This case arises from an insurance policy and its alleged breach. Riva’s luxury high-rise condominium development sustained damage from Hurricane Ian.
The issue Steadfast raised with the Court now is how Riva’s expert arrived at his estimate. Riva hired Dr. Anurag Jain, an engineer, to inspect the property. Dr. Jain and his team investigated the property over the course of multiple days, focusing on the roofs, windows, door systems, interiors, and exteriors of the building. But they didn’t knock on every door. Instead, Jain focused on the interiors and fenestrations (windows and glass doors) in 43 of 161 condominium units, capturing 27% of the total. The units he inspected were selected in accordance with the “qualitative” sampling methods outlined in the American Society of Civil Engineers’ (“ASCE”) guidelines. In his report, Jain explains that this choice was meant “to cover a sufficiently large sample of units and windows and doors across the buildings and various exposures with multiple units on each floor and each stack of the buildings.”
At bottom, rather than inspect every unit—a time-consuming and expensive process—Jain determined the level of damage in the building by analyzing the losses observed in the sample. Since he suggested replacing or repairing a specific percentage of windows and sliding glass doors in the sample, he applied the same percentage to all windows and glass doors across the building. Put simply, he extrapolated.
Motion to Exclude
Steadfast looked at Jain’s report and saw a house of cards. In its view, his opinions are unreliable for two main reasons. First, the damage could have been caused by Hurricane Irma in 2017, which Jain did not sufficiently rule out. Second, Steadfast claimed that the math is broken—arguing that extrapolation is a clumsy shortcut that will force it to pay for repairing perfectly good windows. To keep the jury from hearing a word of it, Steadfast sought to exclude Jain’s testimony.
Engineering Expert Witness
Dr. Anurag Jain has investigated more than 3,000 hurricane-damaged buildings, including losses from Hurricane Ian, and has testified in depositions and trials involving wind-related structural damage.
He holds a Ph.D. in structural engineering (wind engineering emphasis) and a master’s degree in structural engineering from Johns Hopkins University, as well as a Bachelor of Technology in civil engineering from Banaras Hindu University.
Steadfast’s argument that Jain did not rule out alternative causes of the property damage is this: because he opined that the “duration” of Hurricane Ian’s high winds caused the damage, he should have also calculated whether the duration of Hurricane Irma, from 2017, could have caused the same damage.
The problem with this argument is straightforward—Jain did consider Irma. He testified that Riva’s property was designed to withstand Hurricane Ian, but the duration of the strong winds caused the building to succumb to its pressure.
But Jain didn’t just throw up his hands because the data was sparse. He checked the available pre-Ian documents—including a 2021 Condition Survey Report, which was entirely silent on any window or door damage. To an engineer, that silence made perfect sense: Irma simply lacked the muscle to inflict similar destruction.
Analysis
Steadfast protests that Jain did not see any reported damage to the windows and doors because that is not what the 2021 Condition Survey was looking for. According to Steadfast, the survey only inspected the exterior of the property, and since the interior was never examined, the report could not have identified any fenestration damage. Apparently, this was corroborated by the survey company, who testified that the 2021 assessment did not include an inspection of the buildings’ interiors. While that may certainly weaken Jain’s opinions, it did not change the reliability analysis here.
The narrow question at this stage is simply whether Jain adequately grappled with obvious alternative explanations. He did. In his professional judgment, if Hurricane Irma had actually caused building-wide damage, the inspecting engineers would have written it down. Steadfast insists this is a total misreading of the 2021 Condition Survey. But that kind of disagreement goes to the credibility of his conclusion, not the reliability of his threshold method. If Steadfast wants to convince a jury that the report’s silence means something else entirely, it is welcome to try. That is exactly what cross-examination is for.
B. Extrapolation
Next up, Steadfast challenged Jain’s reliance on statistics instead of personally inspecting each unit to determine the percentage of damaged fenestrations. Basically, Steadfast argued that “extrapolating findings from only 27% of units to the entire 161-unit complex is not scientifically valid under accepted engineering Daubert principles.”
Look at how Jain actually did the math. He didn’t invent a number out of whole cloth; he recorded the exact percentage of damage he saw in his sample and let those real-world findings dictate the building-wide projections. For example, he found that 24% of the sliding glass doors observed in the North Building had panel framing joint rotation, a bent or impacted frame, or water penetration through the joints.
Because those specific flaws signal broken internal sealants and compromised framing, he concluded that 24% of the sliding glass doors in the North Building need to be replaced. The math is not a black box—it is the product of simple statistics. And Jain’s sampling focus is identical to his extrapolation subject: sliding glass doors, single-hung windows, and fixed windows divided by building and categorized by the type of damage each sustained. A reasonable jury does not have to accept Jain’s conclusions as true, but his math is not unreliable.
Jain staggered the units he inspected across 19 stories, based on each unit’s location within each building. He did this “to cover a sufficiently large sample of units and windows and doors across the buildings and various exposures with multiple units on each floor and each stack of the buildings.” The ASCE guidelines support precisely this type of extrapolation.
Held
In conclusion, the Court denied Steadfast Insurance Company’s motion in limine to exclude the testimony of Dr. Anurag Jain.
Key Takeaway
The Court’s job under Daubert is to screen an expert’s methodology, not to decide which side has the more persuasive argument or to declare who is ultimately correct.
Case Details:
Case Caption:
Riva Del Lago Condominium Association, Inc. V. Steadfast Insurance Company
Plaintiffs Melissa Pitkin and Dan Grout own a home together in Healdsburg, California. They hold a homeowner’s insurance policy from State Farm, policy number 57-C4-6752-1 (the “Policy”), which covered certain losses to their home and all of its contents. The Policy included the “main policy form” (FP-7955, CA) as well as a “homeowners endorsement form” (FE-3422). Subject to the Policy’s terms, conditions, and exclusions, the Policy included “Coverage B – Personal Property” limits of $506,574, and other various special limits. Regarding settlement of Coverage B claims, the Policy provides for settlement of damaged personal property in several ways, including actual cash value (“ACV”), market value, and replacement cost (“RC”).
On August 20, 2020, the Walbridge Fire burned down the Plaintiffs’ home. Having lost their home and personal possessions, the Plaintiffs tendered a claim to State Farm for their losses under the Policy. State Farm accepted the claim and adjusted their losses pursuant to the Policy’s terms, which stated that the plaintiffs are entitled to recover ACV for their personal property losses. On December 16, 2022, and January 24, 2023, the Plaintiffs received partial payments from State Farm for their personal property contents losses. State Farm also sent the Plaintiffs “loss payment worksheets” that showed their ACV benefits for their personal property.
For all items of property where sales tax was applicable, State Farm depreciated sales tax in calculating ACV.
The Plaintiffs filed this class action, alleging that State Farm violates California law by depreciating sales tax as a component of RC when calculating ACV.
State Farm sought to exclude the opinions of Plaintiffs’ experts, Greg J. Regan, David Melzer and Eugene Peterson while Plaintiffs filed a motion to exclude the testimony of State Farm’s primary expert witness, Dr. Duane L. Steffey.
Accounting Expert Witness
Greg Joseph Regan is a partner in the Forensic Consulting Services Group of Hemming Morse, LLC, and is a licensed CPA in California.
David Melzer has worked in the insurance industry since 2011 in various specialist capacities. He worked for Travelers Insurance from 2013 to 2020, where he held positions including adjuster, technical specialist, and claims manager.
After that, he started his own public adjusting firm, called Property Claims Consultant, Inc., where he handles first and third-party property claims, including personal property claims.
He has held the position of President of Property Claims Consultant, Inc. since he started the firm in November 2020. He has “significant experience in processing and analyzing personal property insurance claims” and “experience working with industry-standard software used to process and track personal property claims, including Xactimate or XactContents.”
Eugene Peterson built his first home in 1974 – and has been a home builder, remodeler, and restoration contractor for over 35 years. He is a Past President of the Utah Home Builders Association and the Greater Salt Lake Home Builders Association. He is the CEO of Advise And Consult, Inc., an expert witness & consultant for restoration, personal property & construction related matters in the United States and Canada. Peterson has facilitated peer group meetings for Business Networks, Inc., and was an advisor, consultant & certified trainer for Xactware, Inc. (construction estimating software) for several years. He also actively performs insurance appraisals as an umpire or appraiser.
Dr. Duane Leon Steffey holds a Bachelor of Science in history and mathematics, a masters in statistics, and a Ph.D. in statistics from Carnegie Mellon University. He has served as a consulting statistician for over thirty years, with a “breadth of applications in engineering, health, environmental science, and civil justice.”
He is an elected Fellow of the American Statistical Association since 2009, as well as an Elected Member of the International Statistical Institute since 2015.
Regan indicated that he was “asked to provide a methodology to calculate available classwide damages.” State Farm produced an Excel file known as the “Combined Pitkin Dataset.”
If a claim “involves more than a few items or is not settled during a first contact” the claims personnel may “utilize the XactContents® tool to assist in valuing lost property for claim settlement purposes.” Third party entity Verisk owns the XactContents® tool.
To create the Combined Pitkin Dataset for this litigation, third-party Verisk first created a report containing data regarding personal property claims during the class period with an XactContents® actual cash value estimate.
Regan clarified that while his “methodology to calculate damages” was laid out in his initial report, the supplemental report was meant to apply the methodology to the Combined Pitkin Dataset. Regan then proposed two alternative “scenarios” for calculating damages. Under the first scenario, damages would equal the amount of Sales Tax Depreciation applied to a claim, capped by any RC benefits available under the policy. Under the second scenario, Regan allocated Sales Tax Depreciation proportionally by comparing the claimant’s remaining RC benefits to the total recoverable depreciation and then applying that percentage to the amount of Sales Tax Depreciation.
The crux of State Farm’s motion to exclude concerns the reliability of Regan’s opinions. Specifically, State Farm claimed Regan’s opinion hinges on (1) unreliable data, (2) unreliable identification of class members, and (3) incompatible and unreliable damages “scenarios.”
a. Reliability
State Farm first argued that Regan’s reliance on the Combined Pitkin Dataset lacked the “foundation” necessary to survive a Daubert motion.
State Farm’s challenge is best understood as an attack on the assumptions underlying Regan’s analysis—mainly, that XactContents® is an accurate tool for measuring damages in this case.
Regan indicated that he relied on State Farm’s own records, testimony from State Farm employees, “validation exercises,” “extensive testing,” and “adopting the more conservative input for purposes of measuring damages” when a disagreement in the data arose.
The Court concluded that Regan has established by a preponderance of the evidence that his opinion is reliable and admissible, subject to cross-examination and presentation of contrary expert testimony.
According to State Farm, Regan’s “three new groupings of purported class members (not reflected in the class definition or his prior opinions) produce unreliable and patently incorrect results.”
However, Regan “organized his damage calculations in three groups to reflect the different circumstances of those groups.” While each group may present different factual circumstances, Regan “applied the same methodology to calculate damages across all groups.”
State Farm finally challenged Regan’s two damages scenarios as unreliable and invalid. Regan sufficiently explained in his Report and Supplemental Report the reason for having two damages “scenarios,” how he reached those scenarios, and the methodological basis for each.
b. Untimely Opinions
State Farm argued in the alternative that Regan’s opinions in the Supplemental Report should be excluded as untimely and improper new opinions.
Regan’s Supplemental Report was disclosed two months after the Rule 26 disclosure deadline and less than one month before the rebuttal deadline. Because its own expert, Steffey, opined that the Supplemental Report “substantially revised Regan’s opinions,” State Farm urged that the Court find his “new” opinions as untimely under Rule 702. Plaintiffs responded by pointing out that the parties jointly agreed to extend fact discovery and adjust the pretrial schedule to allow for State Farm to produce the Combined Pitkin Dataset. As a result, Regan produced his Supplemental Report on September 25, 2025—a date agreed upon by the parties in their joint request to adjust the pretrial schedule.
2. David Melzer
a. Methodology
Melzer indicated that he was “hired to provide opinions on . . . the frequency of personal property claims with State Farm, the ascertainability of these claims through available databases, and whether the claims of Plaintiffs Pitkin and Grout fall within the proposed class.”
Melzer’s proposed methodology to estimate the total number of potential class members is as follows. To estimate the total volume of personal property replacement claims for State Farm in California from 2015 to the present, he analyzed the number of claims in a submarket: San Diego. He chose San Diego as a representative example because claims throughout California would “typically be consistent with personal property claims made in San Diego.”
Using that data, Melzer estimated the total number of insurance claims in San Diego across all insurers by dividing the number of Travelers’ claims by its 3.68% market share (a percentage market share that is available on the California Property and Casualty Market Share Report published by the California Department of Insurance).
He then consulted the California Property and Casualty Market Share Report (the “Market Report”) issued by the California Department of Insurance from 2015-2023 and determined that State Farm consistently has “over 8.5% of the Property and Casualty Insurance Market in California.”
Melzer goes on to explain that based on his familiarity with Xactimate and XactContents®, he believes that “given the detailed data that insurance companies maintain and given the flexibility and power of Xactimate/XactContents, it is [his] opinion that State Farm can create a report, or export the necessary data, that will allow for the identification of all personal property insurance claims where State Farm depreciated the taxes. From that report, Plaintiffs will be able to identify the members of the Class.”
b. Class Member Identification
State Farm maintained that the Court must exclude any class identification opinion from Melzer, as he “has not purported to identify class members” and instead “conjectures that someone else can.”
It similarly urged that Melzer’s “conjecture that someone else can reliably and feasibly identify specific class members based solely on the Combined Pitkin Dataset also lacks sufficient foundation, conflicts with Melzer’s other admissions, and is therefore inadmissible.”
Plaintiffs contended that Melzer did, in fact, “analyze the capabilities of the Combined Pitkin Dataset to ascertain the members of the class.”They highlighted that Melzer provided a “detailed analysis of the capabilities of XactWare products, including XactContents.”
“While State Farm may disagree” with this analysis, Plaintiffs concluded, “that is not a basis for the Court to exclude Melzer’s conclusions based on his extensive experience.” The Court agreed.
c. Depreciation Standard Industry Practices
State Farm similarly sought to exclude Melzer’s opinions on “sales tax depreciation practices for the insurance industry as a whole.”
Plaintiffs responded by highlighting Melzer’s “more than a decade of experience regarding the adjustment of insurance claims,” including working for Farmers, Travelers, and during his “nearly five years as a public adjuster working with multiple insurers from 2020 to the present.”
Much of that time was spent working with XactWare products, including XactContents®, which Plaintiffs believe render him qualified to “offer opinions as to the industry standard for adjustment of contents insurance claims.”
As with his other opinions, the Court found that it is more likely than not that Melzer meets the four requirements. While a fact finder may conclude that State Farm’s sales tax depreciation practices are not what Melzer claims them to be, that does not render his opinion and testimony inadmissible.
d. Rule 26 Testimony
Plaintiffs acknowledged that “they, and State Farm, are precluded from offering undisclosed expert opinions.” But they maintained that “Melzer’s opinions as to the typicality of insurers not depreciating sales tax were explicitly disclosed in his report.”
No party may offer undisclosed expert opinions at trial. The Court held that the example in the preceding paragraph was disclosed and will not be excluded.
3. Eugene Peterson
a. Methodology
Peterson concluded that “XactContents® software contains global and line-item settings that allow an insurance company to apply depreciation based on one of three methods: 1) percentage, 2) by a fixed dollar amount, and 3) by age with an adjusted condition.” He opined, “the software allows complete control over how depreciation is calculated, so each insurance company can set its policies for depreciation without needing to customize the software. From the software’s perspective, a user can determine what line items are to be depreciated and what is to be depreciated in each line item, e.g., sales tax.”
b. Opinions on XactContents® Data Extraction
State Farm “did not dispute Peterson’s ability to testify regarding what the XactContents® tool is and how it may be used.” Instead, it sought to exclude Peterson’s “feasibility opinion—that the Combined Pitkin Dataset in this matter can be used by someone else to reliably identify class members or calculate damages.”
The Court found that Peterson sought to offer a relatively narrow opinion with respect to the structure and abilities of XactContents® to assist Plaintiffs in calculating damages in this case. He has significant experience working with XactContents®.
4. Duane Steffey
Steffey was hired by State Farm to “evaluate the basis and foundation for Regan’s, Melzer’s, and Peterson’s opinions” at class certification. State Farm also disclosed Steffey as a rebuttal expert to Regan’s supplemental report.
a. Class Membership
Plaintiffs took issue with how Steffey criticized Regan’s identification of 41,153 class members in his Supplemental Report.
State Farm countered that Steffey’s rebuttal report criticizing Regan’s “new approach to identifying class members and calculating damages” was “based on his knowledge and education in statistics, previous experience, and the materials he reviewed.”
The Court agreed with State Farm that exclusion is not warranted. Steffey engaged in a thorough review of the materials provided to him, including all exemplar claims identified by Regan. He then identified at least one “exemplar” Plaintiff who potentially lacked injury and damages, thus raising questions about Regan’s methodology for identifying class members.
b. Damages Calculations
Plaintiffs also sought to exclude Steffey’s criticism that Regan’s damages “scenarios” are “unreliable.”
The Court found that Steffey raised important questions about Regan’s methodology that go to the heart of this dispute—questions regarding standing, injury, and how to identify class membership. His opinions are relevant. They can be tested. And they may assist the trier of fact in resolving the question of damages and standing in this case.
c. Data Fields Interpretation
Plaintiffs sought to exclude Steffey’s claim that some of Regan’s “descriptions of certain data fields in the Combined Pitkin Dataset ‘have not been corroborated by anyone with requisite knowledge.’”
The Court found that Steffey properly critiqued Regan’s assumptions in the Combined Pitkin Dataset, a topic which he, as a statistician, may opine. That Steffey recognized he cannot judge the accuracy of the fields is a different question than identifying Regan’s failure to corroborate the Dataset.
d. Substantial Revision Opinion
Plaintiffs finally sought to exclude Steffey’s opinion that Regan’s supplemental report represents a “substantial revision” to his analysis in the original report.
Credibility is always an issue for the jury to consider, and Steffey’s opinion about the “drastic” change “underscores the unreliability of Regan’s approach generally.”
State Farm is entitled to present this opinion as an attack on Regan’s credibility at trial. In sum, the Court will not exclude Steffey’s testimony.
Held
The Court denied the parties’ motions to exclude, as each request raises issues of credibility—a question reserved for the factfinder—instead of admissibility.
Key Takeaway
Plaintiffs must show it is more likely than not that: “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert [has reliably applied] the principles and methods to the facts of the case.” Applying this standard, State Farm argues that Plaintiffs have not met their evidentiary burden.
On November 10, 2022, Kenneth and Phyllis Zerr perished in a house fire. Plaintiffs—the Zerrs’ children and Kenneth Zerr’s estate—alleged that the fire was caused by a defective dehumidifier produced by Gree.
In support of their defense, Defendants planned to use expert witnesses. On the origin of the fire, Defendants offered Todd Soong. On the potential electrical causes of the fire, Defendants offered Arash Hajjim. Lastly, on fire dynamics, patterns, and potential causes of the fire, Defendants offered Carlos Fernandez-Pello. Together, the experts purport to establish that the cause of the fire remains undeterminable. Plaintiffs sought the exclusion of three defense experts.
Plaintiffs have also produced Roy Deppa as an expert on the topic of Consumer Product Safety Commission (CPSC) regulations and procedures for the purpose of establishing that Defendants failed to timely report dangerous defects in their dehumidifiers. Defendants sought the exclusion of Deppa.
Fire Investigation Expert Witness
James Todd Soong is a certified fire investigator (CFI) by the International Association of Arson Investigators (IAAI) and a certified fire and explosion investigator (CFEI) by the National Association of Fire Investigators (NAFI). He has in excess of 10 years of experience.
Dr. Carlos A. Fernandez-Pello is a Distinguished Professor of the Graduate School in Mechanical Engineering, at the University of California, Berkeley, USA. His work involves applying fire thermodynamics and combustion principles to analyze various aspects of fire and combustion processes, ranging from laboratory-scale solid fuel combustion to wildland fire dynamics.
Roy W. Deppa has over 40 years of experience in product safety, including 27 years in various positions at the Consumer Product Safety Commission. This experience gave him extensive knowledge of the agency’s regulations, processes, and procedures, as well as industry standards.
He is a registered Professional Engineer licensed in the State of Maryland.
Defendants retained Soong to determine the origin of the fire and its potential causes. Plaintiffs argued that Soong’s opinions must be excluded because they are based on incomplete and inaccurate information and they are not the product of reliable principles and methods.
A. Soong’s opinions on the origin and cause of the fire are admissible
Soong followed the methods prescribed by NFPA 921 in determining that the fire originated in the home’s utility room and that the cause of the fire could not be definitively determined. He performed an inspection of the building, observing fire damage levels and patterns.
Plaintiffs argued that Soong’s opinions are unreliable because he did not conduct his own testing; he uses “ambiguous words such as ‘possible,’ ‘may,’ and ‘can’”; and he developed his opinions with cherry-picked facts and confirmation bias.
However, the Court found that Soong’s method of determining the origin and potential causes of the fire—relying on observations of physical evidence, scientific principles, experience, and the opinions of Defendants’ other expert witnesses—is consistent with NFPA 921 and sufficient to satisfy Rule 702.
NFPA 921 advises that investigators should seek assistance when they “lack expertise to properly attribute meaning to a piece of data” and should utilize the “special talents or training” of other individuals in the fields of “electrical, heating and air conditioning, and other engineering fields” when needed. And NFPA 921 specifically instructs investigators to utilize words like “probable” and “possible” to denote the appropriate level of certainty.
B. Soong’s opinion relating to spoliation is inadmissible
Plaintiffs also argued that “Soong improperly claimed spoliation of evidence” under NFPA 921, which defines spoliation as “loss, destruction, or material alteration of an object or document that is evidence or potential evidence in a legal proceeding by one who has the responsibility for its preservation.”
The Court found that Soong is not qualified to opine on whether anything he observed was a result of “spoliation” or some other cause.
II. Arash Hajjam
Plaintiffs argued that Hajjam’s opinions must be excluded because he failed to follow the methodology outlined in NFPA 921.
However, Hajjam followed NFPA 921’s prescribed method for fire cause determination. His report relied on two joint site examinations, two lab inspections, the expert reports of the other fire investigation experts proffered in this case, and several other photographs and documents, including NFPA 921.
Based on his observations of the scene and analysis of the artifacts, Hajjam identified three potential causes of the fire—the dehumidifier, the branch circuit wiring in the ceiling, and a nearby light fixture—and examined each in a laboratory. Hajjam then evaluated each potential cause and ultimately concluded that “given the extensive damage and the presence of missing artifacts, multiple potential ignition sources remain, preventing a definitive conclusion regarding the exact ignition source of the fire.” The Court found that Plaintiffs’ arguments regarding the sufficiency of Hajjam’s testing and his alleged consideration of improper evidence are insufficient, in this case, to undermine the admissibility of his testimony.
III. Carlos Fernandez-Pello
Defendants offered Fernandez-Pello to discuss “potential causes and contributing factors to the fire and the possibility of the subject Dehumidifier and other potential ignition sources causing the fire.” Specifically, he was expected to provide testimony that the cause of the fire is indeterminate as per NFPA 921.
Fernandez-Pello’s opinions followed NFPA 921’s prescribed method for fire cause determination. Moreover, Fernandez-Pello discussed the fire patterns surrounding the dehumidifier, the results of the dehumidifier tests, and generated computer simulations.
Plaintiffs argued that Fernandez-Pello’s opinions should be excluded because (1) he failed to consider the presence of additional fuel loads in the vicinity of the dehumidifier; and (2) he failed to conduct testing regarding internal arcing in the dehumidifier. Those arguments fail. Although Fernandez-Pello initially testified that he was not aware of several plastic buckets near the dehumidifier, he later submitted errata indicating that he had reviewed photographs of the buckets, “concluded that the buckets didn’t burn, only melted,” and “thus, there was no need to investigate the issue anymore.”
Such inconsistency in Fernandez-Pello’s testimony on different occasions may be relevant to his credibility as a witness, but it does not undermine its admissibility altogether. And given Fernandez-Pello’s position that the dehumidifier could not have been the cause of the fire, regardless of how it ignited, the fact that he did not do additional testing to determine whether there was internal arcing did not undermine the credibility of his opinion.
IV. Roy Deppa
Defendants argued that Deppa’s testimony should be excluded because (1) Deppa is unqualified, as a professional engineer, to opine on the interpretation of federal regulations or Defendants’ state of mind; (2) his opinions concerning the process by which companies issue recalls and Defendants’ state of mind lack scientific methodology; (3) his opinions improperly relate only to punitive damages; and (4) his opinions, even if admissible, are barred under Federal Rule of Evidence 403, as his “interpretation of federal regulations and Defendants’ obligations under them would run the risk of creating a danger of overriding the Court’s jury instructions on the same” and his opinions concerning the severity of Defendants’ failure to recall risked interfering with the jury’s duty to evaluate liability.
Analysis
As an initial matter, the Court found that Deppa’s proposed testimony relating to Defendants’ state of mind is improper. Moreover, Deppa may not offer his opinion about whether Defendants’ conduct violated applicable regulations because the the law is clear that expert witnesses may not opine as to whether a party violated a given regulation.
The Court also shared Defendants’ concern that Deppa’s report included qualitative characterizations of Defendants’ conduct unconnected to any specific industry standard, and that such characterizations invade the province of the jury, who will be tasked with determining if Defendants’ conduct “showed complete indifference to or conscious disregard for the safety of others.”
In spite of that, the Court concluded that Deppa, based on his professional experience, is qualified and permitted to testify about (1) the industry standards relating to CPSC recalls, including references to relevant regulations, so long as he does not opine on whether Defendants’ conduct actually violated any regulations; and (2) Defendants’ conduct in response to the product defect that Plaintiffs allege is at the heart of this case, including the effects of those actions on the availability of the defective product.
Held
The Court denied Plaintiffs’ motions to exclude the testimony of Arash Hajjam and Carlos Fernandez-Pello.
The Court granted in part Plaintiffs’ motion to exclude the testimony of Todd Song.
The Court granted in part Defendants’ motion to exclude the testimony of Roy Deppa.
Key Takeaway
Expert testimony on “the intent, motives, or states of mind of corporations, regulatory agencies and others have no basis in any relevant body of knowledge or expertise.” Thus, Deppa may not opine on what Defendants, or individuals employed by Defendants, thought or about their motivations.
Please refer to the blogs previously published about this case:
On November 10, 2022, Kenneth and Phyllis Zerr perished in a house fire. Plaintiffs—the Zerrs’ children and Kenneth Zerr’s estate—alleged that the fire was caused by a defective dehumidifier produced by Gree.
To support their theory that the fire was caused by a defective dehumidifier, Plaintiffs planned to use expert witnesses. On the origin of the fire, Plaintiffs offered Robert D. Helmkamp. On potential electrical causes of the fire in the room identified as the origin, Plaintiffs offered William Truss. And on the origin of the fire within the dehumidifier and design defects in the dehumidifier, Plaintiffs offered Derek Starr.
Together, the experts purported to establish the fire’s cause by identifying the origin of the fire through Helmkamp, eliminating alternative causes through Truss, and examining the dehumidifier to establish an origin theory through Starr. All three experts purported to have relied on the National Fire Protection Association’s publication, NFPA 921: Guide for Fire and Explosion Investigations (“NFPA 921”). However, Defendants filed motions to exclude all three expert witnesses.
Fire Investigation Expert Witnesses
Robert David Helmkamp is a Certified Fire Investigator through the International Association of Arson Investigators, the National Association of Fire Investigators, the National Board on Fire Service Professional Qualifications, and the State of Missouri.
William W. Truss is a Certified Fire and Explosion Investigator (NAFI-CFEI) and a Certified Vehicle Fire Investigator (NAFI-CVFI). He is a member of the Institute of Electrical and Electronics Engineers (IEEE), the International Association of Arson Investigators (IAAI), the National Association of Fire Investigators (NAFI), and the National Fire Protection Association (NFPA).
He also graduated with Electrical Engineering and Computer Engineering Degrees from the University of Missouri – Columbia in 1987 and is a licensed professional engineer in several states.
Derek A. Starr is a professional forensic electrical engineer and fire investigator. Prior to his current employment, he spent more than six years performing certification evaluations at Underwriters Laboratories, Inc.
To begin with, Helmkamp followed the methods prescribed by NFPA 921 in determining the fire’s origin. He analyzed witness information, fire patterns, and fire dynamics. Helmkamp also performed an inspection of the building, observing fire damage levels and patterns. He examined the exterior of the house before moving to the interior, starting in areas with the least damage and moving to the areas with the most damage. Through his inspection, he determined that the fire started in the utility room by systematically eliminating every other room as a possibility.
He then used burn patterns and relative fire damage to identify a suspect zone within the utility room. Ultimately, he concluded that “based upon fire patterns, degrees of fire damage, fire behavior indicators and electrical activity within the dehumidifier appliance, it is my professional opinion the fire originated at, or within, the dehumidifier appliance located on the floor in the basement utility room.”
Defendants also contended that Helmkamp failed to consider evidence of alternative ignition sources, including ceiling-level electrical arcing, minimally damaged combustibles, and the results of the second lab exam. Helmkamp did not ignore such evidence. In his initial report, he noted the “lack of damage observed to combustible and metal components located in close proximity nearby” and “thermal damage, likely masking evidence of electrical arcing.” And in his supplemental report, he considered the “additional investigation and data” collected at the second lab exam, including the opportunity for closer examination of the evidence of ceiling-level electrical arcing. In both reports, he found such evidence consistent with his opinion that the fire originated at or within the dehumidifier. While Defendants’ experts may disagree with Helmkamp about the significance of the evidence, Defendants have not pointed to any “total lack of consideration of .. . clear alternative ignition sources constituting ‘serious error.’”
II. William Truss
Defendants argued that Truss’ opinions must be excluded because he failed to follow NFPA 921; he relied on “negative corpus”; he conducted no testing; and he failed to consider alternative ignition sources and contradictory evidence.
As documented in his initial report, Truss followed NFPA 921’s prescribed method for fire cause determination. His report relied on three site examinations (two of which were joint examinations), a laboratory examination, Helmkamp’s report and several other documents and procedures.
Truss identified and analyzed electrical artifacts in the area of origin. Truss then systematically eliminated the electrical artifacts other than the dehumidifier as potential causes. He began by eliminating artifacts that were substantially outside the area of origin. Then he eliminated artifacts that showed no evidence of an electrical failure. That left four electrical artifacts that could have been the cause of the fire. Truss then individually evaluated the hypotheses that each of the remaining artifacts contributed to the cause of the fire, explaining why he found that three of them were “inconsistent with the facts and the principles of science.”
Defendants argued that Truss’ opinion should be excluded because his evaluations of alternative ignition sources lacked “scientific testing, analysis, measurements, calculations, empirical data, or peer-reviewed literature,” but that does not defeat its admissibility.
However, no specific kind or quantity of “testing” is necessary for Truss’ testimony to qualify as reliable. His evaluations of the four hypotheses cite observations of physical evidence and his own experience.
Truss addressed “the additional investigation and data collected” in a supplemental report, finding that none of it was in conflict with his earlier opinions.
III. Derek Starr
A. Starr’s opinion on the origin of the fire is admissible
Starr’s opinion was not based only on internal damage to the dehumidifier; he also relied on the opinions of Helmkamp and Truss. Starr also did not ignore the results of the second lab exam. He considered the findings and concluded that they did not support an alternative hypothesis or conflict with his previously stated opinion. Resolving the experts’ disagreements as to the significance of the second lab exam is a job for the jury.
Therefore, the Court held that Starr’s methods in determining that the fire originated internally to the dehumidifier—relying on observations of physical evidence, scientific principles, experience, and the opinions of Plaintiffs’ other experts—were consistent with NFPA 921.
B. Starr’s opinion relating to UL certification is admissible
Defendants objected to Starr’s opinions relating to the dehumidifier’s UL listing because (1) he ignored the absence of a pattern of dehumidifier fires prior to 2012 and evidence that Plaintiff Hillman purchased the dehumidifier in May 2011, (2) he provided no timeline as to when the UL listing would have been removed and whether it would have actually prevented the sale of the dehumidifier if it was purchased in May 2011, and (3) he did not sufficiently explain UL standards or decision-making processes or “provide any evidence that exceeding a temperature rating under similar testing would automatically trigger removal of the UL Mark.”
Analysis
In his initial report, Starr explained what a UL listing is, what purpose it serves, and the requirements UL imposes on manufacturers, including the duty to inform UL if a manufacturer becomes aware that a certified product could pose a “substantial hazard.”
Starr’s second supplemental report explained why the November 2010 Low Refrigerant Charge Operation Test of a GE-branded dehumidifier is relevant to the dehumidifier at issue in this case; what the test results were; and why they were indicative of a fire hazard. Finally, he opined that the test provided Gree with “knowledge of a substantial hazard to users,” which triggered its duty to notify UL, and would have jeopardized its UL listing.
Defendants also objected that Starr ignored the evidence that Hillman purchased the dehumidifier in 2011 and “provided no timeline as to when the UL listing would have been removed and/or whether this would have actually prevented the sale of the subject Dehumidifier.”
But—as far as the Court can tell—Starr’s opinion did not appear to rest on a disputed fact. His opinion did not assert that decertification would have happened on any particular timeline or prevented any particular sale, and it also did not rest on any claims about reports of dehumidifier fires.
IV. The Experts’ Testimony will not be Excluded under Rule 403
Defendants also argue that all three experts’ testimony should be excluded under Federal Rule of Evidence 403, because its probative value is substantially outweighed by the danger of confusing or misleading the jury. The Court disagreed. All three experts’ opinions are probative of critical issues the jury will have to decide, and the Court has seen no evidence that they would pose a significant risk of confusing or misleading the jury.
Held
The Court denied Defendants’ motions to exclude the testimony of Plaintiffs’ experts Robert Helmkamp, William Truss, and Derek Starr.
Key Takeaway
In the context of fire investigations, expert opinions formed on the basis of observations and experience may meet the Rule 702 reliability threshold. Similarly, an expert opinion based on the NFPA 921 investigative guidelines for fire investigations meets this reliability threshold if NFPA 921 is applied reliably.
Plaintiff, Edward Montelongo, alleged that he has developed asbestosis due to exposure to asbestos through his work at various facilities, including Avondale Shipyards, Kaiser Aluminum & Chemical Corp., and Shell Oil Company’s Norco and Yscloskey facilities.
Defendants Huntington Ingalls Incorporated and Shell USA, Inc.’s (collectively, “Defendants”) retained medical expert Dr. Andrew J. Ghio. Plaintiff asked the Court to preclude Ghio from testifying at trial that Plaintiff has chronic obstructive pulmonary disease (“COPD”).
Pulmonary Medicine Expert Witness
Andrew Jonathan Ghio is board certified in both internal medicine and pulmonary medicine.
He is certified by the National Institute for Occupational Safety and Health (“NIOSH”) as a B Reader, meaning that he is certified to interpret radiology and diagnose lung conditions associated with dust exposures, including asbestos. He is widely published in the fields of pulmonary disease and internal medicine.
In this case, Plaintiff did not contest that Ghio is qualified to testify as an expert. Rather, Plaintiff challenged the reliability of Ghio’s opinion that Plaintiff has chronic obstructive pulmonary disease (“COPD”), arguing that it is unreliable in light of the uncontested fact that Plaintiff did not meet the American Thoracic Society (“ATS”) and the Global Initiative for Chronic Obstructive Lung Disease (“GOLD”) criteria for a diagnosis of COPD.
However, as Defendants argued, Ghio bases his expert opinion on multiple substantial sources other than the ATS and GOLD diagnostic criteria. The Court cannot determine that Plaintiff’s failure to satisfy the ATS and GOLD diagnostic criteria operates as a full-stop bar on Defendants’ experts testifying reliably that Plaintiff may have COPD.
Held
The Court denied Plaintiff Edward Montelongo’s motion to partially exclude the testimony of medical expert Dr. Andrew Ghio.
Key Takeaway
The fact that opposing parties do not agree with the facts relied upon by an expert or his interpretation of those facts does not render his opinions unreliable; challenges related to the basis of an expert’s opinions are thus best suited for cross-examination, not exclusion.
Case Details:
Case Caption:
Montelongo V. Bayer Cropscience, Inc.
Docket Number:
2:25cv555
Court Name:
United States District Court for the Eastern District of Louisiana
On September 28, 2020, HC&D and Cashman Equipment entered into a purchase and sale agreement for the offshore deck barge JMC 254, a 250-foot by 72-foot by 16-foot welded steel offshore deck barge.
HC&D alleged that it was induced to purchase the barge and sustained damages as a result of Cashman Equipment’s fraudulent misrepresentations.
Defendant filed a motion to exclude or limit the expert testimony of one of Plaintiff’s experts, Fred Rodolf.
Maritime Expert Witness
Fred Rodolf Jr. has worked in the commercial maritime industry since 1990. He holds a United States Coast Guard 500-Ton Master’s License and a 4,000 Horsepower Engineer’s License.
His professional experience includes vessel acquisition, brokerage, structural evaluation, interpretation of ultrasonic thickness surveys, coordination with classification societies, and oversight of structural steel renewal projects.
Rodolf relied on a repair quote from a Mexican shipyard, ISP, referred to as the “ISP Quote,” which was a prominent and sometimes exclusive source for formulating his opinions on the condition, value, utility, and repair costs of the barge. Defendant sought to exclude Rodolf’s anticipated testimony to the extent that it relied on the third-party repair quote.
However, the Court was satisfied that the ISP Quote possessed at least the minimal reliability required to form the basis of Rodolf’s expert opinion.
Held
The Court denied Defendant’s motion to exclude or limit the expert testimony of Fred Rodolf.
Key Takeaway
Experts do not need to independently validate data upon which they rely if reliance on its accuracy is reasonable for experts in that field. Any expert retained to determine the condition and value of a vessel would certainly reasonably rely on a repair quote in forming an opinion on those topics.
Case Details:
Case Caption:
Hc&D V. Cashman Equipment Corp.
Docket Number:
1:22cv10224
Court Name:
United States District Court for the District of Massachusetts
Mark McCown was working as a locomotive engineer for Defendant Norfolk Southern Railway Company at the Bulls Gap, Tennessee Rail Yard. McCown was standing on the ballast slope next to the track when the rock he was standing on gave way and McCown fell onto his backside. He immediately experienced pain upon his fall and he ultimately developed a condition called Complex Regional Pain Syndrome (“CRPS”) due to the fall. McCown filed this suit against Norfolk Southern pursuant to the Federal Employers’ Liability Act (“FELA”) asserting that his fall and subsequent injury was due, at least in part, to Norfolk’s negligence. While the parties do not dispute that a causal relationship exists between McCown’s fall and his CRPS diagnosis, they do dispute whether any negligent act or omission by Defendant contributed to McCowns fall.
Plaintiff sought compensation for the costs of future medical care and retained Christopher R. Sellars, DO, CLCP “to create a life care plan that assesses his future care needs and the costs associated with that care.”
Norfolk Southern filed a motion to exclude Sellars as an expert, asserting that he is unqualified to render the opinions in his report, his methodology is unreliable, and his conclusions are not properly supported. In the alternative, Norfolk Southern requested that if Sellars is permitted to testify his testimony be limited to treatment that has been ordered by “Plaintiff’s qualified treaters or recommended by qualified specialists” such as Defendant’s own experts.
Physical Medicine and Rehabilitation Expert Witness
Christopher Robert Sellars, DO, CLCP is both a doctor who is board-certified in Physical Medicine and Rehabilitation, also known as physiatry, and a Certified Life Care Planner. Sellars has been practicing medicine since 2007 and is also a publisher and presenter in the areas of physiatry, sports medicine, and pain medicine.
Defendant did not dispute that Sellars is a qualified medical doctor in general but argued that his lack of specific experience with CRPS renders him unqualified to opine regarding Plaintiff’s injury and future medical needs. The breadth of Sellars’ medical practice and experience is rather wide, and although he does not specialize in neurology or CRPS he did have significant experience related to pain medicine and some experience with CRPS cases. Additionally, Sellars conducted a fairly exhaustive review of Plaintiff’s medical records and considered both Plaintiff’s current treatment and recommendations for future treatment in forming his opinions.
Given that CRPS is a chronic pain condition and that he relied upon the information in Plaintiff’s medical records supplied by other medical experts, the Court held that Sellars’ practice and experience is sufficiently related to the diagnosis and treatment of injuries in order to qualify him to render opinions and recommendations related to Plaintiff’s long-term care.
b. Reliability
In attacking the reliability of Sellar’s report, Defendant vehemently asserted that Sellars is not qualified to render opinions regarding Plaintiff’s long-term care due to his lack of specialized knowledge of CRPS. As such, Defendant characterized Sellars’ testimony as pure speculation. Defendant also took issue with the fact that Sellars did not consult with any medical specialists or Plaintiff’s treating physicians before preparing his initial report.
As an initial matter, the Court noted that while Defendant asserted that Sellars’ methodology is flawed, causing his opinions to be unreliable, much of Defendant’s reliability argument rehashes what Defendant perceives are Sellars’ insufficient qualifications. As the Court has already addressed Sellars’ qualifications in the previous section, it will not do so again here. The Court is satisfied that Sellars has provided an adequate factual basis for his conclusions.
Having determined that Sellars’ testimony is not unreliable as a whole, the Court turned to Defendant’s request that Sellars’ testimony be limited. In asking the Court to limit Sellars’ testimony, Defendant essentially asked the Court to limit Sellars’ admissible recommendations regarding Plaintiff’s future care needs to those that Defendant’s own experts have recommended. The the Court cannot, and will not, do so.
Held
The Court denied Defendant’s motion to exclude Plaintiff’s life care plan opinion witness Christopher Sellars, DO, CLCP.
Key Takeaway
While CRPS treatment is not a focal point of Sellars’ practice, Sellars is qualified to treat a wide range of conditions that cause longterm pain and functional impairment, including CRPS.
This case concerns an alleged taking of nearly eighteen acres of real property within the bounds of the Lafitte Area Independent Levee District (“LAILD”) in Jefferson Parish, Louisiana.
CMP owns property within the boundaries of the LAILD in Jefferson Parish. As part of the Rosethorne Basin Lafitte Tidal Protection Levee Project, LAILD entered CMP’s property on or about May 27, 2024, to raise the height of an existing levee. Nearly three months later, on August 22, 2024, LAILD passed Resolution 495, which provided for the appropriation of the portion of CMP’s land containing the levee. CMP filed the suit against LAILD for failure to pay just compensation for a taking under the Louisiana Constitution.
Throughout the course of the underlying suit, CMP hired three experts, Baldwin R. Justice, Dr. Fred Fellner, and Dr. Malcolm Guidry to assist in calculating the value of its land occupied by LAILD. LAILD sought to exclude, or alternatively limit, the testimony of CMP’s expert witnesses.
Arborist Expert Witnesses
Frederick Joseph Fellner, Ph.D. worked for Louisiana State University for 25 years as an Arboricultural and Green Infrastructure Manager. In this role, he was responsible for “all landscape construction” including “protection . . . pre, during and post construction” and oversaw “risk reduction for the protection of people and property from failure of trees.”
Dr. Malcolm M. Guidry is a consulting arborist with more than 30 years of experience in arboriculture, urban forestry, tree risk assessment, and forensic tree investigations. He has provided expert consulting services since 1991 in matters involving tree appraisal, tree health diagnosis, construction-related tree impacts, and urban forest management.
He is licensed as a consulting arborist in both Louisiana and Mississippi and is affiliated with professional organizations including the American Society of Consulting Arborists and the International Society of Arboriculture.
Baldwin R. Justice is a general certified real estate appraiser in Louisiana, Mississippi, Texas, Florida and Alabama, and he has extensive experience in the appraisal of nearly all property types in markets across our entire geographic coverage area. He has also been awarded the prestigious the MAI designation by the Appraisal Institute®. Finally, Justice has been qualified as an expert witness in the field of real estate appraisal and provided testimony in numerous local, state, federal, and Unites States Tax courts throughout the region.
LAILD did not challenge the qualifications of Justice, Fellner, or Guidry, nor did it argue that their expert reports are the products of unreliable methodology or principles. Instead, LAILD contended that the expert reports of Justice, Fellner, and Guidry are irrelevant because they applied an improper method of valuation and/or compensation.
Here, the Court found that the expert report of Justice, along with Fellner and Guidry’s joint report, are relevant to the issue of damages. All three experts opine on the valuation of the land taken by LAILD, and their reports will assist the jury in understanding the appropriate amount of compensation, if any, owed to CMP. Moreover, the Court found that the testimony based on the expert reports did not present a danger of unfair prejudice, will not confuse the issues, or mislead the jury.
The Court has found that LAILD engaged in an unconstitutional partial taking of CMP’s property and determined that CMP is entitled to recover damages pursuant to the theory of inverse condemnation under Louisiana law. Specifically, the Court reasoned that CMP would be entitled to present evidence relating to the “highest and best use” of the taken property, severance damages, and fair market value of the property.
In sum, the Court’s determination as to the legal standard for any damages undercuts LAILD’s argument, as such evidence is relevant for the jury in deciding the factual determination of damages. Because CMP’s expert reports enumerate damages consistent with those categories, the Court declined to exclude the testimony of the experts as to their expert reports under Rule 403. Importantly, to the extent that any portion of the reports are inconsistent with the Court’s legal determination of appropriate damages for a partial taking, the experts will be precluded from testifying as to those inconsistent parts of the reports.
Held
The Court denied LAILD’s motion to exclude, or alternatively limit, the testimony of CMP’s expert witnesses, Baldwin Justice, Dr. Fred Fellner, and Dr. Malcolm Guidry.
Key Takeaway
Even if evidence satisfies the requirements of Rule 702, other evidentiary rules, such as Rule 403, may still operate to exclude the evidence.
Case Details:
Case Caption:
CMP, L.L.C. V Board Of Commissioners For The Lafitte Area Independent Levee District
Docket Number:
2:24cv2298
Court Name:
United States District Court for the Eastern District of Louisiana
Plaintiff Jonathan Conner is a Jones Act seaman who worked for REC Marine aboard the M/V GOL Warrior. While working aboard the vessel, he suffered what was later diagnosed as a heart attack at some point in the day on January 27, 2024.
Conner alleged that REC Marine was negligent in its handling of his medical emergency and that the vessel was unseaworthy because the crew lacked the training and preparation required to respond appropriately to the medical emergency.
REC Marine filed motions to exclude and/or limit the testimony of two of Plaintiff’s designated experts—Captain Christine Hafen, Plaintiff’s marine liability expert, and Dr. Xianfeng Wen, one of Plaintiff’s treating physicians who is presently designated as a non-retained medical expert pursuant to Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure.
Maritime Expert Witness
Captain Christine Hafen possesses over 25 years of experience in maritime and offshore drilling, including roles as a ballast control operator, dynamic positioning operator, captain and chief mate.
Xianfeng Wen earned his medical degree from Shanghai Medical College of Fudan University in Shanghai, China. To begin with, he completed his residency in internal medicine and fellowship in cardiovascular disease at the University of Texas Medical Branch at Galveston where he served as chief fellow.
Board certified in cardiovascular disease and comprehensive echocardiography, Wen has practiced medicine since 2007. Moreover, he has extensive training in different aspects of cardiovascular care including non-invasive and invasive cardiovascular evaluation, advanced cardiovascular imaging and peripheral arterial and venous diseases.
REC Marine wished to exclude Hafen’s expert report and untimely report supplement. Defendant’s principal argument is that the first two sections of Hafen’s report are inadmissible because she based those opinions on REC Marine’s alleged lack of compliance with the International Safety Management Code (“ISM Code”), a set of regulations that arguably does not apply as a matter of law to the vessel Conner worked on.
Because the M/V GOL Warrior did not fall into the category of vessels that are required to be in compliance with the ISM Code, REC Marine argued that the ISM Code is wholly inapplicable to this matter and thus rendered Hafen’s opinions unreliable since they rested on irrelevant safety standards as applied to this vessel. Additionally, REC Marine wished to exclude the third section of Hafen’s report because it inappropriately provided legal opinions on the Receipt & Release Agreement, which REC Marine argued went outside of the bounds of appropriate testimony for a marine liability expert. It also sought exclusion of her supplemental report that was untimely submitted on March 31, 2026—just over two months after the deadline for Plaintiff to produce his expert reports.
Analysis
1. Opinions Based on the ISM Code Are Permissible.
The Court found that her expert testimony, reliant upon a seemingly widely accepted set of safety standards, provided the kind of specialized analysis that will assist the trier of fact in understanding the evidence in this case. REC Marine may challenge Hafen’s reliance on the ISM Code in cross-examination. And of course, the Court retained the ability to limit or control the scope of her testimony at trial. Overall, the Court will not limit or exclude Hafen’s testimony insofar as she pointed to the ISM Code in support of her conclusions.
2. Opinions About the Receipt & Release Are Inadmissible
REC Marine presses that the third section of Hafen’s expert report, which addressed the Jones Act, should be excluded both because it impermissibly reaches conclusions of law and because it goes beyond the scope of her expertise as a marine liability expert. The Court agreed. Moreover, Plaintiff “did not contest REC Marine’s motion to the extent it sought to prevent Hafen from opining concerning whether Conner’s release was consistent with the Jones Act.”
3. The Supplemental Report Is Excluded, Unless Used for Rebuttal
REC Marine asked the Court to exclude Hafen’s supplemental report because it is not a true supplement and instead contained new opinions and analyzed new data; thus, it should be excluded because it was disclosed over two months after Plaintiff’s deadline to provide his reports.
The Court reviewed the report and found that it went beyond the scope of Hafen’s initial report and is not a mere supplementation to her timely-disclosed expert report. Importantly, the data analyzed in the supplemental report is publicly available and thus was not “unavailable to” Plaintiff nor Hafen at the time of her initial report.
However, the Court noted that Hafen’s supplemental report was issued on March 31, 2026—within the 30-day rebuttal report deadline provided for in Rule 26(a)(2)(D)(ii). That rule provided that an expert disclosure must be made “within 30 days after the other party’s disclosure” so long as “the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C).” To the extent Hafen’s report operates as a rebuttal report to Defendant’s marine liability expert’s report concerning the interpretation of AIS data, the Court will exercise its discretion at trial to allow Hafen to testify as to her supplemental report in this limited way, i.e., as a rebuttal report, if Defendant’s expert’s testimony addresses these issues.
B. Wen’s Testimony Will Be Limited
Wen is properly designated as a non-retained expert and therefore falls within the parameters of Rule 26(a)(2)(C), absolving him of the written report requirement of Rule 26(a)(2)(B). The only question this Court considers is the appropriate scope of his testimony.
1. Compliance With Rule 26(a)(2)(C)
While the disclosed topics are the sorts of subject matters district courts tend to allow treating physicians to testify about, the disclosure is completely silent as to the facts relied upon by Wen in forming his opinions, except for reference to his records.
The Court agreed that mere reference to the medical records, without more, is insufficient to satisfy Rule 26(a)(2)(C)’s disclosure requirement because “ the question is not the level of specificity required in the summary, because Plaintiff has failed to produce any summary of the facts and opinions to which Wen is expected to testify.”
Testimony from a treating physician is certainly important evidence. However, considering that Plaintiff has a retained medical expert who has seemingly issued a timely report that touches on causation and future treatment, it is less important for Plaintiff’s treating physician to testify about causation and future treatment. Prejudice to REC Marine is most likely minimal, and REC Marine raised no prejudice arguments in its briefing. Furthermore, Defendant had the opportunity to take Wen’s deposition and, if it did, glean his perspective on causation and future medicals from his vantage point as a treating physician.
Overall, the Court will not exclude the defect in Plaintiff’s Rule 26 disclosures for Wen because such defect is most likely harmless to REC Marine.
2. Duplicative Expert Testimony Under Rule 403
Defendant cited no case wherein a district court has excluded a second medical causation or future medical treatment opinion as cumulative pursuant to Rule 403. As such, the Court will not, at this time, restrict Plaintiff from calling both a retained expert who specifically produced a report on causation and a non-retained expert who may be able to testify as to causation if his opinions are based on his personal treatment of Conner and nothing more.
Held
The Court granted in part and denied in part the motions to exclude and/or limit the testimony of Captain Christine Hafen and Dr. Xianfeng Wen.
Basically, the motions were granted to the extent that Hafen (1) may only testify as to her supplemental report if it can be properly considered a rebuttal report under Rule 26(e), and (2) may not testify as to the Receipt & Release Agreement. The motions were denied with prejudice as to Hafen’s opinions based upon the ISM Code.
Also, the motions were denied without prejudice as to Xianfeng Wen’s testimony as a non-retained expert.
Key Takeaway
Rule 26(e) allowed the supplementation of a disclosure, such as an expert report, “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect.” But supplementation is not limitless; courts have found that “expert reports may only be supplemented in limited circumstances, specifically where supplementation ‘means correcting inaccuracies, or filling the interstices of an incomplete report based on information that was not available at the time of the initial disclosure.’”
Plaintiff, Mark McCown, a locomotive engineer, fell on his buttocks and immediately experienced pain upon his fall and developed a condition called Complex Regional Pain Syndrome (“CRPS”) due to the fall. McCown filed this suit against Defendant pursuant to the Federal Employers’ Liability Act (“FELA”) asserting that his fall and subsequent injury were due, at least in part, to Defendant’s negligence. While the parties did not dispute that a causal relationship existed between the Plaintiff’s fall and his CRPS diagnosis, they did dispute whether any negligent act or omission by Defendant contributed to Plaintiff’s fall.
Plaintiff sought compensatory damages for his injuries and retained Dr. Robert McLeod to calculate his past and future economic losses. McLeod prepared two reports: a Personal Injury Economic Damages Report (“Personal Injury Report”) and a Life Care Plan Economic Report (“Life Care Report”).
McLeod also prepared supplements that assumed Defendant was totally disabled and would have no future income as well as assumed Defendant is only partially disabled and will be able to engage in part-time work in the future.
Defendant did not argue that McLeod is unqualified, nor did they contest the relevancy of his testimony. However, Defendant did assert that McLeod’s testimony should be excluded in its entirety as unreliable.
Economics Expert Witness
Robert Wesley McLeod has been a financial economics consultant for over 40 years. He earned his doctorate degree in finance and economics from the University of Texas in 1977.
In attacking McLeod’s Personal Injury Report, Defendant first argued that the methodology used in calculating Plaintiff’s loss of fringe benefits was flawed.
Defendant also asserted that McLeod relied on anecdotal evidence from a “single-year snapshot of 2024 benefits cost data,” and that relying on “outlier” anecdotal information is improper.
Next, Defendant argued that McLeod’s methodology “lacked internal consistency.” Specifically, Defendant asserted that McLeod averaged multiple years of historic data in assessing Plaintiff’s future tax rate, but used a single, “cherry-picked” year in determining lost fringe benefits.
McLeod explained that benefits are a percentage of earnings, so calculating lost fringe benefits based on that percentage is “a fairly standard approach.” Defendant argued that “a far more reasonable approach is to tie any increase to the projected inflation rate or healthcare-related costs indices, not wage growth.”
McLeod is a well-qualified economist who provided detailed descriptions of his methods and reasoning in his reports, deposition, and declaration. The mere existence of another method of calculation did not make the method used by McLeod unreliable or not generally accepted among economists. As such, the Court is not persuaded by Defendant’s assertions that McLeod’s methodology is unreliable.
b. Life Care Plan Economic Damages Report
As to the portion of McLeod’s report that addressed pretrial expenses, Defendant argued that “the jury is fully capable of independently reviewing medical bills and adding up the medical expenses incurred by Plaintiff without the assistance of an economist.” While this may be true, the Court did not agree with Defendant’s argument that the inclusion of pretrial damages in McLeod’s report risked confusing the issues and misleading the jury so long as the pretrial damages are the sum of medical expenses Plaintiff has actually incurred to this point.
While any testimony that Plaintiff’s pretrial damages is based upon hypothetical pretrial treatment that Plaintiff did not receive will be excluded, even a treatment that was declined pretrial may still be a necessary treatment in the future based on Plaintiff’s changing needs and responses to other treatments. As such, it is permissible for McLeod’s Life Care Plan Report to include the cost for treatments Plaintiff has previously declined in his calculation of post-trial expenses unless it is a treatment that Plaintiff has stated he will not consider in the future.
Held
The Court denied Defendant’s motion to exclude certain calculations from Plaintiff’s economist, Dr. Robert McLeod.
Key Takeaway
The existence of other methodologies that McLeod chose not to apply was fodder for cross-examination, but it did not warrant the exclusion of his testimony.
