Expert Witness Profiler

Tag: Relevance

Court admits expert testimony regarding restrictive covenants in public nuisance case

Carolyn Stone as the owner of a home within the Lakeview Homes Addition subdivision (Subdivision) in Houston, Texas alleged that the Defendants Harley Marine Services, Harley Marine Gulf, and Harley Channelview Properties (collectively Harley) were operating a commercial barge business that violated the Subdivision’s deed restrictions prohibiting commercial activity. Stone claimed that Harley’s conduct diminished her property value and constituted a nuisance. 

Peter Boecher had been chosen as an expert witness by Harley due to his expertise in matters related to land use and restrictive covenants to testify in this case regarding the current situation of these covenants in the subdivision. Stone designated rebuttal expert Mike Brubaker to testify on the same topics. Harley moved to exclude Brubaker’s testimony, arguing he was unqualified because he is not a land planner, citing failure to squarely rebut Boecher’s opinions as well as failure to identify the methodology which supported his opinion.

Real Estate Expert Witness

Mike Brubaker is a highly experienced real estate appraiser and broker in Texas. He has held a Certified General Appraiser license in the state and is also a licensed real estate broker. Brubaker earned the prestigious SRA designation from the Appraisal Institute in 1988, demonstrating his expertise in residential appraising. He holds a Bachelor’s degree in Architecture from the University of Houston earned in 1981.

Over his long career spanning more than 35 years, Brubaker has undertaken extensive education in the appraisal field including numerous courses and seminars offered by organizations like the Appraisal Institute. Brubaker is recognized as a leader in the appraisal community through his prior roles as an instructor, Director, and committee member for appraisal and real estate trade groups.

Brubaker has performed valuations for purposes including eminent domain, litigation support, relocation, and lending. He has appraised both residential and commercial properties. Through his depth of experience, Brubaker has testified and been qualified as an expert witness in Texas Courts on multiple occasions. He counts major law firms and lenders among his past clients during his 30+ year career as an appraiser. Overall, Brubaker’s extensive qualifications and active involvement make him a recognized authority in the real estate appraisal field.

Peter Boecher is a highly experienced land planning and real estate consultant with over 35 years of expertise in areas including site selection, development feasibility, access planning, zoning, subdivision design, land ordinances, and eminent domain analysis. He holds the prestigious Counselor of Real Estate (CRE) designation, awarded to real estate professionals demonstrating the highest levels of competence and ethical standards. Boecher has been a certified planner with the American Institute of Certified Planners (AICP) since 1989, requiring continuing education to maintain this status. He is also a Registered Landscape Architect in Texas since 1981, which similarly necessitates ongoing continuing education.

In 2019, Boecher joined EHRA engineering firm as a Senior Planner and Real Estate Counselor. He previously served in Planning Director roles at multiple firms. A frequent presenter, he has delivered seminars on land use, eminent domain, and planning topics for legal continuing education. Boecher has extensive experience providing expert witness testimony via deposition, trial, mediation, and other means regarding land use, eminent domain, planning, and real estate matters in county, state, and federal courts.

Discussions by the Court

Harley argued that Brubaker should be excluded as an expert witness because he was not qualified since he is not a land planner. Harley asserted that Brubaker failed to properly rebut the opinions of their expert, Peter Boecher, who is a land planner. Harley also contended that Brubaker did not identify the methodology he used to reach his opinions.  Harley accused Brubaker of applying arbitrary classifications to the uses within the Subdivision, suggesting a lack of objectivity in his analysis. Harley asserted that the testimony of Brubaker lacked relevance and he faltered in accounting for “obvious alternative explanations.”

Judge Bray examined Brubaker’s background and experience in detail. He noted that Brubaker is a licensed real estate appraiser and broker with over 40 years of experience preparing neighborhood analyses. As part of these analyses, Brubaker inspected neighborhoods, reviewed land use, and examined deed restrictions. Judge Bray found these were the exact same types of tasks performed by Boecher. Although Brubaker is not a land planner, the Court determined he had the requisite expertise based on his professional experience.

Judge Bray also reviewed Brubaker’s report and found he directly rebutted the opinions offered by Boecher. Since the purpose of designating Brubaker was to provide rebuttal testimony, the Court found him qualified for this role.

Regarding methodology, Brubaker stated in his declaration that he performed his analysis consistent with the industry standard Fannie Mae Selling Guide. He explained this involved identifying neighborhood boundaries, characteristics, and land use through visual inspection and document review. The Court found Brubaker employed the same methodology as Boecher by touring the neighborhood, observing land use, and examining the deed restrictions. 

Harley failed to provide sufficient evidence or argument to support their claim that Brubaker’s testimony was unreliable or that he failed to gather sufficient facts or data. Additionally, it appeared that Harley did not adequately identify what they believed were “obvious alternative explanations” that Brubaker should have considered when providing his testimony.

Judge Bray determined Harley’s objections about Brubaker’s methodology went to the weight of his opinions rather than admissibility. The judge denied Harley’s motion to exclude Brubaker, finding him to be qualified and allowing his expert rebuttal testimony. Harley could raise specific objections at trial.

Moreover, Harley moved to exclude or limit Carolyn Stone’s testimony under Federal Rule of Evidence 701.

In her disclosures, Stone stated she would provide testimony about the value of her property under the Texas Property Owner Rule. Harley filed a motion asking the Court to limit Stone’s testimony to the parameters of this Rule. 

Judge Bray outlined the key requirements of the Texas Property Owner Rule. He stated the testimony must refer to market value of the property, have a basis beyond just the owner’s opinion, and can be substantiated through evidence of sales, appraisals, tax valuations, and other factors.

Since Stone had already agreed to testify as per the parameters of the Texas Property Owner Rule, the Court denied Harley’s motion as moot.

Held

In conclusion, Judge Bray denied Harley’s motions to exclude the expert testimony of Brubaker and limit the testimony of Stone. The Court found Brubaker was qualified as a rebuttal expert based on his experience. The judge also declined to limit Stone’s testimony since she had already agreed to follow the Texas Property Owner Rule. A final decision has not been reached in this case by the Court considering the remaining issues involved in this case still await resolution.

Key takeaways

This case demonstrates the importance of properly qualifying expert witnesses and establishing a reliable methodology. Harley challenged the qualifications of Stone’s rebuttal expert Brubaker because he was not a land planner like their expert Boecher. However, the Court found Brubaker’s 40+ years of experience inspecting neighborhoods and reviewing deeds as a real estate appraiser qualified him to opine on land use and deed restrictions. The Court also examined his methodology, which followed industry standards for neighborhood analysis, relied on document review, and involved inspecting the subdivision. His approach mirrored the methodology of Harley’s expert. While specific objections could be raised at trial, Brubaker was permitted to testify as a rebuttal expert. This shows experts can be qualified based on practical experience even if they do not have the same formal credentials as the opposing expert. However, they must employ a sound methodology reliably applied to the facts. Vague objections to qualifications or methodology will likely fail if the expert has substantive experience and explains their analytical approach. Specific objections may still be raised later regarding the weight given to the expert’s opinions.

September 11, 2023
FTX Founder’s Experts Face Exclusion in Cryptocurrency Fraud Case
FTX Trading Ltd. was a cryptocurrency exchange founded in 2019 by Sam Bankman-Fried. It quickly grew to become one of the largest crypto exchanges. Bankman-Fried also founded Alameda Research, a cryptocurrency trading firm. Federal prosecutors alleged that starting in 2019, Bankman-Fried orchestrated a scheme to defraud FTX customers by misappropriating their deposits to support Alameda’s trading activity.

Specifically, he was accused of diverting billions in customer funds to Alameda without disclosing this practice. Alameda allegedly used the funds to make speculative crypto trades. Prosecutors said Bankman-Fried made false statements about FTX’s financial condition and operations to attract more customer deposits as well as investments into FTX and loans to Alameda.

In November 2022, concerns about Alameda’s financial condition led to mass withdrawals from FTX. This caused a liquidity crunch at FTX, which did not have sufficient funds to meet withdrawal demands. FTX filed for bankruptcy on November 11, 2022. An estimated 1 million customers and investors suffered billions in losses.

In December 2022, federal prosecutors filed criminal charges against Bankman-Fried, including wire fraud, commodities and securities fraud, and money laundering conspiracy. Bankman-Fried was arrested in the Bahamas and extradited to face charges in the United States. He pleaded not guilty. Jury selection for his trial is scheduled to begin on October 2, 2023, in New York. Bankman-Fried might face up to 115 years in prison if convicted.

To summarize, Bankman-Fried is faced with 12 criminal charges, which will be spread across two trials scheduled to begin on October 2, 2023, and March 11, 2024. He has pleaded not guilty to all counts.

Lawrence Akka

The Government argued that the testimony of all seven experts should be excluded for various reasons. The Government contended that the testimony of Lawrence Akka, an English barrister, should be excluded because he intended to interpret FTX’s terms of service and opine on the legal obligations created by the contract which, according to the Government, usurped the role of the judge in instructing the jury on the law and the jury’s role in applying the law to the facts. The Government also argued that his testimony was also unreliable because it did not consider the full context for interpreting the agreement, and he had not reliably established that there was a uniform definition of “trust” that he could apply. The Government added that his testimony should also be excluded under Rule 403 because it was likely to mislead and confuse the jury about the relevant legal standards.

Joseph M. Pimbley

The Government also pushed for excluding the testimony of Joseph M. Pimbley concerning problems with FTX’s software infrastructure, specifically its database and computer code because considering the notice did not adequately disclose his opinions, his testimony would not be relevant to the issues at trial, and it would be an improper attempt to imply through an expert that Bankman-Fried lacked knowledge of alleged infrastructure deficiencies at FTX.

Bradley A. Smith

The Government also demanded the exclusion of the proposed testimony of Bradley A. Smith regarding campaign finance laws and practices because not only was it improper for an expert to testify about the legal framework that applied to political contributions at the federal level, it was also irrelevant since the campaign finance charges had been dropped, and his opinions about Defendant’s “good faith” compliance with campaign finance laws constituted inadmissible state of mind testimony under Rule 704(b).

Pietro (Peter) Umberto Vinella

The Government asserted that the proposed expert testimony of Pietro (Peter) Umberto Vinella warranted exclusion because he lacked qualifications to opine about cryptocurrency markets and FTX considering much of his proposed testimony was irrelevant or speculative, and his opinions about financial services industry customs and the reasonableness of FTX’s actions were misleading and unfairly prejudicial.

Andrew Di Wu

The Government challenged the background testimony of Andrew Di Wu on cryptocurrency’s history and markets which also drew comparisons between FTX and other cryptocurrency exchanges deeming it irrelevant, speculative, and dismissive of the Court’s legal instructions.

Moreover, the Government also argued that the testimony of Thomas E. Bishop and Brian Y. Kim should be excluded because the defense failed to provide sufficient disclosure about their anticipated expert opinions and the bases for those opinions, as required by Rule 16. The notices for these two experts only identify general topics but do not state any actual opinions or analysis.

In summary, the Government argued that the seven proposed defense experts had either failed to provide adequate notice of their opinions, intended to provide irrelevant or improper legal opinions and testimony on industry practice, lacked qualifications, or intended to provide speculative and unreliable testimony that was substantially more unfairly prejudicial than probative. For these reasons, Daubert hearings were requested to assess relevance, qualifications, and reliability.

As the start date of the trial of FTX co-founder Sam “SBF” Bankman-Fried approached, new court filings indicated that SBF could pay his expert witnesses more than $1,000 an hour should they testify on his behalf.

Some of the witnesses, such as former Federal Election Commission Chairperson Bradley Smith, charged SBF’s legal team $1,200 an hour to testify about issues such as the United States’ campaign finance laws and straw donors, according to a court filing on August 28. Bradley Smith clarified that he had no financial stake in the case’s outcome. He was receiving compensation solely for his time and services, billed at a rate of $1,200 per hour. He emphasized that his compensation was not based on the opinions he provided in the case or on the final outcome of the legal proceedings.

Additional expert witnesses, such as Akka and Pimbley, might charge £800 (equivalent to $1,000) and $720 per hour, respectively, if they testify, as indicated in the court filings. The hourly rates for other potential expert witnesses for SBF’s case vary, ranging from $400 to $650.

On the other hand, Peter Easton, an accounting professor at the University of Notre Dame, who is a proposed witness for the prosecution, would charge $1,175 per hour as per the court data.

SBF seeks to request a trial postponement. If the request is submitted by September 1 and is approved, SBF’s trial will be rescheduled to March 11, 2024.

Key Takeaways:
- Experts cannot testify to legal conclusions, interpret contracts, or opine on whether the Defendants had the requisite mental state to commit the crimes. This improperly usurps the role of the judge and jury.
- Experts noticed by the defense failed to provide adequate disclosure of their opinions and analysis as required by the rules of evidence. Vague topics are insufficient.
- Proposed testimony on background information, industry practices, actions of third parties, and regulatory uncertainty from several experts is irrelevant to the issues the jury must decide. It is also likely to mislead and confuse the jury.
- Testimony opining that the Defendants acted reasonably or in good faith compliance with laws and regulations is impermissible state of mind evidence.
- Some experts lack qualifications to testify about cryptocurrency markets and exchanges. Their opinions are unreliable and speculative.
- Expert testimony that is cumulative of facts that can be established through percipient witnesses is unnecessary and improper. In summary, the government argues the proposed experts either lack proper qualifications, offer legal opinions and testimony irrelevant to the facts at issue, or provide unreliable and prejudicial opinions. The testimony should therefore be excluded or limited through Daubert hearings.
September 8, 2023
Colorado Court weighs reliable basis of Pathology Expert’s testimony over semantics in medical negligence suit
Plaintiff, Deborah Duran pursued claims of medical negligence and malpractice against the Defendants, Donald Corenman, M.D.; Sean Bryant, M.D.; Jack Anavian, M.D.; The Steadman Clinic, Professional LLC; And Trystain Johnson, M.D. arising from the untimely death of her husband, Gilbert Duran due to a rare melanic schwannoma. Plaintiff is not only Mr. Duran’s widow but also acted as the personal representative of her late husband’s estate. The core contention in this case was that the Defendants, purported medical professionals, had delayed in diagnosing Mr. Duran’s schwannoma upon its initial discovery in 2015. This alleged delay led to the tumor metastasizing, ultimately resulting in Mr. Duran’s demise in 2019. Plaintiff sought to preclude certain opinions of defense expert Dr. Gross regarding the tumor’s likely characteristics and poor prognosis in 2015, but the Court admitted it regardless because it weighed reliable basis over semantics dispute.

Anatomic Pathology Expert

John McMahon Gross, M.D., M.S. had been designated by the Defendants to provide expert testimony regarding the pathology issues in this case and offer an opinion on the likely characteristics of the tumor back in 2015. Following pathology residency, Dr. Gross pursued specialized fellowship training in bone and soft tissue at the University of Washington in Seattle, WA followed by additional fellowship training in surgical pathology at the Mayo Clinic in Rochester, MN. In 2020, Dr. Gross became an assistant professor in the Department of Pathology at Johns Hopkins where he specializes in bone and soft tissue and surgical pathology. Dr. Gross has an academic interest in bone and soft tissue tumors and has authored over a half dozen articles and chapters and given national and international presentations on sarcoma pathology. Dr. Gross’s stance was that the tumor had been malignant in 2015, carrying a grim prognosis even with early intervention.

The Plaintiff sought to exclude a specific facet of Dr. Gross’ expert opinion from consideration.

Discussions by the Court

Citing his March 30, 2022 expert report, the Plaintiff presented several arguments to strike Dr. Gross’ opinion that increased mitotic activity predicted malignancy. First, the Plaintiff contended that Dr. Gross had failed to provide supporting medical literature for this opinion which rendered it unsupported and undermined its credibility. Second, the Plaintiff argued that this opinion was irrelevant to the central issues of the case since it lacked empirical backing to contribute meaningfully to the understanding of Gilbert Duran’s circumstances. Third, even if considered relevant, the Plaintiff invoked Rule 403 of the Federal Rules of Evidence which suggested that any potential probative value of the unsupported opinion was outweighed by its potential for confusion or prejudice.

In response, the Defendants asserted that the Plaintiff’s contentions were mischaracterizations of Dr. Gross’ opinion and its underpinnings. They argued that the Plaintiff had introduced the term “predict” during the deposition, whereas Dr. Gross had framed his opinion as an association or correlation between mitotic activity and poor prognosis. The Defendants further maintained that Dr. Gross’ opinion was built upon sufficient facts and data and highlighted the Plaintiff’s own reference to the Torres-Mora study that supported his stance and was thoroughly discussed during Dr. Gross’ deposition. The Defendants contended that Dr. Gross’ opinion was reliable, relevant, and logically derived from existing scientific knowledge.

In conclusion, the Court faced the critical task of evaluating the admissibility of Dr. Gross’ opinion, specifically his opinion which suggested an association or correlation between high mitotic rates and poor prognosis. The outcome of this decision held significant weight, as Dr. Gross’ expert testimony had the potential to shape the Court’s understanding of the medical aspects of the claim. Balancing the arguments presented by both parties, the Court’s determination would impact the course of the case and potentially influence the attribution of liability and the assessment of damages.

Plaintiff’s central argument revolved around their assertion that Dr. Gross intended to provide testimony which suggested that increased mitotic activity in 2017/2018 predicted aggressive behavior of tumors and was predictive of the tumor in 2015. The Plaintiff equated this opinion with the notion that mitotic rate predicted malignancy. Additionally, the Plaintiff emphasized the viewpoint of Dr. Folpe, Dr. Gross’ mentor and a respected expert in the field, who disagreed with Dr. Gross’ opinion and did not subscribe to the belief that mitotic rate predicted metastasis. The Plaintiff fervently urged the Court to strike Dr. Gross’ opinion about increased mitotic activity being predictive of aggressive behavior.

The Plaintiff conflated the term “predicts” with “causation” in their argument which further intensified the matter. They illustrated this by drawing an analogy which asserted that just as a correlation between ice cream sales and shark attacks did not imply that consuming ice cream caused shark attacks, a similar principle applied to the correlation between increased mitotic activity and metastasis. The Plaintiff contended that association was never the same as prediction and exemplified this with the analogy of a person associating with a criminal not necessarily predicting that the individual will commit a crime themselves.

However, the Court concurred with the Defendants’ stance that the Plaintiff aimed to exclude an opinion that Dr. Gross did not actually present. After carefully examination of Dr. Gross’ written opinion and deposition testimony, it was apparent that the core of his written opinion centered on Mr. Duran’s tumor being an exceptionally rare type of sarcoma which possessed aggressive traits and a malignant histology. Dr. Gross maintained that the aggressive features noted in the tumor’s 2018 diagnosis were likely present in 2015 which indicated a bleak prognosis even if diagnosed earlier. He argued that the aggressive nature of the tumor would have made a significant impact even if treated in 2015. Dr. Gross concluded by stating that the tumor’s aggressive attributes and the presence of these traits in 2018 imply their existence in 2015, and that early diagnosis and treatment may not have prevented recurrence or metastasis.

Contrary to the Plaintiff’s assertions, nowhere in Dr. Gross’ report did he offer the specific opinion that a high mitotic rate predicted malignancy. Even during his deposition testimony, when asked about whether he believed that mitotic activity was predictive of malignant behavior, Dr. Gross responded by saying that it had been associated with a worse prognosis. Despite further pressing from the Plaintiff’s counsel, Dr. Gross consistently maintained that mitotic activity had been merely suggestive or associated with an unfavorable outcome.

In conclusion, the Plaintiff’s argument hinged on the interpretation that Dr. Gross asserted a predictive link between increased mitotic activity and aggressive behavior of tumors. However, the Defendants and the Court contended that Dr. Gross’ opinion did not explicitly express such a predictive relationship, but was suggestive of a relationship of association between a poor prognosis and high mitotic activity present in the subject tumor. This nuanced distinction became pivotal in determining the admissibility and weight of Dr. Gross’ expert testimony within the context of the case.

The crux of the dispute in this case appeared to center around a semantic distinction. The Plaintiff seemingly equated the phrase “predictive of” with terms like “caused” or “causation.” However, the Court did not find that Dr. Gross’ opinion, as articulated in both his written report and deposition testimony, could be interpreted as encompassing a notion of prediction. Furthermore, even if it were assumed to involve prediction, in the realm of medicine, “predictive” did not necessarily denote causation. The term “predictive value” in a medical context, as defined by Stedman’s Medical Dictionary, referred to the likelihood that a given test result correlates with the presence or absence of a disease. This definition aligned with Dr. Gross’ medical opinion and underscored the Court’s understanding that his opinion was grounded in a correlation, not a statement of causality. In other words, the court weighed the reliable basis over semantics.

The Plaintiff’s challenge to Dr. Gross’ qualifications or experience did not seem to hold weight in this argument. Dr. Gross evidently derived his opinions not solely from referenced medical literature and scientific sources, but also from his substantial education, training, and experience as a pathologist. Moreover, the Court deemed the Torres-Mora study and the World Health Organization Classification of Tumors – Soft Tissue and Bone Edition (5th Ed.), in conjunction with other factors referenced in Dr. Gross’ report, as sufficient support for his opinion. This collective foundation rendered his opinion adequately reliable.

Held

Dr. Gross’ opinion regarding any observed association, suggestion, or correlation between heightened mitotic activity and a poor prognosis in the specific tumor in question was indeed relevant to the Plaintiff’s claim of delayed diagnosis and the Defendants’ defenses. Considering all factors, the Court found no substantial basis under Fed. R. Evid. 403 to exclude Dr. Gross’ opinion from the proceedings. This ruling acknowledged the relevance, reliability, and context of Dr. Gross’ testimony within the broader framework of the case.

The Defendants have effectively fulfilled their obligation to demonstrate that Dr. Gross’ opinion met the criteria stipulated in Fed. R. Civ. P. 702. It is worth noting that the Plaintiff retained the prerogative to subject Dr. Gross to thorough and respectful cross-examination regarding the matters addressed in her motion and during Dr. Gross’ deposition. Consequently, the Court denied the motion and upheld the admissibility of Dr. Gross’ opinion as evidence in the case. Since the remaining issues are yet to be resolved, the Court has not reached a final outcome for this case as of now.

Key Takeaways
1. The Court rejected the Plaintiff’s argument that the expert’s opinion lacks sufficient basis and should be excluded as irrelevant or prejudicial.
1. The Court found the defense expert does not actually opine that mitotic activity predicts tumor metastasis or malignancy, only that there is an association or correlation between high mitotic rates and poor prognosis.
1. The Court viewed the dispute over the language used by the expert as merely semantic in nature. The term “predictive” does not necessarily imply causation in a medical context.
1. The Court held the expert’s opinions are sufficiently reliable based on his qualifications/experience as a pathologist and the medical literature cited in his report.
1. The Court found the expert’s views relevant to the issues in the medical malpractice case regarding delayed diagnosis and defenses.
1. The Court ruled the defense satisfied its burden under Rule 702 to show the testimony is admissible expert opinion.
1. The Court emphasized the Plaintiff can vigorously cross-examine the expert about his opinions at trial.
1. The Court denied the motion to strike/preclude the expert’s testimony, allowing him to offer opinions at trial on the characteristics of the tumor and likely prognosis.
In summary, the key takeaways are that the Court allowed the defense expert to testify despite Plaintiff’s challenges, finding his opinions supported, relevant, and reliable based on the appropriate expert methodology and standards. The Court saw flaws only in the semantics used to describe the opinion, not the underlying basis.
August 31, 2023