This matter involves an incident that occurred on May 29, 2020, while Plaintiff, David Zuniga was present during the George Floyd protests in Grand Park, Downtown Los Angeles. During this time, Zuniga and his experts contended that he was struck with a nonlethal projectile to his head by Officer Aaron Green. Officer Green, and the other named officer Defendants were assisting in controlling a crowd of protestors who were unlawfully protesting in the Grand Park area, after an unlawful assembly was declared and a dispersal order had been given.
Plaintiff filed a motion to preclude Defendants’ law enforcement practices expert, Edward T. Flosi‘s opinions and to preclude him from testifying in this action on the grounds that Flosi’s opinions “are unreliable and do not meet the standards as required under Fed. R. Evid. Rule 702 and Daubert,” are speculative, attempt to resolve questions of fact and thus “invade the province of the jury,” and offer improper legal conclusions.
Law Enforcement Expert Witness
Edward Flosi is a law enforcement practices expert with over 35 years of experience. He has a Masters of Science in Emergency Services Administration from the California State University Long beach and a Bachelor of Science in Criminal Justice Administration. Flosi is currently an adjunct instructor in the Administration of Justice Department at West Valley College in Saratoga, California and is a Principal Instructor/President/CEO of PROELIA Defense and Arrest Tactics, LLC. He is also a Director of Training for ShotSpotter, Inc. He was previously a San Jose Police Sergeant and San Jose Police Officer, where he was a law enforcement instructor in the training unit and was a training unit supervisor.
Plaintiff first argued that Flosi’s opinions are generally unreliable because they “are based on the teachings of the Force Science Institute,” which Plaintiff contended is “a purveyor of unreliable pseudoscientific analysis engineered to justify officers’ use of force.” Plaintiff cites to another court case from this district in which the Court granted a motion in limine to exclude testimony from a “force science expert” associated with the Force Science Institute. In that case, the expert was not Flosi but a different individual who also had an extensive background in law enforcement. The Court noted that the expert’s “long career in law enforcement might qualify him as an expert in some subjects, but not in the subjects for which he is offered here, namely disciplines of behavioral science.”
Here, Defendants do not offer Flosi as a “force science expert.” Defendants’ expert disclosures stated that he will “testify about the tactics and uses of force employed by the individual Defendants in this action in relation to the conduct of Plaintiffs at the time of the subject incident. He will opine as to the use of force, if any, employed at the time of the incident, including human factors associated with threat perception, response and performance during rapidly unfolding encounters.” Plaintiff argued that Flosi’s opinions should be excluded “to the extent they are based upon FSI principles,” but no part of Flosi’s expert report indicated that any of his opinions are based upon this information. The Court found that Flosi’s extensive background and experience in law enforcement qualifies him to testify as to police practices and tactics, as Defendants’ expert disclosures state.
Legal Conclusions
Plaintiff also sought to exclude each of Flosi’s opinions because the opinions “reach legal conclusions that directly usurp the role of the jury.” Plaintiff further argued that Flosi “devoted significant portions of [his] analysis] . . . attempting to dictate what the evidence is,” which is improper.
The Court held that Flosi may testify as to his understanding of the facts, but not to legal conclusions based on what the evidence shows. For instance, the Court excluded Flosi’s opinion regarding whether it is “objectively reasonable” to fire a projectile impact weapon at a person that a reasonable officer would perceive as being armed and/or poses an immediate threat of violence or physical harm to an officer or another person. However, Flosi was allowed to testify as to whether such actions are consistent with current law enforcement practices and training.
Held
The Court granted in part and denied in part the motion to preclude Defendants’ law enforcement practices expert, Edward T. Flosi.
Key Takeaways:
Flosi’s extensive background and experience in law enforcement qualifies him to testify as to police practices and tactics. No part of Flosi’s expert report indicated that any of his opinions are based upon Force Science Institute principles.
Flosi’s opinion regarding whether it is “objectively reasonable” to fire a projectile impact weapon at a person that a reasonable officer would perceive as being armed and/or poses an immediate threat of violence or physical harm to an officer or another person constitutes a legal conclusion.
Case Details:
Case Caption:
David Zuniga V. City Of Los Angeles Et Al
Docket Number:
2:22cv3665
Court:
United States District Court for the Central District of California
Wave Neuroscience alleged that Brain Frequency infringed four patents in this case. The vast majority of claims asserted in this litigation against Brain Frequency are method claims that relate to the performance of a medical procedure by medical practitioners on patients. Defendants claimed that Brain Frequency is immune because it is a “related health care entity” that merely facilitates the performance of those accused medical activities by medical practitioners.
Section 287(c) of the Patent Act, known as the Physician’s Immunity Statute, mandates an exception to infringement claims asserted under Section 271 (a) and (b) of the Patent Act. In cases where infringement allegations involve medical practitioners or physicians performing medical procedures on patients in violation of an asserted method claim, these parties are immune from all remedies associated with the alleged infringement.
The Plaintiffs contended that Brain Frequency is neither a medical provider nor a facility where medical providers practice medicine.
Wave filed a motion to strike Brain’s expert report of Dr. Jared Dempsey under Federal Rule of Evidence 702. The Court granted Wave’s motion “without prejudice to the extent Brain can cure the deficiencies with Dempsey’s qualifications.” Two weeks later—on October 17, 2024—Brain filed a “Notice of Cure.” This included a revised declaration by Dempsey which, among other things, detailed his involvement in the Study. Brain also filed, under seal, the study itself. Brain contended that this information cured the deficiencies.
Psychology Expert Witness
Jared P. Dempsey, Ph.D. serves as Chief Scientist at Trac9 Informatics. Dempsey is actively involved in neurological and physiological research in addiction.
Recent publications include preliminary evidence for a biological marker of addiction recovery, non-conscious emotional response to drug stimuli, and the influence of social anxiety on addiction treatment.
Dempsey has also served as an expert reviewer for the Journal of Motivation and Emotion, Psychopharmacology, Journal of Psychopathology and Behavioral Assessment, American Journal on Addictions, Addiction, Psychiatry Research, European Psychiatry, Nicotine and Tobacco Research, and the Journal of Studies on Alcohol and Drugs.
Dempsey was also actively involved in the development of a comprehensive symptom tracking and outcome data collection tool for addiction treatment, Trac9.
Initially, the Court held that Dempsey did not have the proper qualifications because there was insufficient evidence to demonstrate he had “advanced training or experience” in Transcranial Magnetic Stimulation (“TMS”). The Court found that the reference to a single research project related to TMS from May 2022–April 2024 (the “Study”) on Dempsey’s curriculum vitae, without further information, did not establish that he had a “hands-on or technology-facing” role.
However, Dempsey attests that he directly participated in the treatment of subjects using TMS and EEG technology, that he outlined the precise treatment protocols used in the study, and that he participated in the actual application of TMS using EEG and certain software to gauge the effects. This appeared to be a “forward-facing role.” Dempsey further states he has worked on the Study since 2022 for over 1,000 hours, along with months of preparatory work.
Wave’s Objections
The Court held that Wave’s two objections are unavailing. First, Wave maintained that Dempsey is not qualified to opine as a person of ordinary skill in the art (“POSITA”). Its primary qualm is that Dempsey does not explain “the nature of actual TMS treatments provided.” But the Study itself explains the nature of the treatments. And the Court does not see how the “nature of the treatments,” or what the TMS treatments were targeted to, would affect whether Dempsey is a POSITA. Wave’s own proposed definition of a POSITA is not cabined to a specific type of TMS treatment.
Second, Wave also claims that it will suffer undue prejudice if Brain is granted relief. The Court does not see how Dempsey’s testimony, if any, would prejudice Wave. Wave has been on notice of Dempsey’s testimony since at least May 2024 when Brain filed its opening claim construction brief. The October 2, 2024 status conference proceeded under the assumption that Dempsey would testify at the Markman hearing. The Court explicitly granted Brain an opportunity to cure the deficiencies in its designation. The Court added that any assumption on Wave’s part that Dempsey’s conclusions or testimony would be permanently excluded was unwarranted.
Because Brain has cured the deficiencies in Dempsey’s designation as a POSITA, the Court vacated the order granting Wave’s motion to strike. Wave may, of course, seek appropriate discovery, including an abbreviated deposition of Dempsey, to inquire into issues that impact the credibility and weight of his testimony (e.g., his background, experience, and any other appropriate matters). Such discovery will be sufficient to cure any “prejudice” that Wave has suffered in the past three weeks.
Held
The Court held that the that the order granting motion to strike Brain Frequency’s expert Jared Dempsey is vacated, and Wave’s motion to strike Dempsey is denied.
Key Takeaway:
Initially, the Court held that Dempsey did not have the proper qualifications because there was insufficient evidence to demonstrate he had “advanced training or experience” in Transcranial Magnetic Stimulation (“TMS”). Two weeks later, Dempsey submitted a revised declaration which, among other things, detailed his involvement in the Study. The Court found that Dempsey directly participated in the treatment of subjects using TMS and EEG technology, that he outlined the precise treatment protocols used in the study, and that he participated in the actual application of TMS using EEG and certain software to gauge the effects.
Case Details:
Case Caption:
Wave Neuroscience, Inc. V. Brain Frequency Llc Et Al
Plaintiffs Richard Dennis, Port 22, LLC, and Michael Glass asserted Commodity Exchange Act and Sherman Antitrust Act claims, alleging that the Andersons, Inc. and Cargill Incorporated, who were supposed competitors, operated multiple grain storage warehouses in Ohio and collaborated to manipulate prices of soft red winter wheat futures and options contracts on the Chicago Board of Trade.
According to the Plaintiff, the Andersons, Inc. sold SRW wheat to the major purchasers in October and November 2017 to suppress demand for physical SRW wheat and then, on November 29, 2017, registered for delivery two thousand certificates of CBOT December 2017 SRW wheat.
This registration (falsely, Plaintiffs say) signaled that TAI would sell ten million bushels of physical SRW wheat to parties holding long positions in December 2017 SRW wheat futures and caused a marked price decrease in the December 2017 SRW wheat futures contract and widened the spread between the December 2017 and March 2018 SRW wheat futures contracts.
TAI and Cargill later repurchased some of the shipping certificates TAI had delivered at the decreased prices. Plaintiffs allegedly transacted in December 2017 and March 2018 SRW wheat futures and lost money because of the decreased prices caused by the scheme.
Plaintiffs’ expert Craig Pirrong opined in relevant part that Defendants artificially depressed prices of the December 2017 and March 2018 SRW wheat futures through a market manipulation that injured Plaintiffs on a class-wide basis; Pirrong also provided a methodology for determining individual damages. Through the report of their expert, Professor Justin McCrary, Defendants purported to challenge the reliability of Pirrong’s studies. Plaintiffs attacked Professor McCrary’s qualifications.
Economics Expert Witnesses
Justin McCrary is an “economist with expertise in microeconomics, economic modeling, and statistical method,” who teaches at the Law School at Columbia University. He has taught courses on economic theory econometric theory, antitrust, law and economics, and statistics and is a reviewer for leading peer-reviewed economics journals. He served on the Board of Directors of the American Law and Economics Association and has published papers in prominent economic journals.
Craig Pirrong‘s extensive qualifications includes approximately 30 years of concentrating professionally on competition and manipulation of prices with a focus on Chicago Mercantile Exchange wheat, soybean, and corn futures contracts; publishing a dozen peer-reviewed articles and a book on commodity futures manipulation and pricing; presenting to and consulting with federal agencies on manipulation; and testifying as an expert.
Plaintiffs argued McCrary: (1) is unqualified to give an opinion in this class action alleging market manipulation in wheat futures and options; (2) tenders opinions that are unreliable because they lack a scientific basis and he has never performed such quantitative work before; and (3) offers irrelevant opinions.
McCrary’s Qualifications
Plaintiffs insisted McCrary is unqualified to render an opinion in the realm of the commodity futures market, a conclusion they say is underscored by his professed unfamiliarity with “basic industry terminology” like “front month,” “spot month,” “strong stopper,” and “cash contract.”
The Court held that Plaintiffs’ surface-level attack on McCrary’s background and education is insufficient to demonstrate his lack of qualification, and the Court declines to exclude McCrary’s opinions, which Plaintiffs do not deny are rooted in statistics and economics, merely because he neither purports to be nor appears to be an expert in commodities futures trading or manipulation.
Reliability of McCrary’s Opinions
Plaintiffs argued McCrary’s opinions are unreliable, first, for lacking a scientific basis—because he opines Pirrong’s analyses fail to account for confounding fundamental factors that McCrary himself neither identified nor analyzed to determine any potential impact. But, as Defendants retort, that was not McCrary’s task; neither Daubert nor Rule 702 required McCrary to perform independent studies.
Although Plaintiffs labelled McCrary’s analysis thin and McCrary a mere mouthpiece for the defense, the Court finds he sufficiently explained the underpinnings for his opinions, which flow from his review of relevant literature, his expertise, experience and knowledge.
Finally, Plaintiffs attacked an isolated sentence of McCrary’s opinion regarding Pirrong’s event study and further attacked his criticism of Pirrong’s damages model because McCrary had “never worked with” data types he used in performing his calculations. The Court agreed with Defendants that the former argument takes McCrary’s statement out of context , and the latter argument lacks force because Plaintiffs identified no errors in McCrary’s calculations.
Relevance of McCrary’s Opinions
Plaintiffs finally briefly recycle most of the foregoing arguments, which the Court already has rejected, into an argument that Professor McCrary’s opinions will not help the trier of fact. Again, the Court disagreed. Although Professor McCrary does regurgitate some record evidence (such as that SRW wheat would be aging between December 2017 and March 2018), he does not merely repeat evidence but adds his opinions to the evidence he recites, including that Pirrong should have accounted for the aging of the wheat and other factors. For these reasons and those set forth above in addressing Plaintiffs’ prior arguments, the Court declines to strike McCrary’s opinions because they are relevant to understanding and analyzing Pirrong’s opinions regarding class certification.
Craig Pirrong
Plaintiffs proffered their expert witness, Dr. Craig Pirrong, an economist, who intended to testify that Defendants’ alleged manipulation artificially deflated prices in the December 2017 and March 2018 SRW wheat futures markets and caused damages to the proposed class that are capable of calculation on a class-wide basis.
In support, he presented: (1) an event study with regression analysis meant to measure the existence and amount of alleged price-artificiality in the December 2017 and March 2018 SRW futures and options contracts that is attributable to Defendants’ conduct rather than chance or other market factors; and (2) a damages model that takes the output from the event study as an input to calculate a range of aggregate damages. Such models may meet Plaintiffs’ burdens at the class certification stage.
A.Pirrong’s Event Study with Regression to Predict “But For” Wheat Prices
Pirrong first employed an event study with regression analysis intended to predict what prices would have been absent Defendants’ actions and statements.
In the context of this case, Pirrong’s regression model uses other grain commodities traded on CBOT as control variables; he estimates the historical relationship among the SRW wheat futures prices and the control variables by using “a control period consisting of data from March 1 to November 29 for the CBOT wheat futures contract for each year from 2005 through 2017.”
According to Pirrong, the model computes what would have been, but for Defendants’ conduct, the prices for December 2017 and March 2018 SRW wheat futures for each trading day between November 30, 2017 and December 14, 2017. He attributed the difference between his model’s output of estimated prices for December 2017 and March 2018 SRW wheat futures prices and the actual December 2017 and March 2018 SRW wheat futures prices to a “price artificiality” due to Defendant’s conduct.
Thought Defendants acknowledged that statistical regression is an established methodology, they argued that Pirrong “employed a ‘reliable methodology in an unreliable way” because the “results” are not “statistically significant” under generally accepted statistical principles and lead to an unacceptably high rate of false positives (predicted price manipulation in years in which none is alleged). They insisted that the study “cannot rule out” other potential causes of the SRW wheat futures price changes and has “dubious predictive value.”
1. Statistical Significance
Pirrong himself described p-values as “giving the probability of observing the residual,” which, here, is price artificiality, and conceded that “conventional thresholds” for statistical significance are five percent (0.05) and ten percent (0.1).
Defendants asserted that p-values above 0.05 indicate unreliable regression study results and emphasize “Pirrong offered no thresholds for determining when his event study results should be considered statistically significant,” despite having agreed that one must “choose a threshold” to “establish statistical significance.”
The Court is unconvinced that all of his results should be excluded due to some p-values above 0.05, particularly where seven of eleven days (November 30 through December 8, 2017) within the December 2017 SRW wheat contracts regression analysis returned p-values with statistical significance at the five percent level. Nor does the Court find that Pirrong’s non-articulation of a statistical significance threshold warrants blanket exclusion of his results here.
Second, even if Defendants sought to exclude just dates for which a p-value above 0.05 was returned, the Court under these circumstances declines to adopt a “hard and fast rule” requiring p-values of 0.05 or below, which in essence “evaluates statistical significance as a binary question” where “statistical significance lies at the 4.99% level but not at the 5.01% level.’”
Pirrong also emphasized that “eminent statisticians” have increasingly criticized the use of statistical significance cutoffs “because it is misleading and leads to erroneous conclusions” and that one should avoid “‘dichotomization as statistically significant or not.’”
The Court held that Defendants’ arguments go to the weight, rather than the admissibility, of the regression study results. Pirrong’s event study results in the December 2017 and March 2018 SRW Wheat futures contracts are sufficiently reliable for consideration.
2. Rate of False Positives
Defendants next asserted Pirrong’s study is undermined by the rate of “false positives,” or instances in which Pirrong’s model predicts price artificiality in years in which no manipulation is alleged. Defendants argued the higher the threshold for statistical significance one accepts as to the event study, the higher the rate of false positives the model returns. Accepting, for example, a 43% threshold for statistical significance (drawn from the highest p-value result Pirrong endorses, 0.43, applied across both the December 2017 and March 2018 studies) suggested price manipulation on 85% of the days for which Plaintiffs did not claim manipulation.
Adopting a 5% statistical significance level (which would result in statistical significance for the results of just seven days in the December 2017 study and none in the March 2018 study) garners a 19.66% rate of false positives. Defendants argued that these rates of false positives show the event study does not reflect a reliable application of statistical methods to this case.
Although the explanation regarding false positives is not robust, the Court nevertheless found that Pirrong’s testimony is “closer to shaky than unreliable.”
B. Pirrong’s Damages Estimates
Pirrong proffered damages methodologies to calculate individual damages and estimate aggregate class-wide damages using linear programming (the LP model).
1. Pirrong’s Use of “Permanent Artificiality” in March 2018 SRW Wheat Futures from December 14, 2017 through March 14, 2018
Defendants first attacked Pirrong’s opinion that the March 2018 SRW wheat futures contract had a permanent fixed artificial price depression of 1.2¢ per bushel from December 14, 2017 to March 14, 2018. Defendants asserted this use of a constant 1.2¢ residual is undermined by Pirrong’s choice to use a day-to-day approach for other transactions, as well as his opinion that publicly available information is immediately incorporated into the SRW futures marketplace.
Pirrong, though, opined that Defendants “distorted consumption by making excessive deliveries,” only a “fraction” of which they later repurchased, causing immediate consumption of wheat that “should have remained in storage for consumption later.” The effects of their actions “persisted into the indefinite future beyond November 30, 2017,” thus “distorting supply-demand fundamentals far into the future” and causing ongoing effects on prices. This price artificiality, Pirrong asserted, would remain constant after the December 2017 SRW wheat contract expired both because Defendants’ actions in the December contract could not affect prices after the expiration, and in an efficient futures market, the impacts of Defendants’ actions would be reflected in prices quickly and permanently.
Pirrong’s explanation provides support for his choice. And, despite Defendants’ attack, the Court held that his testimony is not “unsupported ipse dixit” because, rather than “pluck his conclusions out of thin air” he reviewed the identified records, performed studies, and applied his extensive experience in futures markets to reach those conclusions.
2. Outputs of the Damages Model
Defendants challenged the LP Model outputs for the model’s reliance “on the daily artificiality residual (i.e., the daily artificiality estimate produced by the event study) to calculate hundreds of thousands of hypothetical possible trade scenarios and conjures a supposed aggregate damage range for class members,” because it “cannot be applied to estimate the loss for any class member,” includes “computational errors that artificially inflate the damages estimate,” and did not “account for characteristics specific to many entities and individuals included in the group Pirrong purports to study,” like intraday traders and traders with offsets.
The Court held that Pirrong’s calculations, based upon his event studies, are sufficient to meet Plaintiff’s low burden here.
Defendants’ argument that “the LP model has several computational errors that artificially inflate the damages estimate” did not suggest damages cannot be calculated on a class-wide basis, and the Court is not seeking to calculate actual damages at this stage. As Plaintiffs point out, Defendants’ related argument that Pirrong’s model did not account for the characteristics of certain traders, boils down to an argument that some members of the defined class “ultimately were not harmed” by Defendants conduct, i.e., that their claims “will fail on the merits if and when damages are decided,” which is “a fact generally irrelevant to the district court’s decision on class certification.”
C. State-of-Mind Opinions and Legal Conclusions by Pirrong
Defendants argued that “Pirrong, an economist, lacks an analytically sound basis for ostensibly psychological conclusions” about Defendants’ “knowledge or intentions.”
The Court held that Pirrong properly may testify regarding “conclusions drawn only in his capacity as an economist.” This includes opining on potential economic motives of a party but not testimony of what a party knew because Pirrong is not more qualified than an ordinary juror to make the latter inferences.
Held
The Court denied Plaintiffs’ motion to exclude the testimony of Professor Justin McCrary, and the Court granted in part and denied in part the Defendants’ motion to exclude the testimony of Craig Pirrong.
Key Takeaways:
Professor McCrary neither purports to be nor appears to be an expert in commodities futures trading or manipulation but his opinions are rooted in statistics and economics.
The Court, like many others presented with the question, declines to use statistical significance at the five percent level as a proxy for reliability, and thus admissibility, for the purposes of Rule 702 and Daubert. Considering the entire data set presented, Pirrong’s explanations, and the class definition Plaintiffs propose regarding transactions of December 2017 and March 2018 SRW wheat set forth above, Defendants’ arguments go to the weight, rather than the admissibility, of the regression study results.
First, the Court has resolved the related argument regarding p-values, finding they do not render Pirrong’s testimony inadmissibly unreliable, in large part due to Pirrong’s explanation that “sound economic reasoning” indicates the impact of Defendants conduct would not have dispersed within days, despite the p-value results, and the spread was wider than anticipated for the December 2017 through March 2018 SRW wheat futures. Because Defendants’ false positives argument spins off from the p-values discussion and applies an across-the-board 43% threshold for statistical significance not adopted by Pirrong, the Court is disinclined to reach a different result here. Second, Defendants point to no flaws in Pirrong’s inputs to his studies. Defendants may explore false positives or other questions as to Pirrong’s studies through traditional evidentiary mechanisms.
Legal conclusions are inadmissible, while state-of-mind testimony is admissible where helpful to the jury and its probative value is not outweighed by a risk of unfair prejudice. The admissibility of alleged state-of-mind assertions is more nuanced. Direct opinions regarding state of mind are improper, although an expert may testify regarding the consistency of a certain action with a particular state of mind.
In October 2020, Sentilles (Plaintiff) was diagnosed with mesothelioma and subsequently filed a case asserting negligence and strict liability claims against multiple defendants, including Avondale (Defendant). He claimed that his asbestos exposure from the 1950s to the 1980s caused his illness. Sentilles stated that he was personally exposed to asbestos while working at Avondale’s shipyard in 1969. He also alleged secondary exposure from his brother, Tom Sentilles. Tom’s work clothes contained asbestos while they lived and commuted together during his employment at Avondale.
In his deposition, Sentilles testified that during May and June 1969, he worked in Avondale’s insulation shop sewing asbestos blankets for ships under construction. At that time, Avondale was building vessels under contract with the U.S. Navy, Coast Guard, and the United States Maritime Administration (MARAD), and he recalled that some of the asbestos blankets were installed on Navy ships.
Avondale’s Compliance with Federal Inspection Standards
Avondale was constructing vessels for the U.S. government, it raised affirmative defenses, including derivative sovereign immunity and government contractor immunity. To support these defenses, Avondale hired marine engineer and former Navy officer Herfel as an expert witness. Herfel issued two reports analyzing the specifications, policies, and knowledge of the Navy, Coast Guard, and MARAD regarding the use of asbestos materials on their ships.
Herfel’s reports began by outlining his qualifications. He then described the case-specific evidence he reviewed, including various depositions, Sentilles’s Avondale employment records, and vessel construction contracts and specifications. He also researched records pertaining to the government ships constructed and repaired at Avondale before, during, and after Sentilles’s employment at the shipyard.
Herfel essentially rendered two opinions. First, he opined that the government, as stated in its contracts and vessel specifications, required asbestos-containing materials to be used on its vessels, and Avondale was required to act in “strict compliance” with that requirement. Federal inspectors regularly inspected Avondale to ensure compliance. Second, Herfel explained that the government’s research on the health hazards posed by asbestos dates back to the 1940s and concluded that a private-sector shipyard, such as Avondale, could not have had greater knowledge of those hazards than the federal government.
Maritime Expert Witness
Christopher P. Herfel earned a Bachelor of Science degree in marine engineering, with a minor in shipyard engineering management. He served eight years as a commissioned officer in the United States Naval Reserve. He held a Coast Guard-issued third assistant engineer’s license for steam and diesel propulsion, with unlimited horsepower. Herfel worked as a shipyard superintendent, managing the repair and overhaul of various military and merchant vessels. This work included asbestos abatement projects. He later served as the president and chief executive officer of McCaffery & Associates, Inc. This company specialized in researching and analyzing Navy, Coast Guard, and other government documents related to ship design, construction, maintenance, and repair. For the past 21 years, Herfel has researched and interpreted contracts, specifications, and records concerning materials used in the construction, maintenance, and repair of federal vessels.
Sentilles argued that Herfel’s testimony and opinions should be excluded from trial, citing a lack of qualifications and improper methodology. He claimed that Herfel was unqualified because he was not an industrial hygienist and lacked a degree in naval or maritime history or policy. Additionally, Sentilles criticized Herfel’s methodology, arguing that he had not reviewed relevant documents about Avondale’s asbestos history, that his references to OSHA and safety standards were irrelevant, and that he had no experience interpreting contracts. Sentilles also contended that Herfel’s former status as a Navy officer might mislead the jury into believing he spoke on behalf of the government.
In response, Avondale defended Herfel’s qualifications, emphasizing his education, work experience, and research. They stated that Herfel’s training and experience made him uniquely qualified to explain the historic policies and practices of the Navy, Coast Guard, and MARAD concerning asbestos-containing materials. Avondale clarified that it did not present Herfel as an industrial hygienist or shipyard historian. It argued that his lack of a history degree was irrelevant since his expertise stemmed from years of research and experience. Furthermore, Avondale contended that Herfel’s methodology was sound and did not require peer review because his field was not scientific. They asserted that Herfel’s testimony would help the jury understand complex government records related to shipbuilding.
Helpfulness to the Jury
The Court, considering both sides’ arguments and Herfel’s qualifications, ruled that he was qualified to testify. It found his opinions relevant and reliable. The Court noted that Herfel’s experience as a marine engineer and Navy officer, along with his two decades of research, made him well-suited to explain the government’s shipbuilding practices and asbestos policies. The Court concluded that Herfel’s testimony would assist the jury in understanding the government’s role in requiring asbestos on vessels. It also highlighted Avondale’s compliance and the historical information about asbestos hazards.
Held
The Court ordered that Sentilles’s motion in limine to exclude Christopher Herfel be denied.
Key Takeaway:
The Court ruled that the expert’s qualifications and the reliability of their testimony were sufficient for admissibility. It highlighted the necessity for the district court to serve as a gatekeeper. This role ensures that expert opinions assist the jury and are based on reliable methodologies. The Court noted that the factors for assessing the reliability of expert testimony, as established in precedent, should be flexible and tailored to the specifics of each case. Furthermore, the Court pointed out that challenges to an expert’s opinions should be addressed through cross-examination rather than exclusion. It emphasized the need for jurors to consider the expert’s insights alongside the arguments presented by attorneys.
Case Details:
Case Caption:
Sentilles v. Huntington Ingalls Inc.
Docket Number:
2:21cv958
Court:
United States District Court for the Eastern District of Louisiana
Plaintiff Ashley Fawcett was in a car accident in 2017, while she was covered by an insurance policy issued by Defendant Standard Fire Insurance Company (doing business as Travelers Insurance Company (“Travelers”)). Fawcett opened claims with Travelers, and alleged in this lawsuit that Travelers unreasonably investigated and evaluated her claim for underinsured motorist (“UIM”) benefits.
Travelers filed a motion to exclude the testimony of Fawcett’s expert Mary Owen because her opinions consisted of legal conclusions on the ultimate issue, namely whether Travelers’ conduct was unreasonable or violates insurance regulations. Travelers also contended that Owen lacked the experience or qualifications necessary to allow her to testify as an expert as to proper claim-handling procedures.
Insurance Expert Witness
Mary E. Owen is widely regarded as an authoritative expert in the field of insurance defense litigation. She is experienced in all aspects of civil litigation, from commencement to resolution, by way of dismissal, negotiated settlement, alternative dispute resolution, and jury trials.
Fawcett emphasized the portions of Owen’s testimony that pertained to issues of fact and accused Travelers’ expert of including legal conclusions in his testimony. Fawcett also contended that to the extent that any legal conclusions need to be excluded from Owen’s testimony, this issue is the proper subject of a motion in limine, rather than a broad motion to exclude.
The Court agreed with this approach, finding that wholesale exclusion of Owen’s testimony and report would be inappropriate. Owen’s declaration submitted in support of Fawcett’s opposition to Travelers’ summary judgment motion does contain opinions regarding Travelers’ compliance (or non-compliance) with industry standards, but some portions could also be characterized as legal conclusions outside her purview as an expert.
The report attached to Owen’s declaration references legal conclusions to a lesser degree: she opined that Travelers’ conduct violated certain standards and was unreasonable, but does not, for example, conclude that this conduct constitutes bad faith. The Court did not rely on Owen’s legal conclusions in resolving Travelers’ summary judgment motion, and it can excise the legal conclusions from Owen’s trial testimony via a motion in limine.
Travelers’ second argument, as to Owen’s expertise, also failed to persuade the Court that Owen’s testimony should be excluded entirely. Travelers has not shown that Owen is categorically unqualified to serve as an expert in this case, given Owen’s years of experience in the relevant field. To the extent that Travelers disputed whether Owen’s experience was sufficiently particularized as to be useful in this case, this argument goes to the weight that should be given to Owen’s testimony, rather than its admissibility.
Held
The Court denied Travelers’ motion to exclude Mary E. Owen’s testimony.
Key Takeaway:
While the Court acknowledged that expert witnesses cannot offer legal conclusions, it determined that fully excluding Owen’s testimony was unnecessary. The Court found that a motion in limine could resolve any concerns regarding legal conclusions in her testimony, allowing her opinions on industry standards to remain. Additionally, the Court ruled that any questions about Owen’s experience concerned the weight accorded to her testimony, not its admissibility.
Case Details:
Case Caption:
Fawcett V. The Standard Fire Insurance Company
Docket Number:
2:23cv248
Court:
United States District Court for the Western District of Washington
VEC, Inc. accused Joyce Electrical Inc. and Hudson Insurance Co. of breaching a building contract between the parties, after Williams Field Service Company LLC awarded VEC a contract to build an electrical substation and distribution line.
After soliciting bids for subcontractors to do the electrical work on the project, VEC hired Joyce. Joyce eventually fell behind on their contractual obligations, prompting VEC to prepare a recovery plan. Joyce allegedly failed to meet the obligations outlined in the recovery plan as well, and allegedly abandoned the project. As a result, VEC had to have other contractors finish the unfinished work. Delays in the project caused VEC to incur $280,000 in liquidated damages to Williams.
Accordingly, VEC filed this action against Joyce and Hudson to collect their losses on the project, which include liquidated damages paid to Williams, additional costs paid to subcontractors to complete Joyce’s obligations, increased overhead and job costs, and lost profits, which total $1,403,035.40 plus interest.
George P. Ellis is an experienced Senior Construction Consultant who provides Construction Consulting and Expert Witness services to Contractors, Subcontractors, Owners, Architects, Engineers, Developers, Insurance Companies, Attorneys, etc. for projects located throughout the U.S. Ellis’ Construction Consulting and Expert Witness Services expertise includes Critical Path Method (CPM) Schedule Analysis, Delay and Disruption Analysis, Damages Computation and Analysis, Lost Labor Productivity Analysis, Change Order Preparation and Analysis, Defective Work Claim Review and Analysis, Analysis of Work Scope Disputes, Analysis of Project Impacts from Differing Site Conditions, etc.
Defendants sought to preclude the expert testimony and report of Ellis, arguing that he is not qualified to calculate damages, that his evidence is unreliable, and that his evidence does not fit the issues of the case.
Qualifications
First, Defendants averred that Ellis “had no qualifications to opine on damages.”
It was worth noting that Ellis works on projects ranging from consulting to the tabulation of damages for litigation in the construction industry. Ellis also reports extensive experience tabulating construction damages concerning power plants. Based on his qualifications, the Court found Ellis a qualified expert in construction management and damage calculation for this case.
Reliability
Defendants next submitted that the Report is “devoid of any actual analysis, is full of misrepresentations of the discovery record, and is rife with impermissible conclusions of law.” Additionally, Defendants contended that the opinions of Ellis contain no methods or procedures and are unreliable.
The Court held that the the Report’s analysis relies heavily on Ellis’s practical experience. Ellis extensively analyzed the record’s construction documents to reach his conclusions. Additionally, Ellis buttresses some of his arguments with independent data, including weather data.
The Court concluded that Ellis used objective grounds to come to his conclusions. Any factual discrepancies do not defeat the reliability of Ellis’ expert evidence, as Defendants will have the ability to cross-examination Ellis on these issues at the time of trial.
Fit
Finally, Defendants submitted that “Ellis’ opinions do not fit the case and will not help the factfinder understand any evidence or decide any fact in dispute.” Basically, Defendants argued that the case is too straightforward for expert interpretation and that his “net opinions, or ipse dixit, should be excluded from evidence because they “would be completely unhelpful or harmful to the trier of fact.”
The Court found that the issues in the case were sufficiently industry-specific to allow an expert to aid the trier of fact. Due to his practical experience and thorough report, Ellis’s expert evidence fit the issues in this case. However, to the extent Ellis’s conclusions ventured into legal conclusions, the Court proceeded to exclude them. Otherwise, Ellis’s evidence sufficiently fits the issues of this case under Federal Rule of Evidence 702.
Held
The Court granted in part and denied in part the Defendants’ motion in limine to preclude the expert testimony of George P. Ellis.
Key Takeaways:
Daubert factors such as peer review, publication, and potential error rate “simply are not appliable, when the reliability of testimony from a practical expert depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.”
The practical experience expert’s evidence can fit the issues of the case by utilizing the available facts and his practical experience to help the trier of fact navigate complex industry-specific matters.
Class Representatives Peter Trauernicht and Zachary Wright (“Plaintiffs”), on behalf of themselves, the Genworth Financial Inc. Retirement and Savings Plan (the “Plan”), and all other similarly situated individuals, filed suit against Genworth Financial, Inc. (“Genworth” or “Defendant”) alleging that Genworth breached its fiduciary duties under the Employee Retirement Income Security Act.
Plaintiffs claimed that Genworth violated its fiduciary duties under ERISA by failing to appropriately monitor, and as a result, imprudently retaining the BlackRock LifePath Target Date Funds (“BlackRock TDFs”) in the Plan despite their significant underperformance. According to Plaintiffs, the retention of the BlackRock TDFs caused the Plan to incur substantial losses.
Genworth produced two expert reports in response to Plaintiffs’ experts. Genworth retained Lorie L. Latham to offer opinions regarding the Plan’s governance structure and monitoring process. Latham opined that the Plan’s governance structure and monitoring processes of the BlackRock TDFs were reasonable and consistent with widely accepted retirement plan fiduciary practices.
Genworth also retained Dr. Russell R. Wermers who explained that the BlackRock TDFs are economically reasonable investments once you account for their specific risk-balancing strategies and features, including their asset allocations and glide paths.
Finance Expert Witnesses
Russell R. Wermers is the Paul J. Cinquegrana ’63 Endowed Chair in Finance at the Smith School of Business, University of Maryland at College Park. Wermers’ research focuses on analyzing investment strategies of professional asset managers, including how to properly measure the risk-adjusted performance of such strategies. He has published in academic and professional journals on investment fund performance evaluation, equity strategies, the drivers of mutual fund and hedge fund investor flows, and the behavior of institutional investors. He has also previously testified as an expert on numerous ERISA cases involving 401(k) and other defined contribution plans.
Lorie L. Latham is the founder and president of L. Latham Consulting, LLC, an independent consultancy where she provides financial and strategic advice to financial firms and retirement plan fiduciaries, boards, and committees. Before that, Latham served in senior executive and consulting roles advising on strategies and investment selection for defined contribution plans. That work involved guiding plan fiduciaries in establishing reasonable and appropriate governance and monitoring practices for their defined contribution plans. Latham has also co-authored numerous publications, including articles on defined-contribution plan governance decision making.
Whether Wermers and Latham Have Specialized Knowledge That Will Assist the Trier of Fact under Rule 702(a)
Wermers’ Qualifications and Opinions
Plaintiffs argued that Wermers lacked the relevant qualifications to address the issues in this case because he has no experience with retirement plan investing, including the monitoring responsibilities of investment fiduciaries governed by ERISA. He has never served as a fiduciary nor advised a retirement committee.
The record does not provide, and the Court does not see, any reason why an expert must be trained in fiduciary monitoring or ERISA, as opposed to general investment theory, to testify on the relative performance and comparability of various target date funds to aid the trier of fact in the determination of whether the BlackRock TDFs violated the Plan’s Investment Policy Statement’s (IPS) criteria.
The fact that Wermers’ offers more generalized opinions on the BlackRock TDFs and their comparators rather than opinions directly tied to fiduciary monitoring goes to the weight rather than admissibility of his testimony.
Latham’s Qualifications and Opinions
Plaintiffs also argued that Latham did not have specialized expertise or knowledge that will assist the trier of fact. Plaintiffs said that her experience came from generalized personal observations and work experience while consulting with plan sponsors and discretionary fiduciaries.
The Court found that, based on that experience, Latham has the requisite qualifications to assist the trier of fact regarding plan governance and fiduciary monitoring standards. The degree of connection between her experience and her opinions goes to the weight of her testimony. At trial, Plaintiffs will have the opportunity to cross-examine Latham on the relevancy of her experience and how that experience has informed her opinions.
Whether Latham’s and Wermers’ Opinions Are Supported by Reliable Principles and Methods
Whether Wermers’ Economic Reasonableness Analysis is Based on Reliable Principles and Methods
Plaintiffs argued that Wermers’ assessment of “economic reasonableness” is not based on any method or discipline recognized within his industry, and instead, is based on his own subjective view of what represents an “attractive combination” between risk and return.
The Court disagreed. Plaintiffs’ complaint is essentially that Wermers’ concept of “economic reasonableness” is not reducible to a rigid, rules-based methodology. However, a formulaic methodology is not required for a witness to offer an expert opinion. Wermers relied on his specialized knowledge and experience to offer guiding principles on how to evaluate and compare the performance of target date funds, and he applied those principles to the BlackRock TDFs under a standard he calls “economic reasonableness.”
Wermers explained that an “economically reasonable” investment is one that “offers ex-ante an attractive combination of risk and return” based on its “qualitative and quantitative characteristics and its investment strategy.” Rather than a term of art, economic reasonableness is just another way of saying an investment is reasonable from an economic perspective.
Plaintiffs did not challenge the reliability of any of Wermer’s specific analyses or conclusions, only that his overarching concept of “economic reasonableness” lacked clear guiding rules and principles.
The Court found that Wermers’ opinions are reliable because he thoroughly articulated his specialized knowledge on the evaluation of target date funds with supporting citations to peer-reviewed articles and other industry sources, and then he applied that knowledge in evaluating the “economic reasonableness” of the BlackRock TDFs and in criticizing Marin’s analyses.
Whether Latham’s “Accepted Fiduciary Practices” Analysis is Based on Reliable Principles and Methods
Plaintiffs argued that Latham’s testimony is unreliable because her opinions on “accepted fiduciary practices” are based on her work experience with unspecified clients rather than any specified method or discipline recognized within her industry. Her failure to explain how her opinions derive from those client experiences, without other guiding industry standards, makes her testimony unreliable according to Plaintiffs.
However, the Court is satisfied that Latham has the requisite experience to provide reliable experience-based opinions on the topics she addresses at this stage.
Second, Plaintiffs claimed that Latham’s opinions are unreliable and unhelpful ipse dixit because she did not rely on any objective, consistent, or rules-based analytical approaches for what she calls “accepted fiduciary practices.”
The Court held that rules-based standards are not necessary for an expert’s opinion to be the product of reliable principles and methods, particularly when the testimony is not scientific in nature. Latham explained that “there’s not a written checklist” of accepted practices and “[p]lan governance structures vary, depending upon the size and culture of the plan sponsor, the type of plan, and other factors.”
Consequently, in her report, Latham reviewed the specific practices of the Genworth Committee from the evidentiary record, and explains whether, in her professional experience, those individual practices comport with the typical industry practices she has observed over her decades-long career. Latham is permitted to rely on her experience to testify in that capacity. The Court held that Plaintiffs’ concerns over the objectivity of Latham’s opinions and the specific experiences on which she relies can be addressed on cross-examination and with contrary evidence.
Whether Latham and Wermers Reliably Applied Their Principles and Methods to the Facts of the Case
Whether Wermers Reliably Applied His Principles and Methods to the Facts of the Case
Plaintiffs argued that Wermers failed to fully consider the IPS in his analysis and relied on other data that was cherry-picked and never relied on by the Plan’s fiduciaries. According to Plaintiffs, that made Wermers’ analysis irrelevant to whether the Plan’s fiduciaries acted prudently in retaining the BlackRock TDFs. Plaintiffs also claimed that Wermers ignored discrepancies between his data and the data presented in materials provided to the Genworth Committee.
The Court held that Wermers was primarily retained to offer an opinion on whether the BlackRock TDFs were an “economically reasonable” investment and to rebut Marin’s conclusions, particularly those based on his ex-post performance comparisons of the BlackRock TDFs to other funds and benchmarks. Therefore, Plaintiffs’ criticisms about “the lack of references to the Plan’s Investment Policy Statement does not undermine the reliability of [Wermers’] methodology” because that methodology was not predicated on evaluating the BlackRock TDFs’ performance against the IPS’s criteria.
For the same reasons, it was not problematic for Wermers to have relied on external data which was not provided to the Genworth Committee. For instance, Wermers looked at third-party analyst ratings of the BlackRock TDFs as well as the BlackRock TDFs’ prevalence in the broader retirement plan market to demonstrate that Marin’s views on the BlackRock TDFs’ performance were not widely held among the industry. The Court held that using such data was not irrelevant or unreliable “cherry-picking.”
When Plaintiffs said that Wermers ignored discrepancies between his data and the data presented to Genworth’s Committee, the Court held that it would seem appropriate for Wermers to use that data if Plaintiffs’ own expert also used it.
Whether Latham Reliably Applied Her Principles and Methods to the Facts of the Case
Plaintiffs argued that Latham failed to sufficiently consider the Plan’s IPS in forming her opinions. According to Plaintiffs, Latham stated that the Plan’s IPS was merely a non-binding, guiding document even though the Plan’s fiduciary counsel provided advice to the Genworth Committee that the IPS was a binding, Plan document.
Plaintiffs did not dispute that Latham reviewed and relied on the IPS in forming her opinions. Instead, Plaintiffs disagreement was over Latham’s understanding of the IPS’ effect.
Since, the dispute appeared to be over what constituted a violation of the IPS, not whether the IPS is a legally binding plan document or not. The Court held that just because the Plaintiffs disagreed with Latham’s understanding of the IPS’ effect did not mean she failed to reliably apply her methods to the facts of the case.
Whether The Testimony Is Admissible Under Rule 403
Plaintiffs argued that Wermers’ and Latham’s testimony should also be excluded under Rule 403 because it threatens to mislead or confuse the issues for the same reasons already discussed.
Having found Wermers’ and Latham’s testimony to be admissible under Rule 702, the Court also finds that their testimony is generally admissible under Rule 403 for the reasons discussed. Moreover, in a bench trial, the risk that an expert’s testimony will be unduly confusing or misleading is much lower and excluding evidence under Rule 403 for such reasons is generally not appropriate.
Held
The Court denied Plaintiffs’ motion to exclude opinions and testimony of Lorie L. Latham And Russell R. Wermers, Ph.D.
Key Takeaways:
Wermers’ opinions are reliable because he thoroughly articulated his specialized knowledge on the evaluation of target date funds with supporting citations to peer-reviewed articles and other industry sources. Also, Plaintiffs’ concerns over the objectivity of Latham’s opinions and the specific experiences on which she relies can be addressed on cross-examination and with contrary evidence.
Case Details:
Case Caption:
Trauernicht, Et Al. V. Genworth Financial Inc., Et Al.
In November 2020, Defendant and another deputy were attempting to serve felony arrest warrants on Jacob Settle and Sophronia Whitehead at their residence. When the deputies arrived, Settle was in the driver’s seat of a truck. Settle did not comply with the deputies’ commands to exit the truck, and he started the truck and took it out of park. Then, according to Defendant, the truck backed up before starting to move forward towards him. Defendant fired two shots into the truck, killing Settle.
In November 2022, the personal representative of Settle’s estate (Plaintiff) filed this suit against Defendant, the other deputy at the scene, and the Escambia County Sheriff.
The propriety of Defendant’s use of deadly force against Settle will likely depend on whether he reasonably believed that he was at risk of being struck by the truck when he fired the shots into the truck. That, in turn, may depend on whether the truck was moving and where Defendant was in relation to the truck’s actual or potential path of travel when he fired.
To support her position that Defendant was not at risk of being struck by the truck when he fired the shots that killed Settle, Plaintiff presented the expert testimony of a “forensic services technician,” Kelly Timms. Defendant does not challenge Timms’ qualifications, but he contends that several of her opinions should be excluded because they are beyond her expertise, irrelevant, or based on conjecture or speculation.
Forensic Expert Witness
Kelly Timms worked as a crime scene technician in Maryland for 10 years. Timms attended the University of Findlay, where she completed her Bachelor of Science degree in Biology. Timms continued to Stevenson University and completed a Master of Science degree in Forensic Science. During the last year of the Master Program, Timms began a yearlong internship and was hired as a full-time crime scene technician in the fall of 2013. Timms obtained training for shooting reconstruction, bloodstain pattern analysis, and crash investigation. She has investigated cases involving homicides, shooting incidents, pedestrian crashes, and major drug investigations working with local, state, and federal agencies. Timms has prepared expert reports on bloodstain pattern analysis and shooting reconstruction. Kelly is a Certified Senior Crime Scene Analyst through the IAI.
The first challenged opinion relates to the trajectory of one of the bullets that struck Settle. Defendant argued that this opinion is beyond the scope of Timms’ expertise because it is based on the autopsy report, and she is not a medical professional. However, the Court failed to see how medical expertise was necessary to evaluate the trajectory of a projectile or why Timms cannot rely on the information presented in the autopsy report to formulate an opinion about Defendant’s location when the shots were fired based on the trajectories of the bullets.
The third set of challenged opinions relate to the positioning of Settle’s left hand and body when he was struck by what Timms described as the second shot. Defendant contended that these opinions are beyond the scope of Timms’ expertise because she is not a medical professional and that they are speculative because Timms admitted in her deposition that she could not say with any certainty where Settle was positioned in the truck or which injuries related to which shot. However, the Court held that “absolute certainty is not required” and “the weaknesses in the underpinnings of the expert’s opinion go to its weight rather than its admissibility.”
Timms’ opinion lacks relevance
The second set of challenged opinions relate to Defendant’s location when he shot into the truck and are apparently intended to refute any claim that Defendant was directly in front of the truck when he fired. Defendant contended that this opinion is irrelevant (and, thus, unhelpful) because he never claimed that he was directly in front of the truck when he fired. However, Defendant’s location at the time he fired is a hotly contested fact, and as Plaintiff argues, Defendant’s testimony about this issue in his deposition is susceptible to multiple interpretations. Thus, Timms’ opinion that Defendant was not directly in front of the truck when he fired is relevant and admissible.
Timms’ opinions are based on speculation and conjecture
The fourth challenged opinion relates to Defendant’s location when he shot into the truck and is based on the location of a spent cartridge found at the scene. Defendant contended that this opinion is based on speculation and conjecture because the location of the cartridge is not indicative of Defendant’s location since the yard was full of debris that the cartridge could have bounced off. However, Defendant has not challenged Timms’ qualifications as a crime scene investigator, and as Plaintiff argued, she sufficiently explained how she reached that opinion based on her experience.
The fifth challenged opinion relates to an “observation” made by Timms in her report about the location of an injury on Defendant’s leg in relation to the damage to his pants. However, when asked whether she was offering an opinion on this matter or if it was just an observation, Timms stated in her deposition that this was “just an observation.” Accordingly, there is no opinion related to that observation for the Court to exclude.
Held
The Court denied Defendants’ Daubert motion to exclude the testimony of Kelly Timms.
Key Takeaway:
Defendant did not challenge Timms’ qualifications, but he contended that several of her opinions should be excluded because they are beyond her expertise, irrelevant, or based on conjecture or speculation.
The Court held that the issues raised by Defendant go to the weight of Timms’ opinions, not their admissibility.
A district judge in Oklahoma noted the expert witness’ extensive background in event safety at live events but barred him from testifying because he never inspected the area where Plaintiff fell and ignored relevant statutes and codes.
Plaintiff Boulac sought damages for injuries she allegedly sustained at the Bank of Oklahoma Center (“BOK Center”) in Tulsa, Oklahoma. Boulac was covering the NCAA Basketball Tournament as a member of the CBS Sports crew. She tripped on a cheerleader mat in a walkway.
On February 26, 2024, Defendant SMG identified Steven A. Adelman as an expert to provide an opinion on whether SMG breached or satisfied its duty of care owed to Boulac under Oklahoma law.
Adelman concluded that SMG met its duty of care by ensuring the mat was wholly outside the marked walkway designated for production workers and Boulac failed to meet her duty to maintain reasonable situational awareness. In other words, Boulac’s breach of her own duty of care was a proximate cause of her unfortunate injuries.
Plaintiff Boulac contended that Adelman should be permitted to testify because he lacked the knowledge, skill, experience, or education to qualify as an expert; Adelman’s opinions did not help the jury to understand the evidence or determine the facts in issue; and Adelman’s testimony was not supported by sufficient facts or data, or the product of reliable methods.
Safety Expert Witness
Steven A. Adelman has practiced as an attorney with Adelman Law Group, PLLC, “focusing on risk and safety at live events throughout North America” since 2010. He is the vice president of an international trade association Event Safety Alliance, since 2012. He is the principal author of “Crowd Management,” “Event Security,” “Event Safety Alliance Reopening Guide,” and editor of the forthcoming “Event Safety Guide,” second edition. Adelman was also an adjunct faculty member at Arizona State University, teaching “Risk management in Venues,” and an online “Sports Facilities Management” course.
Defendant SMG retained Adelman to offer testimony about “event safety standard of care.” Plaintiff Boulac contended Defendant SMG “was attempting to pass a litigation-experienced lawyer as an expert witness in a premises liability case.”
Qualifications
Adelman describes himself as “an authority regarding safety at live events, particularly crowd management and event security.” Adelman focuses on risk and safety at live events throughout North America. Plaintiff Boulac argued that Adelman’s “education and work history demonstrated that he lacked the necessary experience to opine on event safety standards of care or Human Factors Engineering principles and definitions.” Adelman testified to never taking any classes on live event operations or crowd management, either during school or since graduation from law school. He admitted to not having any licenses or certifications in these, or the event safety fields.
The Court, however, concluded that Adelman was qualified in the area of event safety because of his extensive background in event safety at live events, including many publications and his position as the vice-president of an international trade association.
Reliability and Relevance
The Court held that Defendant SMG failed to meaningfully satisfy its burden at each step of the Daubert analysis and instead focused solely on the supposed difference between “back of house” and “front of house” standards of care.
To begin with, Adelman’s three opinions—Defendant SMG met its duty of care, Plaintiff Boulac failed to meet her duty, and Plaintiff Boulac breached her duty of care— were all legal conclusions.
Next, the Court concluded that Adelman’s testimony would not help the jury understand the evidence or to determine a fact in issue. As Adelman acknowledged (and as Plaintiff Boulac pointed out), “there is no standard of care that requires venue operators to store thick mats any particular distance away from brightly marked paths of travel in a back of house production area such as BOK Center during an NCAA tournament.”
The Court also agreed with Plaintiff Boulac that testimony on situational awareness did not require specialized knowledge and would be commonly known and easily understood by the jury.
The Court held that Adelman’s opinions were based upon the various court documents filed in this case (complaint, motion for summary judgment, discovery responses), BOK Center contracts, incident reports and depositions. Adelman never inspected the area where Boulac fell and ignored relevant statutes and codes. In conclusion, Adelman’s testimony was not supported by sufficient facts or data, or reliable principles and methods.
Held
The Court granted the Plaintiff Boulac’s motion to exclude the testimony of Defendant’s purported expert, Steven A. Adelman.
Key Takeaways:
Whether Defendant SMG reasonably knew or should have known of the alleged dangerous condition, and whether it acted reasonably in mitigating and protecting against the danger, are factors in determining whether an owner is liable to an invitee under Oklahoma law. This led to the Court rejecting all of Adelman’s three opinions—Defendant SMG met its duty of care, Plaintiff Boulac failed to meet her duty, and Plaintiff Boulac breached her duty of care.
Adelman contended that Boulac failed to meet her duty to maintain reasonable situational awareness. The Court held that testimony on situational awareness did not require specialized knowledge.
The Court found that Adelman never inspected the area where Boulac fell and ignored relevant statutes and codes. In this regard, Adelman’s testimony was based on subjective belief or unsupported speculation
A district judge in Washington ruled that the testimony advanced by an expert on nursing practice was relevant to the Plaintiff’s argument that Chelan County Regional Justice Center’s medical care of inmates is substandard.
Facts of the Case:
Defendant Chelan County Regional Justice Center (“CCRJC”) accepted Blair Nelson into its jail on November 21, 2020. At jail, Blair was suffering from severe alcohol withdrawal. Defendant Licensed Practical Nurse Kami Aldrich attended to her and had to hold her hand so she could get pills into her mouth because she was shaking so much. She was “found” dead in her cell several hours later.
Plaintiff brought this lawsuit on behalf of Nelson’s estate, contending that Blair’s death was preventable and would not have occurred had she received the constitutional minimum of medical care. She left behind four siblings.
Defendants brought a Motion for Summary Judgment and requested the Court to strike the testimony given by three of the Plaintiffs’ expert witnesses: Dr. Richard Cummins, Dr. Lori Roscoe (PhD), and Catherine Fontenot, prior to considering the Motion for Summary Judgment.
Emergency Medicine Expert Witness
Richard Cummins is a Washington State licensed medical doctor who is board certified in both internal medicine and emergency medicine. Cummins has been a member of the University of Washington Department of Internal Medicine and Emergency Medicine since 1981, when he became an attending physician. He was promoted to full professorship in 1985 where he remained for 28 years until retiring from clinical work in July 2020 to Professor Emeritus. During his tenure at the University of Washington Medical Center, he practiced and taught other physicians in the field of emergency medicine, as well as supervised nurses, medical students, and residents in training. Over the course of his career, Cummins has authored more than 150 articles and book chapters on emergency care, including cardiac care.
Lori Roscoe is a Certified Correctional Health Professional and a Certified Correctional Health Professional — Registered Nurse. Roscoe holds a bachelor’s degree in education, a bachelor’s degree in nursing, a master’s degree in public administration with a healthcare concentration, a master’s degree in nursing, a Doctorate Degree in Healthcare Administration, and a Doctor of Nursing Practice degree. She began work in correctional healthcare in 1995 and today is the principal of Correctional HealthCare Consultants LLC and The Correctional Nurse LLC. Roscoe holds an active registered nurse license in the states of Florida, California, Washington, and Georgia, and is licensed as a nurse practitioner in Florida, California, Virginia, Georgia, and Kentucky. Over the course of her nearly 30-year career, Roscoe has worked in a variety of correctional center settings relating to healthcare.
Catherine Fontenot is the Director of the Reception and Diagnostic Unit for VitalCore Health Strategies and was retained for her expertise in correctional practice. Fontenot has had a lengthy career in the field of corrections. She obtained her Bachelor of Science in criminal justice in 1992 and has worked in a variety of correctional settings since that time. Fontenot obtained her master’s degree in criminology from Grambling State University in 2006, and became an adjunct professor at various institutions, teaching courses covering Criminal Law, Criminalistics, Emergency Management, Criminology, Juvenile Justice, Corrections Process, Drugs and Substance Abuse, and the Death Penalty. In her current role, Fontenot was hired to streamline the inmate intake process and to implement an evidence-based health and safety classification.
Defendants took umbrage with all three witnesses’ reference to the September 7, 2021, death of Joseph A. Verville. Verville was booked into CCRJC on September 5, 2021, with noted signs of opioid withdrawal. LPN Aldrich first assessed him for withdrawal and gave detox medications at dinner the following evening, September 6. Surveillance footage showed Verville vomiting at least six times after taking the withdrawal medication, but he was not assessed again by medical staff until he was found dead at 8:50 a.m. on September 7.
After his death, LPN Aldrich was notified of potential discipline on September 27, 2021, and was given a verbal warning on November 23, 2021, after the death of Nelson. Defendants objected to the expert testimony inclusion of Verville’s death as impermissible character evidence. Plaintiff asserted that each of the expert witnesses can discuss the death of Verville because it established a notice of a pattern of conduct by CCRJC, Director Christopher Sharp, and LPN Aldrich.
Dr. Richard Cummins
Cummins is qualified to give an expert opinion on medical care
Cummins reviewed the entire case file, including medical reports, video footage, discovery related documents, and deposition transcripts. In doing so, he determined that CCRJC has a substandard training program and procedures in place which led to; failure to medically assess Nelson when she was booked into jail, failure to follow the internal alcohol withdrawal policy, and failure to provide a proper level of assessment, monitoring, and care. Cummins determined that had CCRJC rectified any of the failures in care, Nelson would not have died.
Defendants asserted that Cummins was not qualified to give expert testimony on the operations of medical procedures inside a corrections facility because his experience was with emergency departments in hospitals. Defendants also objected to Cummins statements on the basis that he is offering impermissible character evidence in his discussion of LPN Aldrich’s conformity with past negligence, which is inadmissible character evidence. Finally, Defendants argued that Cummins should not be able to opine on causation relating to the practice of jail staff and the death of Nelson.
Despite the fact that Nelson’s death took place in a corrections facility rather than a hospital, the Court found that Cummins had extensive knowledge of treating patients in various stages of medical stability, including alcohol withdrawal, given his career in the emergency department.
While Cummins is not necessarily familiar with medical practices in a correctional facility, he is familiar with the standard practice regarding medical care for individuals receiving treatment for alcohol withdrawal. As an expert witness, Cummins is permitted to testify on causation. Based on his own medical background and review of the record, the Court held that Cummins’s opinion on the ultimate issue, that Nelson’s death was caused by failure in treatment for alcohol withdrawal syndrome, is permissible.
Cummins’ testimony does not amount to impermissible character evidence
Defendants asserted that Cummins’ testimony amounts to impermissible character evidence, based on his comparison of the facts at hand with the death of Verville.
Defendants asserted that Cummins’ report drew a comparison between Nurse Aldrich’s treatment of Nelson and the treatment of Verville, improperly concluding that Nurse Aldrich had a propensity to behave in a medically negligent manner.
Plaintiff asserted that a comparison is not offered in violation of Federal Rule of Evidence 404(b), but instead is offered to show a pattern of administering lower than the established standard of care to inmates, or lack of knowledge or mistake that a particular mode of operation would result in the death of an inmate under the care of CCRJC.
While this evidence could be construed as character evidence suggesting that jail medical staff may have engaged in substandard care, the Court agrees that evidence of Verville’s death, and the circumstances surrounding it, are indicative of lack of mistake or absence of notice. Regardless, under Federal Rule of Evidence 703, a Court is vested with the discretion to allow otherwise inadmissible facts or data if the “probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.”
Though not completely analogous, the inclusion of the similar circumstances surrounding Verville’s death may be indicative of absence of mistake or lack of accident via noncompliance with the internal protocol, which would result in the death of an unmonitored detoxing inmate.
Because Cummins is an expert being offered to opine on the standard of medical care provided by CCRJC and the potential cause of Nelson’s death, the Court declined to strike his expert testimony as it did not amount to impermissible character evidence.
Dr.Lori Roscoe, PhD
Roscoe determined that Nelson received substandard nursing care. As part of her finding, she determined that LPN Aldrich’s administration of 100 milligrams of Librium without consulting a provider was illegal but opines no further on this statement except to state that it deviates from the scope of practice of a licensed practical nurse. She also included Verville’s death in determining that CCRJC has a substandard practice of care based on its failure to take corrective action after Verville’s death.
Defendants asserted that Roscoe’s testimony that LPN Aldrich “illegally” administered Librium without contacting a medical provider should be disregarded pursuant to Rule 401 and 403. Further, Defendants alleged that her discussion of Verville amounted to character evidence and was therefore inadmissible.
As an expert on nursing practice, Roscoe was permitted to opine on whether the standard of care was administered from a nursing perspective. Much like Cummins, the Court found that her discussion on the treatment received by Verville was relevant to Plaintiff’s argument that CCRJC’s medical care of inmates is substandard.
As to her statement that LPN Aldrich’s administration of Librium was illegal, Plaintiff offered additional support that any nurse would understand that they are not permitted to administer the narcotic without first contacting a provider.
While potentially dangerous, against the stated internal policy, and seemingly in a general lexicon of knowledge that it should not be done, Plaintiff offered no additional information that administering Librium without first contacting a doctor was “illegal.” As such, the Court disregarded the notion that LPN Aldrich’s conduct was “illegal” based on Roscoe’s testimony, because Plaintiff has provided no additional information to support this statement. However, the rest of her report was deemed admissible.
Catherine Fontenot
Fontenot ultimately determined that CCRJC was not proactive in rectifying standards of care that led to the death of Verville, and these gaps in care led to the death of Nelson.
Defendants’ objected to the inclusion of Fontenot’s testimony because it alleged her testimony was based on medical information, impermissible under Federal Rule of Evidence 702 based on her background. They also alleged that the language used, and the conclusions drawn ran afoul of the character evidence requirement under Federal Rule of Evidence 401 and 402.
Plaintiff contended that Fontenot’s testimony is not being offered for a medical purpose, but instead is offered to demonstrate best corrections practices against the opinion of Defendants’ expert witness.
The Court determined that no part of Fontenot’s opinion ran afoul of Rule 702. She did not make a medical diagnosis of withdrawal beyond the scope of what would have been asked of officials without a medical background working in the jail and recognized the difference between medical and non-medical staff.
Further, while the language used by Fontenot is passionate at times, it is not excludable under Federal Rule of Evidence 403.
Held
With the exception of Roscoe’s reference to the administration of Librium being “illegal,” the Court denied the Defendants’ motion to strike Dr. Richard Cummins, Dr. Lori Roscoe (PhD), and Catherine Fontenot. The Court also denied the Defendants’ motion for summary judgment.
Key Takeaways:
Despite the fact that Nelson’s death took place in a corrections facility rather than a hospital, Richard Cummins had extensive knowledge of treating patients in various stages of medical stability, including alcohol withdrawal, given his career in the emergency department. He is qualified to discuss how and when medication should be administered, and allowed to give his opinion about the initial medical intake and ongoing monitoring of inmates who are under the care of jail medical staff.
Plaintiff offered no additional information that administering Librium without first contacting a doctor is “illegal,” despite it being potentially dangerous and against the stated internal policy. As a result, the Court disregarded the notion that LPN Aldrich’s conduct was “illegal” based on Lori Roscoe’s testimony.
As demonstrated both by Defendants’ own expert witness and additional filings, many times jail officials without a formal medical background must nevertheless be able to render rudimentary care, including identifying withdrawal symptoms, and continued monitoring of inmates. The facts of this case demonstrate that in a jail system, staff must work together to keep everyone safe, inmates and each other alike, and as such non-medical staff is asked to do initial medical intake of inmates after hours and provide ongoing monitoring to recognize withdrawal and alert medical staff. In this spirit, no part of Catherine Fontenot’s opinion ran afoul of Rule 702.
