards of care, likely course of treatment in an emergency room, and the likely outcome of those treatments, and (2) Ennis’ opinions are not sufficiently reliable. The Court disagreed. First, Ennis is sufficiently qualified to testify to the proffered topics given his experience working “as an attending physician for the Department of Correctional Health Services/Cermak Health Services of Cook County in Chicago, Illinois since 2017” and as “the Medical Director of the Cermak Health Services of Cook County Opioid Treatment Program since March of 2022,” where he “works with correctional nurses everyday.”

        CFMG Defendants pointed out that Ennis’ testimony concerning the likely course of treatment in an emergency room and the outcome of those treatments is offered only in rebuttal to Plaintiffs’ expert Keller’s testimony. The Court found that Ennis’ education, training, credentials, and experience as a medical doctor in a correctional setting qualifies him as an expert to discuss standards of care and to rebut Keller’s testimony. Second, Ennis’ opinions are based upon sufficient facts and data given that Ennis conducted a blind review of the records in forming his opinion. Accordingly, the Court found that his opinions are sufficiently reliable.

        2. Testimony of Plaintiffs’ Expert Jeffrey Keller, M.D.

        Plaintiffs designated Keller to testify to correctional medical systems and oversight, clinical correctional care, emergency department care services and procedures, and emergency transport.

        CFMG Defendants did not challenge Keller’s qualifications as a medical professional in a correctional setting. CFMG Defendants instead argued that: (1) Keller’s opinions that Beckner’s death was preventable and that he suffered unnecessarily are speculative, contradict well-established scientific fact, and, as such, are unreliable and more prejudicial than probative; and (2) Keller’s opinions that any actions or omissions by Defendant CFMG caused any harm to Beckner are speculative and are unsupported by sufficient facts. The Court disagreed with both arguments.

        Keller based his opinions on his personal experience as an emergency room physician and his personal experience treating ruptured arteries (though not splanchnic artery ruptures). This is a sufficiently reliable basis for his opinions. Further, Keller’s opinions about Defendant CFMG’s actions are based on the operative complaint, grand jury testimony submitted with the complaint, Beckner’s medical chart, CFMG’s “policies and nursing protocols,” and the testimony of nurse Defendant Sarah Hewett, among other sources. Again, this is a sufficient factual basis for Keller’s opinions in this case. The Court found that Keller’s opinions are sufficiently reliable when coupled with his experience and credentials.

        Held

        The Court denied both Plaintiffs’ motion to exclude the testimony of Patrick Ennis and Defendants’ motion to exclude the testimony of Jeffrey Keller.

        Key Takeaway

        Expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry. And it is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline.

        Case Details:

        Case Caption: Beckner V. County Of Santa Cruz
        Docket Number: 5:23cv5032
        Court Name: United States District Court, California Northern
        Order Date: March 26, 2026
      2. Cellular Analysis Expert’s Testimony Involving the Use of CDR and TAR Admitted

        Cellular Analysis Expert’s Testimony Involving the Use of CDR and TAR Admitted

        The Defendant, Jerry Ray Brown, was charged with one count of attempted bank robbery.

        Brown ostensibly attempted to take by force, violence, and intimidation from the person and in the presence of bank employees, money belonging to and in the care, custody, control, management, and possession of the FNB Community Bank in Choctaw, Oklahoma. 

        Defendant filed a motion in limine challenging the testimony of Special Agent Andrew Kerstetter.

        Cellular Analysis Expert Witness

        Andrew Kerstetter has been with the Federal Bureau of Investigation in Oklahoma City since October 2007. As a Special Agent with FBI, he is a member of the FBI’s Cellular Analysis Survey Team (CAST) program, is assigned to the Oklahoma City Safe Streets Task Force and Violent Crime Squad and has participated in numerous types of FBI investigations.

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

        Discussion by the Court

        Defendant did not appear to contend that any particular methodology employed by Agent Kerstetter failed under Daubert. Rather, Defendant contended that CAST analyses in general are not based on reliable scientific principles and cannot be used to “pinpoint” Defendant’s location. However, as stated above, the government has clarified that the CAST analysis did not pinpoint Defendant’s phone at a precise location, but only placed the phone in a general location.

        Defendant also argued that the CAST analysis “is based on the false assumption that a cell phone connects or is located to the closest cell phone tower at the time a call is placed or received.” However, the government’s explanation of Agent Kerstetter’s CAST analysis did not support Defendant’s argument. 

        Based on the government’s description of Kerstetter’s testimony, the Court anticipated that Kerstetter’s report would analyze the subject phone’s call detail records (‘CDRs’) and timing advance records (‘TARs’) to approximate the distance between the phone and connecting tower in order to provide a general location.

        Other courts have deemed such analyses of CDRs and TARs sufficiently reliable under Daubert. 

        Held

        The Court denied the Defendant’s motion in limine challenging the testimony of Andrew Kerstetter.

        Key Takeaway:

        As noted by the government, courts routinely allow expert testimony involving cell-tower analyses to determine the general location of a phone, provided that proper foundation for the testimony is laid.

        Case Details:

        Case Caption: USA V. Brown
        Docket Number: 5:25cr188
        Court Name: United States District Court, Oklahoma Western
        Order Date: October 31, 2025
      3. Expert Testimony Survives Daubert Challenge in Surgical Mesh Injury Case

        Expert Testimony Survives Daubert Challenge in Surgical Mesh Injury Case

        Connie Thacker (Plaintiff) received two surgical mesh devices, Prolift and TVT-Secur, as implants on May 8, 2009. Both devices were manufactured by Ethicon, Inc. and were designed to treat pelvic organ prolapse and stress urinary incontinence in women. Later, Thacker sued, alleging damages resulting from the use of these devices and identified Elizabeth Laposata as her “Case-Specific expert.”

        The Defendants moved to exclude Laposata’s testimony regarding general principles of tissue reactions to mesh, changes in the mesh after implantation, pain and suffering, and her opinion that Thacker experienced certain complications.

        Pathology Expert Witness

        Elizabeth Ann Laposata, M.D., F.C.A.P., F.A.S.C.P., is an expert in Anatomic and Clinical Pathology who has served as an expert witness in matters involving negligence, criminal law, and products liability. She has testified in cases before courts including the U.S. District Court for the Northern District of Georgia, the Southern District of West Virginia, and the Supreme Court of Rhode Island, with judges such as Joseph R. Goodwin, William S. Duffey Jr., and others presiding.

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

        Discussion by the Court

        Impermissible General Testimony

        The Defendants argued that Laposata’s general opinions exceeded her designation as a case-specific expert and included irrelevant discussion of mesh changes and symptoms not experienced by Thacker. The Court adopted the reasoning in Meade v. Ethicon, Inc., which held that such general background is permissible when used to explain the pathology underlying the Plaintiff’s symptoms and to support case-specific opinions. The Court found her opinions consistent with her role and admissible under Rule 702.

        Qualification to Opine on Mesh Changes

        Defendants claimed Laposata was unqualified to testify about mesh degradation, citing a 2014 deposition where she allegedly admitted she was not a mesh degradation expert. The Court again relied on Meade, finding that her training, work, and literature review qualified her to opine on degraded mesh in human tissue. It emphasized that an expert’s self-description in a prior case is not dispositive and noted her continued education since 2014.

        Qualification to Opine on Pain and Suffering

        Defendants argued she lacked qualifications to opine on Thacker’s pain and suffering because she does not treat live patients for pain. The Court disagreed, citing Meade, and held that a pathologist’s expertise includes determining causes of injuries and diseases, which encompasses opinions on pain arising from pathological findings.

        Reliability of Testimony Without a Control

        Defendants contended her testimony on Thacker’s complications was unreliable because she did not compare the Plaintiff’s tissue slides with control slides from asymptomatic patients. They relied on MDL precedent that found such methodology insufficient. The Court declined to follow that reasoning, holding that her direct examination of Thacker’s explanted mesh provided adequate validation under Daubert. The absence of a control went to the weight of her testimony, not its admissibility.

        Held

        Defendants’ motion  to exclude testimony from Plaintiff’s expert Elizabeth Laposata was denied.

        Key Takeaway

        The Court upheld Laposata’s case-specific testimony, finding her qualified to opine on mesh changes, pain, and complications, and ruling her methods reliable despite the lack of control slides.

        Please refer to the blogs previously published about this case:

        Urogynecology Expert Witness Testimony about inadequate risk disclosure admitted in medical device product liability action

        Obstetrics and Gynecology Expert’s Testimony on Mesh Porosity and Stiffness Admitted

        Urogynecology Expert’s Opinion on Continuum of Care Admitted

        Obstetrics and Gynecology Expert’s Opinion Regarding the Common Knowledge of Pelvic Surgeons Admitted

        Biomedical Engineering Expert’s Testimony on Product Warnings Admitted

        Biomaterials Expert Barred from Testifying About Corporate Knowledge and Intent

        Case Details

        Case Caption: Thacker v. Ethicon Inc.
        Docket Number: 5:20cv50
        Court Name: United States District Court for the Eastern District of Kentucky, Central Division
        Order Date August 11, 2025
      4. Court Limits Testimony of Non-Retained Expert in BNSF Workplace Injury Case

        Court Limits Testimony of Non-Retained Expert in BNSF Workplace Injury Case

        In November 2022, while working as a BNSF intermodal equipment operator, Taylor A. Campbell fell several feet from a railcar ledge while attempting to lock a stuck inter-box connector (IBC). No one witnessed the incident. Campbell blamed the fall on BNSF’s failure to ensure a safe working environment.

        Fred Reinke, a BNSF manager, had developed and taught the training program Campbell allegedly underwent, but he did not personally train him. That role fell to BNSF employee Mark Knepel.

        In April 2025, BNSF disclosed Fred Reinke as a non-retained expert under Rule 26(a)(2)(C). He was expected to testify about Campbell’s training, adherence to safety rules, actions during the incident, and the condition of his equipment. BNSF based his testimony on his industry experience, supervisory role, and inspection of the equipment.

        Campbell moved to exclude the testimony, arguing that Fred Reinke relied on hearsay and lacked personal knowledge. BNSF maintained that Reinke’s testimony was admissible based on his expertise.

        Automotive Rail Operations Expert Witness

        Fred Reinke was a manager at BNSF. Reinke has experience developing and teaching the training program that Campbell purportedly participated in when he began his employment at BNSF. Reinke has also previously surveyed various BNSF intermodal employees over time to verify they have received consistent training.

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

        Discussion by the Court

        The Court applied Federal Rule of Evidence 702, which permits expert testimony if the witness is qualified and the testimony is relevant, reliable, and based on sufficient facts and methods. Quoting Daubert, the Court emphasized its gatekeeping role to ensure that expert opinions are not speculative and are grounded in sound methodology. The Court clarified that while cross-examination is the proper tool for challenging shaky but admissible testimony, it may exclude opinions based solely on the expert’s say-so or hearsay.

        Reinke’s Qualifications and Permissible Testimony

        The Court acknowledged that Campbell did not dispute Reinke’s qualifications to testify about the general structure and content of BNSF’s standardized training program. It found Reinke competent to describe how BNSF typically trained intermodal equipment operators and what the program expected trainers to convey. This fell within his specialized knowledge and direct experience.

        Objections to Reinke’s Testimony

        Campbell moved to exclude Reinke’s opinions on four specific points: (1) whether Knepel properly trained him, (2) what he was actually told or instructed to do, (3) whether he used excessive force that led to his fall, and (4) whether he violated BNSF safety rules. The Court found that Reinke had no personal knowledge of these matters and had formed his opinions based on case materials and a post-incident conversation with Knepel. Because Reinke was not present during the training or the fall, his testimony on these issues lacked a sufficient factual basis.

        Limits on Non-Retained Expert Testimony

        The Court emphasized that as a non-retained expert under Rule 26(a)(2)(C), Reinke could not offer opinions based on information obtained solely in anticipation of litigation. While experts may sometimes rely on hearsay if it is customary in their field, they must apply their expertise to form an independent judgment. The Court concluded that Reinke acted more as a conduit for testimonial hearsay than as an expert applying independent analysis.

        Conclusion and Ruling

        The Court held that Reinke could testify about the general content and structure of BNSF’s training program and how trainers typically implemented it. However, it barred him from opining on the specific training Campbell received, the circumstances of his fall, or any alleged violation of safety rules. The court clarified that only Knepel, as a lay witness with firsthand knowledge, could testify about what he personally observed during Campbell’s training.

        Held

        The Court granted in part and denied in part Plaintiff Campbell’s motion to exclude the testimony of Defendant BNSF Railway Company’s expert witness, Fred Reinke.

        Key Takeaway:

        A non-retained expert like Fred Reinke may testify about general company practices and standardized training based on personal experience, but cannot offer opinions about a specific employee’s training or conduct unless based on firsthand knowledge. Courts strictly limit non-retained experts to what they directly observed or knew prior to litigation.

        Case Details:

        Case Caption: Campbell V. Bnsf Railway Company
        Docket Number: 2:24cv608
        Court Name: United States District Court, Washington Western
        Order Date: July 7, 2025
      5. Social Work Expert’s Testimony on PTSD Symptoms in Adult Women Admitted

        Social Work Expert’s Testimony on PTSD Symptoms in Adult Women Admitted

        The claims against La-Norma Ramirez and Washington County stem from Plaintiff Danyale Blackmore’s booking and release at the Washington County Jail.

        Blackmore alleged that her constitutional rights were violated when she was allegedly strip-searched at the Jail.

        Plaintiff designated Annette Curtis as a retained rebuttal expert. Curtis will provide testimony regarding the symptoms and diagnosis of [PTSD] in adult women.

        Defendant sought to exclude or limit at trial the testimony of Plaintiff’s rebuttal expert, Curtis.

        Social Work Expert Witness

        Annette B. Curtis is a Licensed Clinical Social Worker (“LCSW”) with over 20 years of experience in treating women with sexual trauma and Post-Traumatic Stress Disorder.

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

        Discussion by the Court

        Curtis is Qualified to Offer Expert Testimony

        The Defendant contended that Curtis was not qualified because she lacked experience working in a jail setting or with inmates.

        However, the Court observed that Defendant pointed to no authority to support these propositions, and there is nothing in the record to suggest that Curtis lacked the requisite specialized knowledge, skill, experience, training, or education to testify and opine on the symptoms and diagnosis of PTSD in adult women. 

        Curtis’ Anticipated Testimony are Reliable and Admissible under Rule 702

        Defendant argued that Curtis’ methods and opinions are unreliable because she did not examine Plaintiff, but instead relied on a review of Plaintiff’s medical records and the discovery relating to other expert witnesses in the case.

        The Court held that Curtis’ report and deposition testimony demonstrated that she obtained and reviewed sufficient information to testify about and offer opinions on the symptoms and diagnosis of PTSD in adult women and the Plaintiff, as well as to critique the opinions of the Defendant’s experts. Whether obtaining more information or personally examining the Plaintiff would have been helpful to Curtis’ opinions is a matter for cross-examination.

        Moreover, Curtis’ report and deposition testimony also demonstrated that she applied specific criteria and sufficient facts to form her opinions.

        Specifically, provided adequate foundation and the testimony being otherwise admissible under the Federal Rules of Evidence, the Court held that Curtis may offer expert testimony and opinions regarding the symptoms and diagnosis of PTSD in adult women. Curtis may also offer expert testimony and opinions regarding circumstances that may cause sexual trauma and PTSD. 

        Curtis may not offer Ad Hominem opinions, or Testimony and Opinions that Invades the Exclusive Roles of the Judge and Jury

        The Court held that Curtis’ speculation, ad hominem attacks on the Defendant’s expert, and personal (as opposed to expert) opinions are likewise inappropriate, irrelevant, and substantially prejudicial. In other words, Curtis’ testimony and opinions on these matters are not helpful under Rule 702.

        Curtis testified in her deposition that she believed the Plaintiff suffered a traumatic event at the jail, that the Plaintiff was strip-searched in front of male deputies, and that the Plaintiff was not intoxicated. While Curtis is permitted to critique the opinions of the Defendant’s expert regarding the Plaintiff’s mental health diagnosis, the Court held that her deposition testimony should not include weighing evidence or assessing witness credibility. Basically, Curtis did not have personal knowledge of whether Plaintiff suffered a traumatic event at the jail, was strip searched in front of male deputies, or was not intoxicated.

        But provided adequate foundation and the testimony being otherwise admissible under the Federal Rules of Evidence, the Court held that Curtis may rebut the opinions of Defendant’s expert regarding the medical effects of alcohol use and intoxication on an individual; how an individual’s alcohol use and intoxication affect or have implications in the proper diagnosis of medical and mental health conditions; and that if Plaintiff was not intoxicated at the time of her arrest and booking, how that affects the opinions of Defendant’s expert.

        Held

        The Court granted in part and denied in part the Defendant’s motion to exclude or limit at trial the testimony of Plaintiff’s expert, Annette Curtis.

        Key Takeaway:

        The majority of the issues the Plaintiff raised regarding the reliability of Curtis’ testimony and opinions went to weight, not reliability or admissibility. Curtis’ report and deposition testimony demonstrated that her expert testimony and opinions were the product of reliable principles and methods, which she applied reliably based on sufficient facts.

        While some of the facts on which Curtis’ opinions are based are vigorously disputed by the parties, Defendant pointed to no evidence or legal authority requiring exclusion of her testimony and opinions regarding these facts. Curtis’ use of disputed facts to form her opinions regarding Plaintiff’s diagnosis did not render her testimony and opinions unreliable.

        Please refer to the blogs previously published about this case:
        Mental Health Expert’s PTSD Diagnosis Was Deemed Reliable

        Corrections Expert’s Opinions on the Strip Search Excluded

        Case Details:

        Case Caption: Blackmore V. Ramirez
        Docket Number: 4:21cv26
        Court Name: United States District Court, Utah
        Order Date: June 03, 2025
      6. Vocational Rehabilitation Expert is Qualified to Serve as an Expert on the ADA and Loss of Earnings

        Vocational Rehabilitation Expert is Qualified to Serve as an Expert on the ADA and Loss of Earnings

        It all started when Plaintiff, Maurice Young (“Young”), was employed by Defendant, Jabil, Inc. (“Jabil”) in the role of Machine Operator I (“Operator”). It should be noted that Young suffers from osteoarthritis in his hips which limits his ability to stand, sit, and walk.

        Young asked for a new accommodation, applying for the Engineering Technician I position (“Engineering Technician”) on October 29, 2022. However, Young’s employment with Jabil was officially terminated on November 1, 2022. As a result, Young contended that Jabil failed to accommodate him for other positions under the Americans with Disabilities Act (“ADA”).

        On October 22, 2024, Young submitted the expert report of Dr. John Dieckman. Dieckman provided an ultimate conclusion that Jabil had alternate employment opportunities that they could have offered to Young as a reasonable accommodation. Additionally, Dieckman opined that Young lost at least $36,563 in earnings and $6,033 in benefits.

        Defendants filed a motion to strike the testimony of Dieckman primarily because he is not a qualified expert as to ADA compliance and economic losses.

        Vocational Rehabilitation Expert Witness

        Dr. John Dieckman is a Certified Rehabilitation Counselor and Certified Disability Management Rehabilitation Specialist. He has held the position of Assistant Vocational Director at Proto-Worx since 2000.

        At Proto-Worx, Dieckman oversees the development, training, supervision, and direction of vocational staff. He has previously testified regarding wage loss, liability, and economic recovery in federal and state courts as well as in administrative hearings.

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

        Discussion by the Court

        Defendants sought to preclude Dieckman’s report as it pertains to both his ADA and Loss of Earnings findings.

        Dieckman explained that his vocational assessment was based on a review of numerous documents, including Jabil performance reviews of Young, the Jabil physician questionnaire, emails between Young and Jabil employees regarding the accommodation process, and a review of Jabil job listings.

        Dieckman explained that his analysis of lost earnings was based on a review of Young’s W-2 forms and taxes between 2018 and 2023.

        ADA Arguments

        1. Dieckman is not a qualified expert as to ADA compliance because Dieckman does not have any medical training or licenses

        2. Dieckman’s methodology regarding ADA compliance is unreliable because his finding that Jabil did not provide Young a reasonable accommodation was based solely on public job descriptions and conversations with Young

        3. Dieckman cannot opine on whether Jabil provided Young a reasonable accommodation because Dieckman did not interview anyone at Jabil as to what positions Young could perform or review job postings from the relevant period.

        Economic Loss Arguments

        1. Dieckman is not a qualified expert as to economic losses because Dieckman does not have any economics or business certifications or training

        2. Dieckman’s methodology regarding economic losses is unreliable because his finding that Young was entitled to economic losses was based on open positions as of May 2024, whereas the economic loss assessment covers the period between July 2022 and March 2023, and was calculated based on full time employment when Young was on a part-time schedule prior to his termination.

        3. Dieckman cannot opine on whether Jabil violated the ADA because Dieckman cannot provide a conclusion as to whether Young’s requested accommodations were an undue burden or whether Jabil should have placed Young into a new position

        4. Dieckman’s conclusions regarding Young’s economic losses would not help the jury because they are purely speculative.

        Analysis

        Qualification

        With his formal training in vocational rehabilitation, the Court held that Dieckman is a qualified vocational expert. After all, Dieckman has over thirty years’ experience as an Assistant Vocational Director wherein he has performed vocational evaluations of injured and disabled individuals and produced reports regarding wage and earning loss.

        Reliability

        Defendants’ challenge to Dieckman’s vocational assessment pertains to Dieckman’s failure to interview any Jabil employees. The Court held that Defendants’ challenge to the report’s credibility can be “addressed through vigorous cross-examination [rather] than through threshold exclusion.”  

        Defendants’ challenge to Dieckman’s analysis of lost earnings pertains to Dieckman’s use of open positions as of May 2024 instead of July 2022 to March 2023 and calculation of lost earnings based on full-time employment.

        As to Dieckman’s use of positions available as of May 2024, Dieckman was aware, from his interview with Young and review of the records, that Young had applied for an open Engineering Technician position. While Dieckman reviewed additional job postings as of May 2024, and determined that Young would have been able to fulfill the requirements for most of the positions, this does not negate Dieckman’s knowledge of at least one open position from the relevant period that he determined Young was able to perform.

        Moreover, the Court held that Dieckman’s use of full-time employment to calculate Young’s lost earnings is premised on the assumption that had Jabil provided Young a reasonable accommodation, such as a transfer to the Engineering Technician position, Young would have been able to return to work full-time.

        Courts in this Circuit have held that the future earning capacity model, which would allow for greater damages than identified by Dieckman’s Report, “is an accepted and reliable method for calculating future lost earnings.”

        Fit

        Dieckman’s vocational assessment and wage loss analysis is connected to the questions presented in this case, namely whether (1) Jabil failed to reasonably accommodated Young, and (2) if Jabil violated the ADA, what damages Young is entitled to. Dieckman’s assessment will assist the trier of fact in answering whether Young was able to perform other positions at Jabil and what wages Young lost as a result of his termination.

        Thus, the Court held that there is a sufficient nexus between the facts of the case and Dieckman’s Report to satisfy the “fit” standard.

        Oral Argument

        The decision to hold a Daubert hearing is discretionary with the Court and is not necessary when “the facts upon which the Court must make its determination have been adequately presented to the Court in the parties’ papers and accompanying exhibits.”

        Based on the Court’s review of Dieckman’s Report and the parties’ submissions, which the Court finds are sufficient to render a determination, a Daubert hearing is not warranted in this case.

        Held

        The Court denied Defendants’ Daubert motion to strike the testimony of Dr. John Dieckman.

        Key Takeaways:

        • Dieckman’s report met the Daubert standard because he articulated his methodology and the sources on which he relied.
        • Dieckman is qualified because he has performed vocational evaluations of injured and disabled individuals and produced reports regarding wage and earning loss.

        Case Details:

        Case Caption: Young V. Jabil, Inc. Et Al
        Docket Number: 2:23cv4992
        Court Name: United States District Court, Pennsylvania Eastern
        Order Date: May 19, 2025
      7. Insurance Expert is Not Allowed to Opine on Structural Design

        Insurance Expert is Not Allowed to Opine on Structural Design

        Plaintiffs, Michael and Karen Green claimed that they had sustained loss as a result of hail and wind. Defendant Nationwide Mutual Insurance Company issued them a homeowner’s policy but when Plaintiffs filed a claim for loss under the policy, it gave rise to this dispute because Nationwide apparently failed to reimburse all covered losses under the Policy.

        Nationwide sought to exclude the testimony of Plaintiffs’ retained expert witness, James Taylor, a licensed public adjuster.

        Insurance Expert Witness

        James Taylor has extensive knowledge about restoration and common practices in adjusting and handling claims in the insurance industry. He is licensed public adjuster, insurance appraiser, and IICRC-certified restorer with significant experience in insurance claims handling, loss assessment, and industry-standard compliance.

        He has worked in field of remediation since 2000, and as an insurance adjustor and appraiser since 2019. Taylor’s professional background includes experience in water intrusion and hail damage assessments and structural loss analysis. He holds a public adjuster license with multi-state reciprocity, including Missouri, and maintains IICRC certification in restoration practices.

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

        Discussion by the Court

        Nationwide argued that Taylor lacked the qualifications to opine on the Nederveld engineering report or offer credibility opinions regarding third parties. Plaintiffs countered that Taylor’s testimony concerned insurance industry standards and claims handling practices, not legal conclusions, and agreed he would not testify on the legal standard for vexatious refusal to pay under Missouri law.

        The Court found Taylor qualified based on his extensive experience as a public adjuster, appraiser, and restorer. The Court ruled that Taylor will be permitted to testify regarding insurance industry practices and standards in general, proper claims handling, how certain information affects claims decisions, and whether Nationwide’s actions deviated from insurance industry customs and practices.

        As for the Nederveld engineering report, the Court allowed Taylor to testify on how the industry uses such reports and why, as an adjuster, he finds it reliable or not, but ruled he could not offer opinions on structural engineering defects. Similarly, while he could not give unfounded credibility opinions about third parties like SeekNow or Sedgwick Claims, the Court permitted him to testify if their services or practices were consistent with insurance industry standards.

        Held

        The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of expert James Taylor.

        Key Takeaway

        Taylor is not an attorney offering a legal opinion as to whether Nationwide complied with Missouri law. He is a licensed public adjuster and former restorer, and he is an expert in insurance industry practices and standards. He is offering opinions as to whether Nationwide’s handling of Plaintiffs’ claim was in line with practices in the insurance industry, which goes to the issue of reasonableness and is admissible.

        Case Details

        Case Caption: Green v. Nationwide Mut. Ins. Co.
        Docket Number: 4:23 cv 156 
        Court Name: United States District Court for the Eastern District of Missouri, Eastern Division
        Order Date: May 12, 2025
      8. Neonatology Expert Witness Not Allowed to Opine on Autism

        Neonatology Expert Witness Not Allowed to Opine on Autism

        On July 29, 2022, a minor, Kamila, represented by her mother Keila Robles Figueroa (“Plaintiff” or “Robles”), filed a medical malpractice lawsuit against Dr. Juan C. Castañer (“Castañer”), Presbyterian Community Hospital, Inc. (“the Hospital”) and the Hospital Pediátrico Universitario (collectively “Defendants”). The allegations of negligence in this lawsuit are centered on the medical care providers’ treatment of Robles and her baby during her pregnancy, delivery, and the neonatal care of her premature infant. Robles claimed that the Defendants deviated from the established standards of care.

        On August 30, 2024, the Hospital filed a motion in limine to exclude Plaintiff’s neonatology expert witness, Carolyn Crawford. The Hospital argued that Crawford was neither qualified by education, training, and experience, to opine on the topic of autism or its causes, nor did her report or deposition testimony present opinions that could be said to be based on reliable methodology or rested on sufficient factual foundation.

        On October 7, 2024, Plaintiff argued that Crawford had the necessary expertise to opine on autism and autistic-like behavior in children, as to assist the fact-finder. She also argued that concerns about Crawford’s qualifications and methodology go to “the weight of the testimony, rather than admissibility, which is properly reserved for the jury.”

        Neonatology Expert Witness

        Neonatology Expert Witness

        Carolyn Stocker Crawford completed her B.S. from Dickinson College in Carlisle, Pennsylvania, in 1962, followed by an M.S. from St. Joseph’s University in Philadelphia in 1964. She then completed her M.D. from Jefferson Medical College in Philadelphia in 1971.

        With nearly fifty years of practice in medicine, specifically in the areas of neonatal and perinatal medicine, her experience includes many publications and book chapters in the field of neonatology, including several related to Respiratory Distress Syndrome (RDS). 

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

        Discussion by the Court

        In her expert report dated December 30, 2022, Crawford provided her analysis of Kamila’s medical history, including alleged deficiencies in the prenatal care received by Kamila’s mother, Robles, and the perinatal and neonatal care Kamila received after birth. Defendants challenged the statements in the expert report that relate specifically with Kamila’s neurological status, including certain “autistic-like behaviors.”  

        Defendants argued that the Court should exclude these opinions from trial because Crawford was not qualified to make them, and argued that her methodology lacked a reliable basis.

        A. Crawford’s Qualifications

        Defendants argued that Crawford lacked the qualifications to testify as an expert on issues like autism and autistic-like behaviors in children or its causes.
        Defendants stated that Crawford’s expert qualifications are limited by her education, training, experience, and academic appointments to “pediatrics and neonatology.” As her CV is devoid of any publications on autism or neurology, Defendants claimed that Crawford’s experience reflected a “lack of dedicated research or deep knowledge in the field.”

        a) Curriculum Vitae

        The Court reviewed Crawford’s CV and found that she had practiced medicine for nearly fifty years, specifically in the areas of neonatal and perinatal medicine. Her experience included many publications and book chapters on neonatology, including several related to Respiratory Distress Syndrome (RDS). While the Court agreed that Crawford is an experienced physician in neonatology, it observed that any focus on childhood autism, autistic-like behaviors, or pediatric neurology was notably missing from her CV.

        b) Deposition

        During her deposition, Crawford was asked if she considered herself an expert in pediatric neurology, and she responded, “Yes. In certain areas, yes.”She elaborated: “the kind of complications that you see in premature infants as they develop and mature and age. The type of interventions, the causation of certain types of problems. Certain types of neurological problems.”

        After being asked whether she is qualified to diagnose someone with autism, she responded, “I think I’m qualified to screen and to discuss with parents, but in terms of actually doing the testing, no. I have not been trained to do the actual testing for autism. But in terms of identifying risk factors and evaluating a child for the possibility of autism, I think, yes, I would consider myself reasonably qualified.” Despite admitting she lacks the qualifications to diagnose autism in children, Crawford stated regarding Kamila, “the child does not really have autism. The child may have some autistic-like features related to the brain damage she has.”

        Because Crawford’s experience was not related to diagnosing autism and she had not issued or contributed to publications on autism or autistic-like behavior, Plaintiffs had not shown by the preponderance of the evidence that Crawford was qualified to testify in regard to autism in that case. As such, the Court found that Crawford’s testimony shall be limited to her areas of expertise, namely neonatology, and shall not veer into diagnosis and causation for autism or autistic-like behaviors.

        B. Crawford’s Methodology

        The Court also examined Crawford’s opinions as to Kamila’s autistic-like behaviors and the causal link to brain damage.

        a) Expert Report

        In drafting her expert report, Crawford reviewed Kamila’s medical records and had a phone interview with Kamila’s mother, Robles. Based on this review, Crawford concluded that “Kamila’s neurological injury is the result of her prematurity ‘Plus.’ The ‘Plus’ is the contribution from sepsis, hypotension, DIC, hypoxia/ischemia from multiple apneic episodes in the context of non-steroid benefitted RDS and delayed surfactant administration. As a result of her episodes of hypoxia and altered perfusion she also suffered irreversible brain damage with resultant developmental delay and abnormal neurological function including autistic-like behavior. No family history of developmental delay, autism or cerebral palsy was identified. Absent her significant RDS and NEC and their sequelae, Kamila would likely have developed normally.”

        b) Deposition

        At her deposition, Crawford stated that she believed Kamila “has cerebral palsy, has a brain injury, and [she] think[s] her behavior is explainable by the brain damage and not necessarily by some underlying autism.” When asked what evidence she relied on to support her opinion that Kamila has brain damage, Crawford stated, “she can’t do any self-care. She doesn’t eat. She’s non-verbal. I think motor-wise she’s very delayed. I don’t think she walks or runs. She doesn’t talk.” Crawford also stated that she had not seen an MRI for Kamila but that one “would be an appropriate test to assess her.”

        It was noted that Plaintiff did not provide any scientific basis for Crawford’s belief that Kamila in fact has brain damage and that there is a scientific link between brain damage and autism or autism-like behaviors.

        Plaintiff argued that this was simply a matter in which experts disagreed, thus pertained “to the weight of the testimony, rather than admissibility, which is properly reserved for the jury.”

        The Court disagreed. The record before the Court revealed Plaintiff’s failure to demonstrate by a preponderance of evidence that Crawford’s testimony was the product of reliable principles and methods. Consequently, the Court did not allow Crawford to testify about autism, autism spectrum disorder, or autism-like behaviors during the trial.

        Held

        The Court granted the Defendant’s motion in limine to exclude Plaintiff’s neonatology expert witness Carolyn Crawford’s testimony regarding autism, autism spectrum disorder or autism-like behaviors.

        Key Takeaway:

        The Court excluded Crawford’s expert testimony regarding autism and autistic-like behaviors for two main reasons:

        • Lack of Qualifications: While Crawford’s expert qualifications are limited by her education, training, experience, and academic appointments to “pediatrics and neonatology.” She admitted herself that she has not been trained to do the actual testing for autism. Notably missing from her CV is any focus on childhood autism, autistic-like behaviors or pediatric neurology in general.
        • Unreliable Methodology: Plaintiff has not provided any scientific basis for Crawford’s belief that Kamila in fact has brain damage, and that there is a scientific link between brain damage and autism or autism-like behaviors. In this case, there is “too great an analytical gap between the data and the opinion proffered.” 

        Case Details:

        Case caption: Robles-Figueroa V. Presbyterian Community Hospital, Inc. Et Al
        Docket Number: 3:22cv1361
        Court: United States District Court for the District of Puerto Rico
        Dated: January 27, 2025
      9. Marketing Expert Witness Allowed to Testify Despite Her Relative Inexperience in the Field of Trademark Law

        Marketing Expert Witness Allowed to Testify Despite Her Relative Inexperience in the Field of Trademark Law

        This case concerns use of the term “XHALE” in connection with identical retail smoke shop services, marketing through the same channels, to the same customer base, and in Hattiesburg, on the same street, resulting in rampant actual confusion. Plaintiff Green Rush, LLC, d/b/a Xhale City claims that its federal trademark registration for “XHALE CITY” not only grants it nationwide priority, but presumptively valid trademark rights.

        Defendants hope that third-party use of the term “xhale” will be sufficient to cancel Plaintiff’s registration and negate likelihood of confusion.

        Green Rush opened its Hattiesburg, Mississippi, location on March 18, 2022, at 6062 Highway 98 (a/k/a Hardy Street), Hattiesburg, Mississippi. Prior to that, in the fall of 2020, Xhale Smoke Shop Defendants opened their first location at 4400 Hardy Street, Suite B8, in Hattiesburg, Mississippi. Since that time, Xhale Smoke Shop Defendants have opened five other Xhale Smoke Shop stores in the towns of Columbia, Seminary, Ellisville, Sumrall, and Prentiss, Mississippi, all within a forty-mile radius of Hattiesburg. Both Plaintiff and Defendants sell smoking and vaping related products.

        Defendants designated Dr. Katharine Howie, Ph.D., Assistant Professor of Marketing at the University of Southern Mississippi, as an expert in the field of branding and marketing. Green Rush argued that Howie is unqualified to offer testimony on the subject of trademarks, that she offers legal conclusions, and that her report is otherwise flawed in that her facts and methodology are unreliable.

        Marketing Expert Witness

        Katharine Howie, Ph.D., is an Assistant Professor of Marketing at the University of Southern Mississippi. Howie has worked in the field of business marketing, received her master’s and doctoral degrees in the field, taught a broad array of undergraduate and graduate courses on the subject, has prolifically published and presented in the field, and has conducted extensive research on brand activism, digital and social media marketing, as well as other related topics. 

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

        Discussion by the Court

        Katharine Howie explored the potential legal protection for the term “xhale” in the smoking and vaping industry. After conducting a review of trademark records, business listings, and Google and social media search data, Howie concluded that “xhale” is not a “source signifier” and that a “plethora of other companies within the vaping industry use this exact word and spelling in their operating name.” 

        Howie also examined search traffic on Google and determined that a large volume of consumers search specifically for “xhale,” but the majority do not navigate to “Xhale City,” whereas a “preponderance of Xhale City’s web traffic is derived from searchers explicitly searching for ‘xhale city’ either in isolation or with additional words.”

        A. Dr. Howie’s Qualifications

        Plaintiff argues that Howie’s CV does not indicate any expertise, training, or experience in determining consumer awareness of trademarks and, therefore, she is not qualified to make expert conclusions on such matters.

        The Court finds that Howie’s relative inexperience in the field of trademark law does not preclude her from testifying in this case as an expert on marketing and branding. The Court held that Plaintiff’s concerns about Howie’s opinion testimony are best tested by vigorous cross-examination and presentation of contrary evidence.

        Plaintiff also argued that Howie’s report presents improper legal opinion. The Court holds that an opinion is not objectionable just because it embraces an ultimate issue; however, an expert may never render conclusions of law. It is the Court’s job, not an expert witness’s, to instruct the jury as to the applicable law. To the extent that Howie’s report and proposed testimony may render conclusions of law, the Court held that it is inadmissible. However, she is free to testify about her experience in branding and marketing, the research supporting her report, any quantifiable conclusions she has reached, and the facts supporting her report and opinion, even if her opinion embraces an ultimate issue.

        B. Data and Methodology

        Plaintiff argued that Howie’s report is inadmissible because it is not based on sufficiently reliable facts or data that have evidentiary support, and fails to provide any methodology whatsoever.

        The Court held that its gate-keeping obligation applies to all types of expert testimony, not just scientific testimony. Whether Daubert’s suggested indicia of reliability apply to any given testimony depends on the nature of the issue at hand, the witness’ particular expertise, and the subject of the testimony. It is a fact-specific inquiry. The Court’s responsibility is to ensure that an expert in the courtroom employs the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

        The Court concluded that Howie is qualified in the field of marketing and branding and that her testimony and report are reliable based on her experience and specialized knowledge in her field. In other words, her report is not so fundamentally unsupported that it cannot possibly help the jury. While Howie’s report is not extensive, it is straight-forward and to the point.

        Held

        The Plaintiff’s motion to exclude the testimony of marketing expert witness, Katharine Howie is granted in part and denied in part.

        Key Takeaways:

        Howie’s relative inexperience in the field of trademark law did not preclude her from testifying in this case as an expert on marketing and branding. While Howie’s report is not extensive, it is straight-forward and to the point. Howie’s approach, method, rationale, and the data gathered by her internet and other searches are plain and within the grasp of the Court, as they will be for a jury.

        Case Details:

        Case Caption: Green Rush, Llc V. Xhale Tobacco & Hookah, Inc. Et Al
        Docket Number: 2:23cv71
        Court: United States District Court for the Southern District of Mississippi, Eastern Division
        Order Date: October 10, 2024