Expert Witness Profiler

Tag: Reliability

  • Marketing Expert Not Allowed to Opine on Consumer Reaction

    Marketing Expert Not Allowed to Opine on Consumer Reaction

    This class action lawsuit arises out of Amazon’s practice of using smart-speaker technology (“Alexa”) to surreptitiously: (a) intercept; (b) eavesdrop; (c) record; (d) disclose; or (e) use millions of Americans’ voices and communications, all without their knowledge or consent. Such conduct blatantly violates Washington’s wiretapping law, which applies nationwide to Plaintiffs and all members of the Class.

    Defendants here, Amazon.com, Inc. and Amazon.com Services LLC (collectively, “Amazon” or “Defendants”), are therefore liable as a result of their egregious violations of the State Wiretapping laws – and are also liable for their violations of the Washington Consumer Protection Act (“CPA”), the Electronic Communications Privacy Act of 1986 (“Federal Wiretap Act”), and the Stored Communications Act of 1986 (“SCA”). Plaintiffs Kaeli Garner, Jodi Brust, Diane McNealy, Michael McNealy, Ricky Babani, Jeffrey Hoyt, Lorlie Tesoriero, Ronald Johnson, Selena Johnson and Caron Watkins (collectively, “Plaintiffs”) brought this action individually, and on behalf of a Class of similarly situated individuals, to redress those violations of law.

    Plaintiffs sought to exclude Amazon’s expert, Dr. Dominique Hanssens‘ opinions because he is not qualified to opine on privacy issues or the law and because the surveys he conducted are neither scientifically valid nor relevant to the issues in this case.

    Marketing Expert Witness

    Dominique Hanssens is a Distinguished Research Professor of Marketing at the UCLA Anderson School of Management and has been on the UCLA faculty since 1977. Hanssens’ undergraduate degree in applied economics was earned at the University of Antwerp. His M.S. and Ph.D. degrees are in Management from Purdue University. His focus is on strategic marketing problems, and both his research and his legal consultations have involved surveys and analysis regarding consumer perceptions and their response to alternative information disclosures.

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

    Discussion by the Court

    A. Knowledge and Expertise

    Plaintiffs argued that, because Hanssens’ expertise is in marketing, not privacy, he should not be permitted to assess consumers’ understanding of Amazon’s privacy policies. But Hanssens does not opine regarding how or whether consumers understood Amazon’s disclosures. Rather, he designed and conducted two surveys, one to see whether providing additional information related to Amazon’s use of Alexa voice recordings impacted consumers’ decisions to register an Alexa device (“Materiality Survey”) and the second to test consumers’ awareness of information regarding how Alexa works and their satisfaction regarding the ease of finding that information (the “Awareness Survey”). Hanssens has knowledge and expertise in consumer marketing and survey design sufficient to offer an expert opinion in this case.

    Plaintiffs also objected to Hanssens’ opinion that “individualized inquiry is needed to assess a particular Proposed Class Member’s awareness of and attitude toward a particular Alexa feature.”

    The objection was abandoned in reply and is overruled. Hanssens describes the data and evidence that led him to that conclusion, including his own survey results.

    B. Materiality Survey

    Plaintiffs argued that Hanssens’ Materiality Survey is irrelevant because it tests a factual scenario that does not apply to any potential class member, one in which the Alexa-enabled device has already been purchased and the consumer must now decide whether to register the device. Although it is possible that a consumer could review Amazon’s policies before purchasing a device, the scenario Hanssens tested appears to be the most common way in which a user becomes familiar with those policies.

    Hanssens ultimately concluded that “the likelihood to register an Alexa Device was statistically indistinguishable between the Test Group (which was shown additional information about Amazon’s practices) and the Control Group.” While the survey results and the conclusion drawn therefrom do not definitively resolve the issue of whether consumers would alter their behavior in the face of effective disclosures, they do suggest that the specific alterations Hanssens tested would not impact consumer behavior. To that extent, they are relevant.

    The problem is that the survey that generated the data underlying Hanssens’ conclusions is unreliable. Hanssens used a participant panel that was already predisposed to share information, excluded anyone who had never purchased or lived with an Alexa device (decisions that may correlate with a heightened concern for privacy), excluded anyone who was uncomfortable sharing personal information (a defect compounded by the fact that demographic information was requested at the beginning of the survey), and excluded anyone who took the time to read the disclosures. Having disqualified 95% of the respondent pool, many for reasons that could bias the responses to the main question of the survey, the results of the survey did not reliably reflect consumer reaction to the tested changes in disclosures.

    C. Awareness Survey

    Hanssens’ awareness survey was designed to test Plaintiffs’ contention that consumers are unaware that Alexa records, transcribes, and stores voice interactions even when the recordings are not intended for Alexa, that the recordings and transcriptions are stored and used by Amazon forever, and that human reviewers listen to and annotate the voice recordings. The survey also assesses whether consumers find these practices acceptable and whether consumers are satisfied with the availability of information regarding Alexa’s features. Plaintiffs argued that the survey results are irrelevant because it is based on consumer knowledge in 2024 and/or at the time they registered their first Alexa device (if in or after 2019).

    While this choice means that the survey results reflect consumer knowledge that has been bolstered by five to ten years of disclosures and may not accurately reflect consumer knowledge when Alexa devices were first introduced, it did not make the results irrelevant. The proposed classes undoubtedly include individuals who first purchased their devices in the studied time frame. While the survey is not coextensive with the class period and cannot reflect the information known to all class members, the results shed light on consumer awareness of the practices covered by the survey.

    Plaintiffs further argued that the Awareness Survey is unreliable because Hanssens did no research or follow-up questioning to confirm the respondents’ recollections, as represented in their survey responses. He did, however, limit the time frame of the questions to five years. As long as a “survey was conducted in accordance with generally accepted survey principles and that the results were used in a statistically correct manner . . ., technical inadequacies in the survey, including the format of the questions or the manner in which it was taken, bear on the weight of the evidence, not its admissibility.”

    Held

    The Court granted in part and denied in part Plaintiffs’ Daubert motion regarding Dr. Dominique Hanssens’ opinions.

    Key Takeaway:

    Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion. That the opposing party can poke holes in a survey’s design and construction is not surprising: surveys are a scientifically constructed sampling method and, like any scientific method applied in the social sciences, there are bound to be limitations, restrictions, and flaws.

    Please refer to the blog previously published about this case:

    Computer Science Expert’s Testimony on the Value of Data Admitted

    Privacy Expert’s Testimony on Alexa Users Limited

    Case Details:

    Case Caption: Garner V. Amazon.Com, Inc.
    Docket Number: 2:21cv750
    Court Name: United States District Court for the Western District of Washington
    Order Date: March 30, 2026
  • Statistics Expert Allowed to Opine on PFAS Exposure

    Statistics Expert Allowed to Opine on PFAS Exposure

    This case arises out of the contamination of surface waters and drinking water in Chattooga County, Georgia, with per- and polyfluoroalkyl substances known as “PFAS.”

    In essence, Plaintiff Earl Parris, Jr., alleged that the Defendants have contaminated his city’s water supply and thus his household water with PFAS. Parris is a resident of Summerville, Georgia, who receives running, potable water to his home from the Summerville Public Works and Utilities Department.

    The City of Summerville—which has intervened in this case—used Raccoon Creek, a tributary of the Chattooga River, as the main source of its municipal water supply. The Defendants are the following companies, which allegedly manufactured and supplied the PFAS discharged into Raccoon Creek: 3M Company (“3M”), Daikin America, Inc., E.I. du Pont de Nemours and Company, and The Chemours Company. Parris alleged that Raccoon Creek and—consequently, his household water—have been contaminated with PFAS by the Defendants. PFAS can allegedly cause adverse health effects such as kidney and testicular cancer.

    Parris and Summerville have jointly moved to exclude the testimony of defense expert Laurentius Marais under Federal Rules of Evidence 702 and 403.

    Statistics Expert Witness

    Marthinus Laurentius Marais is a consultant specializing in applied mathematical and statistical analysis. He holds graduate degrees in mathematics, statistics and business administration from Stanford University. At the Stanford Graduate School of Business he received a PhD degree for a dissertation on applications of computer-intensive statistical methods to quantitative analyses of topics in business. He has served on the faculties of the University of Chicago and Stanford University.

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

    Discussion by the Court

    Marais’ expert report examined kidney and testicular cancer rates in counties with and without high PFAS levels in the water supply, including in Chattooga County, and concluded that there is “no statistically detectable, empirically significant indication of an association” between those cancer rates and PFAS exposure.

    A. Relevance

    The Plaintiffs contended that Marais’ conclusions regarding the lack of association between PFAS and cancer are irrelevant because this lawsuit is based on the city’s drinking water being out of compliance with the EPA’s PFAS limits, not based on personal injury damages from health costs.

    However, the Court agreed with the Defendants that Marais’ opinions are relevant.

    First, the Plaintiffs conceded that evidence regarding whether PFAS “can” cause cancer is relevant to this litigation, and Marais’s opinions may help a jury answer this question. Marais’ opinions compare cancer and PFAS statistics across counties in the United States, not just in Chattooga County.
    The Court is not persuaded by the Plaintiffs’ distinction between “general causation” evidence and “specific causation” evidence. That Marais’ opinions on PFAS and cancer included data from Chattooga County, where Summerville residents reside, is not grounds for excluding the opinions altogether.

    Second, the Plaintiffs’ extensive allegations of PFAS’ health risks are material to the relevance question. The Plaintiffs explicitly relied on such allegations in their claims for negligence (Counts V, VII), wanton conduct and punitive damages (Count VIII), and public nuisance (Count IX). Evidence that health risk never materialized is therefore relevant to the Defendants’ liability on those claims. For example, weighing testimony about the nonexistent association between PFAS and cancer in the Plaintiffs’ geographic area may help a jury evaluate whether the Defendants were negligent for manufacturing or failing to warn about PFAS in the first place.

    B. Reliability

    The Plaintiffs took issue with four aspects of Marais’ testimony: (1) it misinterpreted the underlying data, which Plaintiffs argue shows above-average testicular cancer rates despite below-average rates for all other types of cancer; (2) it compared county-level cancer data with city-level PFAS exposure data, which weakens the PFAS–cancer association in the case of Summerville because Chattooga County receives only about 20% of its drinking water from Summerville; (3) it is underinclusive because it did not account for latency effects, such as when a Summerville resident moves to a different county and develops cancer decades later; and (4) it is underinclusive because it did not include data from neighboring states where Summerville residents may have sought cancer treatment (e.g., at a Tennessee cancer center less than one hour’s drive away).

    Analysis

    The Court held that the methodology underlying Marais’ testimony was reliable. To begin with, any issues with the content of Marais’ conclusions in interpreting his own data are improper considerations at the admissibility stage. The focus of the reliability inquiry is on the expert’s “principles and methodology,” rather than his or her ultimate conclusions.

    Second, the county-city mismatch argument that the Plaintiffs identify is better suited for cross-examination than an admissibility challenge. The datasets on which Marais relies are produced by reputable organizations. The cancer data is produced at a county level from the National Center Institute, National Institute of Health, and Centers for Disease Control, and the PFAS data is produced at the public water district level by the EPA.

    Lastly, regarding the possibility that Marais’ dataset is underinclusive due to latency and residency problems, this argument too is more appropriate for cross-examination. Other than attempting to identify hypotheticals, the Plaintiffs have not pointed to any evidence that suggests Marais’ datasets depart from standard industry practice.

    For these reasons, the Court declined to exclude Marais’ testimony as unreliable. Marais has shown his methodology is sufficiently sound and that it is “properly grounded, well-reasoned, and not speculative.”

    C. Prejudice

    The Plaintiffs contended that Marais’ testimony will confuse the jury because it would question “(1) where his testimony fits into the City’s case, and (2) why the City has not offered any rebuttal evidence.”

    Any jury would understand the importance of introducing evidence on the health consequences of an alleged pollutant in a water pollution case, and the lack of rebuttal evidence is plainly not grounds for exclusion under Rule 403.

    Held

    The Court denied Plaintiff Earl Parris, Jr., and Intervenor-Plaintiff City of Summerville’s motion to exclude the testimony of Laurentius Marais. 

    Key Takeaway

    Datasets may be imperfect at times, but that is not grounds to render an entire analysis unreliable. The purpose of Daubert is to ensure that an expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”

    Please refer to the blogs previously published about this case:

    Polymers Expert Allowed to Opine on PFOS Sources

    Geology Expert’s Testimony on Potential Alternative Sources Admitted

    Case Details:

    Case Caption: Parris V. 3M Company
    Docket Number: 4:21cv40
    Court Name: United States District Court, Georgia Northern
    Order Date: March 13, 2026
  • Geology Expert’s Testimony on Potential Alternative Sources Admitted

    Geology Expert’s Testimony on Potential Alternative Sources Admitted

    This case arises out of the contamination of surface waters and drinking water in Chattooga County, Georgia, with per- and polyfluoroalkyl substances known as “PFAS.”

    In essence, Plaintiff Earl Parris, Jr., alleged that the Defendants have contaminated his city’s water supply and thus his household water with PFAS. Parris is a resident of Summerville, Georgia, who receives running, potable water to his home from the Summerville Public Works and Utilities Department.

    The City of Summerville—which has intervened in this case—used Raccoon Creek, a tributary of the Chattooga River, as the main source of its municipal water supply. The Defendants are the following companies, which allegedly manufactured and supplied the PFAS discharged into Raccoon Creek: 3M Company (“3M”), Daikin America, Inc., E.I. du Pont de Nemours and Company, and The Chemours Company. Parris alleged that Raccoon Creek and—consequently, his household water—have been contaminated with PFAS by the Defendants. The Plaintiffs jointly filed a motion to exclude the testimony of 3M’s expert witness Andy Davis.

    Geology Expert Witness

    Andrew Owen Davis is a hydrogeologist who holds a Ph.D. in geology and has been involved in investigating a wide range of environmentally contaminated sites for over 40 years.

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

    Discussion by the Court

    Davis concluded that no more than 0.2% of total PFAS load (or 2.9% of perfluorooctane sulfonate (PFOS) load) in the Raccoon Creek watershed originated from 3M’s products.

    This data is extrapolated from sampling data collected downstream of a farm where biosolids traceable to 3M were applied. Using data on the amount of biosolids applied and farm acreage, he calculated that 3M products could contribute approximately 0.052 mg/ton/day of PFOS. He then determined that biosolids traceable to 3M were deposited on two farms in the Raccoon Creek watershed, multiplied the total tons of biosolids applied to those farms by 0.052 mg/ton/day (with some adjustments), and concluded that 3M contributed “at most” 148 mg/day of 5,1000 mg/day (or 2.9%) of PFOS that made its way to Summerville’s water treatment plant.

    Factoring other types of PFAS, Davis found that 3M contributed 0.2% of total PFAS load. To account for the remaining PFAS concentration, Davis pointed to other potential sources of PFAS using existing PFAS literature and additional sampling data. According to Davis, these potential sources include the application of biosolids to farmland post-2000, poultry farms, cotton farms, septic systems, a fish hatchery, lumbar operations, fire retardant from a mill fire, and the household use of certain commercial products.

    Davis’ opinions regarding other ‘potential sources’ of PFAS in Raccoon Creek are speculative and unsupported by data

    Plaintiffs argued that Davis’ methodology amounts to speculation because (a) he relied on studies identifying PFAS in certain products but failed to verify whether those products were actually used in the Raccoon Creek watershed and (b) his sampling data does not adequately support ruling out 3M products as PFAS sources.

    The Plaintiffs advanced a variety of explanations for why Davis failed to prove that some of the potential alternative sources were at work or why they could not account for PFAS concentrations in the Raccoon Creek watershed. But these arguments spoke to the weight rather than admissibility of the evidence.

    For example, with regard to poultry farms, Davis found that several poultry farms in the Raccoon Creek watershed may contribute to PFAS levels because (1) there are several poultry farms in the area, (2) sampling data downstream of one of the farms revealed PFAS concentrations that did not contain the electrochemical fluorination signature of 3M’s products, and (3) studies have found PFAS in “[p]oultry farm bedding materials (litter)” made from recyclable materials and manure. The Plaintiffs did not challenge the sampling data results or the reputability of the studies.

    Instead, they argued that the sampling data and studies are not conclusive, as the PFAS concentrations may be caused by 3M-polluted water purchased by the farms from Summerville and the farms may not even use PFAS-based litter or manure.

    Here, the Court held that Davis’ methodology is adequately reliable for admissibility purposes. First, Davis’ report is not based on bare speculation regarding the potential non-3M PFAS sources. Davis takes his analysis one step further in identifying potential other sources of PFAS, but he is careful throughout his report to refer to these other sources as “potential” sources based on the available PFAS literature and his sampling data.

    Davis did not cherry-pick or conduct impermissible “results-based reasoning”

    The Plaintiffs took issue with Davis’ decision to base his calculation of the 3M-attributable PFOS load on only two farms where biosolids were applied, citing 3M’s and EPA’s supposed statements to the contrary.

    While the Plaintiffs may disagree with Davis’s decision to limit his 3M PFAS calculations to only two farms and may believe it contradicts 3M’s and the EPA’s statements, the Court found that Davis has provided a sufficient basis for his methodological choice.

    According to Davis, he limited his 3M PFAS calculations to two farms because he determined that those farms were the only two where biosolids were applied prior to 2001.

    Regarding cherry-picking certain reports, the Court agreed with the Defendants that Davis is free to rely on facts presented in published reports as well as his own experience and knowledge in forming his opinions where he does not agree with other facts presented in those reports.

    Held

    The Court denied the Plaintiffs’ motion to exclude the testimony of Andy Davis.

    Key Takeaway

    An expert report is not automatically unreliable merely because it agrees with some aspects of an existing report and not others. Therefore, Davis has shown his methodology is sufficiently sound and that it is “properly grounded, well-reasoned, and not speculative.”

    Please refer to the blog previously published about this case:

    Polymers Expert Allowed to Opine on PFOS Sources

    Case Details:

    Case Caption: Parris V. 3M Company
    Docket Number: 4:21cv40
    Court Name: United States District Court, Georgia Northern
    Order Date: March 16, 2026
  • Psychology Expert’s CPTSD Opinions Admitted

    Psychology Expert’s CPTSD Opinions Admitted

    Danesh Noshirvan, an online entertainer and journalist, filed a civil action against Jennifer Couture alleging conspiracy and agency liability, as well as claims for defamation, tortious interference, misappropriation of likeness, and intentional infliction of emotional distress.

    Noshirvan alleged that Couture, Dr. Ralph Garramone, M.D. and OMG Realty, LLC , along with the other named Co-Defendants, conspired with a non-party, Joseph Camp (“Camp”) to tortiously interfere with Plaintiff’s business relationship with his former attorney, defame Plaintiff and intentionally inflict emotional distress upon Plaintiff.

    Garramone Plastic Surgery, Jennifer Couture, Ralph Garramone, and OMG Realty, LLC challenged the testimony of Robert M. Gordon, Ph.D., ABPP.

    Gordon diagnosed Noshirvan with Complex Post-Traumatic Stress Disorder “due to the cyberbullying and damage to his reputation by Joey Camp.” He further opined that Noshirvan would “need many years of intensive psychotherapy to help deal with his CPTSD.”

    Psychology Expert Witness 

    Robert M. Gordon, Ph.D., ABPP has practiced forensic psychology for nearly five decades (since 1976) in both civil and criminal arenas. He is board-certified in Clinical Psychology and in Psychoanalysis, and earned his
    doctorate from Temple University.

    He has authored over 100 publications in areas directly relevant to this case. For example, he co-published research on using the MMPI-2 to detect individuals “faking PTSD” after traumatic events.

    Gordon has taught forensic psychology at the Ph.D. level and given international workshops on psychological assessment and trauma.

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

    Discussion by the Court

    A. Reliability of Methodology

    (1) Post-Traumatic Stress Disorder

    Defendants argued that Gordon’s use of the Clinician Administered PTSD Assessment Questionnaire for DSM-5 (“CAPS-5”) is unreliable.

    Specifically, Defendants pointed out that the DSM-5 requires “exposure to actual or threatened death, serious injury, or sexual violence” and the “presence of one or more of certain symptoms associated with the traumatic events, beginning after the traumatic events occurred.”

    Yet Gordon, according to Defendants, bases his diagnosis on the assertion of “cyberbullying and destruction of reputation.” Since Gordon, according to Defendants, failed to strictly adhere to the diagnostic criteria in the DSM-5, the Defendants contended that Gordon’s testimony must be unreliable.

    First, Defendants argued that Gordon lacked any evidence of exposure to actual or threatened death, serious injury, or sexual violence, because he conducted no independent investigation on Noshirvan’s allegations in the Second Amended Complaint and interview. Any quarrel with not independently verifying any of the allegations that Noshirvan presented to Gordon can be appropriately dealt with on cross-examination.

    Defendants next argued that Gordon failed to follow DSM-5 diagnostic criteria because he did not observe at least one month’s worth of PTSD symptoms before diagnosing a patient with PTSD and relied almost exclusively on Plaintiff’s self-reporting. While Defendants contended that the rationale for using these specific tests was not definitively explained, such concern can be considered through cross-examination and is not a reason to exclude Gordon’s testimony.

    Further, Defendants also pointed the Court to the Georgetown Guidelines for Forensic Assessment of PTSD. However, it too is not enough to show the methodology is unreliable since those guidelines were published before the DSM-5 and did not outline any specific examinations that must be given. Accordingly, the Defendants have not shown that Gordon’s methodology was unreliable as it relates to his diagnosis of PTSD.

    (2) Complex Post-Traumatic Stress Disorder

    Defendants also argued that Gordon’s failure to adhere to the diagnostic criteria of Complex Post-Traumatic Stress Disorder (“CPTSD”) in the ICD-11 as well as his diagnosis being made solely for the purpose of litigation rendered his methodology unreliable.

    Gordon relied on more than mere allegations presented by Plaintiff. Gordon utilized an array of psychological assessments to determine the presence and severity of the symptoms before making any diagnosis. To the extent Defendants disagreed with the diagnosis, they were free to challenge Gordon on cross-examination.

    Defendants next argued that Gordon failed to explain the results of the International Trauma Questionnaire (ITQ) or how he reached the diagnosis of CPTSD.

    However, Defendants failed to show how that the ITQ itself is unreliable, and though how Gordon exactly utilized the ITQ is unknown, it is clear that he still relied upon the underlying PTSD diagnosis in reaching his conclusion.

    Finally, Defendants argued that Gordon’s CPTSD diagnosis was made solely for purposes of this litigation. Defendants contended that while it is not dispositive, it further weighs against the reliability of Gordon’s testimony since Noshirvan only met with Gordon for about an hour via Zoom and was not re-examined in the future. While it is true Gordon only met with Noshirvan for about an hour, this argument went to the credibility of Gordon, not the reliability of his methodology.

    B. Helpfulness

    It is undisputed that Gordon utilized the CAPS-5, ITQ, Brief Psychiatric Rating Scale, Beck Depression Inventory-II, Beck Anxiety Inventory, and Miller Forensic Assessment of Symptoms Test. Although Defendants took issue with the conclusions reached by Gordon as well as the methods utilized, the conclusions went to a crucial issue in this case—whether Noshirvan suffered emotional distress.

    Further, Defendants acknowledged that the diagnostic criteria of PTSD and CPTSD is beyond the understanding of the average lay person. Defendants were able to cross-examine Gordon regarding why he utilized the specific tests in lieu of other examinations they contended are better suited for such diagnosis. These quarrels, however, are not sufficient to exclude the evidence.

    Ultimately, the Court found that Gordon satisfied all three prongs of Daubert, and the Court found that no undue prejudice from the anticipated testimony.

    Held

    • The Court denied as moot Defendant Garramone Plastic Surgery’s motion to exclude the testimony of Robert M. Gordon, Ph.D., ABPP.
    • Jennifer Couture, Ralph Garramone, and OMG Realty, LLC’s motion to exclude the testimony of Robert M. Gordon, Ph.D., ABPP was denied.
    • Garramone Plastic Surgery’s motion to exclude the testimony of Robert M. Gordon, Ph.D., ABPP was denied.
    • Patrick Trainor, Central Park of Southwest Florida, LLC, and Anti-Doxing League, Inc.’s motion to exclude the testimony of Robert M. Gordon, Ph.D., ABPP was denied.

    Key Takeaway

    Gordon satisfied all three prongs of Daubert because he utilized an array of psychological assessments to determine the presence and severity of the symptoms before making any diagnosis.

    Further, Defendants acknowledged that the diagnostic criteria of PTSD and CPTSD is beyond the understanding of the average lay person.

    Case Details:

    Case Caption: Noshirvan V. Couture
    Docket Number: 2:23cv1218
    Court Name: United States District Court, Florida Middle
    Order Date: March 13, 2026

  • Automotive Industry Expert’s Testimony on Pricing Practices Excluded

    Automotive Industry Expert’s Testimony on Pricing Practices Excluded

    The Plaintiffs in this putative national class action are insureds who filed “total loss” claims for the actual cash value (“ACV”) of their totaled vehicles under their automobile insurance policies sold by State Farm Mutual Automobile Insurance Company or State Farm Fire and Casualty Company (collectively, “Defendants” or “State Farm”). Plaintiffs challenged State Farm’s application of a “typical-negotiation adjustment” (“TNA”) in the calculation of the ACV of Plaintiffs’ vehicles, which reduced Plaintiffs’ total loss payments based on the average difference between the list price and a lower price that a dealer would theoretically accept.

    Alleging that this methodology resulted in undervalued payments, Plaintiffs brought various claims, including breach of contract, breach of the covenant of good faith and fair dealing, fraudulent concealment, fraudulent inducement, unjust enrichment, and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”) and various other state consumer protection statutes.

    Defendants filed a motion to exclude the testimony of Kirk Felix, Plaintiffs’ expert on used car pricing trends.

    Automotive Industry Expert Witness

    Kirk Felix spent the first 13 years of his career managing the service and parts departments of Honda, Acura, and Toyota dealerships; from 1999 until his 2022 retirement, Felix served as a moderator and consultant at NCM Associates, Inc., where he facilitated meetings—called 20 Groups—for cohorts of non-competing dealerships to “discuss industry trends and best practices for operating efficient, profitable dealerships.”

    Over the course of those two decades, those discussions included over 300 dealerships across 45 states, including Chevrolet, Chrysler, Ford, Nissan, and Honda dealers, two fixed operations director groups, and an Independent Auto Auction group.

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

    Discussion by the Court

    A. Felix’s Qualifications

    State Farm first argued that Felix is unqualified to “opine on the pricing and selling of used vehicles, including topics like dealerships’ pricing strategies, consumers’ negotiating behavior, and the Autosource methodology at issue in this case.”

    Felix has never sold a used car, and he admitted that he has never been involved in the used car business. Though Felix occasionally gave information about a car’s reconditioning costs to those individuals at dealerships in charge of used car pricing (during his work from 1986 to 1999), he has never been involved in pricing used vehicles for sale, nor has he managed those who do.

    Here, Felix’s experience comes from the conversations he facilitated at NCM. Yet Felix’s experience with NCM involved meetings only three times a year. Felix’s involvement included putting together the agenda for the meeting after consulting with the group’s executive committee, and then running the meetings alongside the chairman, but he did not take notes at the meetings. It is hard to square this experience with the scope of Plaintiffs’ proposed testimony, which seeks to authoritatively describe the process for pricing and selling used automobiles.

    Basically, Felix admitted to not knowing the number of car dealerships in any state, what percentage of used car dealerships in any state market themselves as no haggle dealerships, what percentage of dealerships in any state will negotiate on the price of a used car, or how many car dealerships have eliminated negotiation.

    Felix never conducted a survey of dealers regarding their pricing practices ahead of this litigation, though he says a survey probably happened during his time at NCM, even if he cannot recall when or what the results were.

    Upon a review of the full record, the Court agreed that Felix has not demonstrated the requisite qualifications.

    B. Reliability of Felix’s Testimony

    Here, Felix has freely admitted that his methodology for opining on the used car pricing and sales market consists of reflecting upon memories of his experiences with NCM.

    Yet NCM’s moderation topics were not even specific to used cars. Rather, the business model involved gathering approximately 20 dealers representing the same manufacturer (i.e. Toyota), compiling 5-7-page financial statements from each of them, and then consolidating the information into a 30-plus page financial comparison document to then discuss in a meeting.

    Even if used cars were discussed at every meeting as a “critical part” of the car business, as Felix testifies, general reference to thrice-annual meetings does not demonstrate the “soundness and care” expected of experts on the facts of the case at hand.

    Felix’s planned testimony is that “vehicles are priced to market and used car dealers do not deviate down from the advertised cash price with limited exceptions.” In depositions, he has estimated that this is the case around 90 percent of the time. This, however, is not a view he can back up by data but rather, it is a product of the information he heard “over 23 years with NCM clients.”

    While it is true, as Plaintiffs contended, that Felix need not commission a study himself to testify to how often vehicles are sold for less than listed price, Felix must still explain how he reaches his conclusions.

    The same goes for Felix’s assertion that Autosource and used car dealers use the same methods to assess the value of used automobiles other than State Farm’s use of the TNA.  The fact that these inputs share labels, however, does not necessarily equate to the inputs themselves  mirroring one another. 

    With an eye for sufficiency and application of methodology, the Court found that Felix’s testimony misses the mark.

    Held

    The Court granted Defendants’ motion to exclude the testimony of Kirk Felix.

    Key Takeaway

    Plaintiffs have not shown by a preponderance of the evidence that Felix’s testimony is “based on sufficient facts or data” and “the product of reliable principles and methods.” In other words, the Court found that Felix’s application of his methodology to the circumstances of the case have not met the Rule 702 threshold, in accordance with the 2023 amendments.

    Please refer to the blog previously published about this case:

    Appraisal Expert’s Testimony on Deceptiveness Excluded

    Case Details:

    Case Caption: Williams V. State Farm Mutual Automobile Insurance Company
    Docket Number: 1:22cv1422
    Court Name: United States District Court, Illinois Northern
    Order Date: March 10, 2026
  • Economics Expert Partly Allowed to Opine on Corrective Advertising Damages

    Economics Expert Partly Allowed to Opine on Corrective Advertising Damages

    This is a trademark infringement and unfair competition action arising from the parties’ respective uses of the word “IMPOSSIBLE.” Impossible Foods is the widely known creator of the Impossible Burger and other plant-based meat products. Defendants/Counter-Plaintiffs Joel Runyon and Impossible X LLC (collectively, “Impossible LLC”) are an individual and his corporate entity who, over the past decade, have been involved in a variety of ventures—including search engine optimization, social media influencing, and fitness and dieting advice—all loosely affiliated with the word Impossible.

    Impossible Foods filed two motions in limine to exclude the testimony of Dr. Jennifer Vanderhart and Dr. Robert Palmatier, while Impossible LLC sought to exclude portions of John Plumpe’s rebuttal testimony.

    Economics Expert Witness

    Dr. Jennifer Vanderhart is an economist and the managing director of a consulting firm providing services in connection with litigation, regulatory proceedings, and valuation analyses. She holds a Ph.D. in economics from Texas A&M University, where she previously taught in the Department of Economics and the Department of Management in industrial organization, public economics, and econometrics.

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

    Marketing Expert Witness

    Dr. Robert W. Palmatier is a Professor of Marketing at the University of Washington’s Foster School of Business, where he has taught since 2007. He holds a Ph.D. in marketing from the University of Missouri and has held a variety of academic and industrial positions, with a focus on marketing strategy, consumer loyalty and decisionmaking., and methodological approaches for analyzing marketing data.

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

    Valuation Expert Witness

    John G. Plumpe is the managing director of an economic consulting firm and holds a Master of Science in Mechanical Engineering from the University of Illinois and an M.B.A. from the University of Chicago Booth School of Business. Plumpe’s practice focuses on the analysis of damages, monetary relief, and valuation issues in intellectual property litigation.

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

    Discussion by the Court

    Jennifer Vanderhart

    Vanderhart is Impossible LLC’s damages expert and has prepared a report in which she opined that Impossible LLC is entitled to corrective advertising damages for Impossible Foods’ use of its IMPOSSIBLE-formative marks in connection with its swag and cookbook.

    In her report, Vanderhart opined that corrective advertising damages may be calculated by multiplying Impossible Foods’ swag and cookbook-related expenses by three to five, based on Palmatier’s opinion that “Impossible LLC would likely have to spend 3 to 5 times as much to correct false or unwanted brand associations as was originally spent by Impossible Foods to create these associations.”

    During the relevant time period, she calculated that “Impossible Foods has spent an estimated $623,280 in ‘swag’-related expenses” and “has spent an estimated $194,722 in cookbook-related expenses,” opining that “total corrective advertising damages are in the range of $2,454,006 to $4,090,010.”

    Impossible Foods filed a motion to exclude Vanderhart’s opinions on three grounds. To begin with, Impossible Foods argued that she failed to assess any actual harm to the value of Impossible LLC’s asserted marks and has “made no attempt to calculate lost sales caused by the alleged infringement.” Second, Impossible Foods argued that she did not properly measure advertising costs because her calculations are based on production costs rather than advertising expenditures and include the cost of producing items that are not accused of infringing Impossible LLC’s marks. Finally, Impossible Foods argued that Vanderhart improperly relied on Palmatier’s three-to-five multiplier, which itself is “derived from a single, irrelevant study.”

    Analysis

    The Court agreed with Impossible Foods that Vanderhart neglects to quantify the harm to Impossible LLC’s asserted trademarks by Impossible Foods’ alleged infringement or to even estimate their value in the first instance. However, this does not require that her testimony be excluded at theDaubert stage, where the focus is on her qualifications and the reliability of her methodology.

    Impossible Foods also argued that Vanderhart’s testimony is unreliable because her calculations include expenses by Impossible Foods that are unrelated to advertising expenditures for allegedly infringing products. 

    The Court explained that the touchstone of corrective advertising damages is to restore the harm to the value of the asserted trademark which includes, among other things, marketing and advertising costs.

    As to Impossible Foods’ swag-related costs, Vanderhart was not required to separate marketing and advertising expenses from production costs because she explained that the swag items were themselves the advertising. Because the swag items were not offered for sale and were produced solely for promotional purposes, it would be reasonable to infer that the items themselves were the advertisements. That said, because Impossible LLC has not accused all swag items (e.g., water bottles, stickers, etc.) of infringement—and does not and cannot contend that the asserted trademarks even include those items—the Court agreed with Impossible Foods that her calculations are overinclusive. 

    While the Court will not exclude Vanderhart’s testimony in this respect, Impossible Foods will be permitted to impeach the correctness of her valuations through cross-examination and other evidence.

    As to Impossible Foods’ cookbook-related costs, Vanderhart’s testimony is excluded, since she relies exclusively on the cost of producing the cookbooks and does not include any expenses at all for marketing and advertising.

    Robert Palmatier

    Impossible Foods sought to only preclude Palmatier from testifying that corrective advertising damages may be calculated by applying a three-to-five multiplier to Impossible Foods’ marketing expenditures on the ground that this opinion is based “on a single academic paper,” namely, “a decades old study involving college students and radio advertising for mouthwash finding that three corrective impressions were required to correct one misimpression.”

    According to Impossible Foods, there is just “too great an analytical gap” between Palmatier’s multiplier opinion and the data upon which he relies.

    The Court did not read Palmatier’s multiplier opinion as narrowly as Impossible Foods did. Far from relying on a single outdated study, Palmatier explained why any harms to Impossible LLC’s brand equity caused by Impossible Foods’ alleged infringement would be “magnified” due to the “similarity of wordmarks due to other points of similarity,” “high level of marketing spend,” and “increased use of broadly-focused marketing.”

    Palmatier explained that linkages to unwanted and negative associations are more impactful and difficult to eliminate than positive associations and that these negative associations are particularly strong “due to the synergistic interaction” of multiple “magnifying factors” identifying industry practices of responding to such associations with targeted rehabilitative advertising.

    In articulating his reasoning, Palmatier relied on a variety of case studies and analyses and particularly pointed out how his multiplier opinion is based on the application of fundamental, well-accepted marketing principles.
    The Court accordingly agreed with Impossible LLC that Palmatier’s multiplier opinion is sufficiently supported to survive Impossible Foods’ Daubert challenge.

    John Plumpe

    Plumpe is Impossible Foods’ damages expert and has prepared a rebuttal report in which he argued that Vanderhart’s calculations are not a reliable estimate of corrective advertising damages.

    Plumpe asserted that Vanderhart’s damages calculation is speculative, unsupported, and would result in a windfall to Impossible LLC due to her failure to analyze the value of Impossible LLC’s marks, failure to account for Impossible LLC’s low revenues and marketing expenses, and “the lack of evidence of actual financial harm to [Impossible LLC] in the range contemplated by the prospective correcting advertising damages award.”

    Impossible LLC challenged Plumpe’s testimony on two primary grounds. First, Impossible LLC argued that several of his opinions (specifically, as to consumer confusion, corrective advertising, and search rankings) fell outside of the scope of his expertise as an economist and professional damages expert and are either irrelevant or unhelpful to the jury. Second, Impossible LLC argued that portions of Plumpe’s expert report included improper legal opinions that are not proper subjects of expert testimony.

    Despite Impossible LLC’s attempts to cast Plumpe’s testimony as venturing outside of his area of expertise (e.g., by improperly opining on “causation” and other “noneconomic” issues), the Court found that his opinions are properly limited to evaluating whether the damages claimed by Impossible LLC can be economically attributed to Impossible Foods’ alleged infringement. Specifically, Plumpe’s rebuttal report sets forth his economic reasoning and analysis for his conclusion that Vanderhart’s opinions failed to capture injuries plausibly attributable to Impossible Foods’ swag and cookbook by failing to account for external market forces.

    Regarding Impossible LLC’s argument that Plumpe improperly offered legal conclusions, the Court disagreed. It is permissible for Plumpe to explain the framework and underlying principles to orient the jury.

    Held

    • The Court granted in part and denied in part Impossible Foods’ motion in limine to exclude the testimony of Dr. Jennifer Vanderhart.
    • The Court denied Impossible Foods’ motion in limine to exclude the testimony of Dr. Robert Palmatier.
    • The Court denied Impossible LLC’s motion in limine to exclude the testimony of John Plumpe.

    Key Takeaway

    While it is true that Impossible LLC will not be able to recover corrective advertising damages without showing harm to its allegedly infringed marks, the Court is not aware of any authority suggesting that a damages expert must provide all the evidence required to support a damages award for their testimony to be admissible.

    Nor is the Court persuaded by Impossible Foods’ suggestion that Vanderhart’s testimony is “unreliable and unhelpful” absent a valuation of Impossible LLC’s asserted marks, since the jury is permitted to consider her testimony together with any other evidence presented at trial in considering the ultimate issue whether Impossible LLC’s marks have been harmed by Impossible Foods’ alleged infringement.

    Case Details:

    Case Caption: Impossible Foods Inc. V. Impossible X LLC
    Docket Number: 5:21cv2419
    Court Name: United States District Court, California Northern
    Order Date: February 26, 2026
  • Human Resources Expert Was Not Allowed to Opine on an Employer’s Obligations

    Human Resources Expert Was Not Allowed to Opine on an Employer’s Obligations

    Plaintiff Andrew Brown alleged that CSX Transportation, Inc. violated his rights under the Family and Medical Leave Act (FMLA) by subjecting him to CSX’s attendance policy and by suspending and ultimately terminating him for taking FMLA leave.

    Brown hired Beth De Lima, a “Human Resource / Vocational Rehabilitation consultant,” to offer an expert opinion on whether CSX “met Human Resources Industry Standards of Care regarding the implementation of FMLA.” CSX filed a motion to exclude the testimony of De Lima.

    Human Resources Expert Witness

    Beth B. De Lima is an expert in the HR aspects of employment regulation compliance, litigation, and vocational rehabilitation.

    She is nationally certified as a Senior Professional in Human Resources with a state-specific certification in California (SPHR-CA) by the Society for Human Resource Management (SHRM), a SHRM Senior Certified Professional (SHRM- SCP) and has been appointed to sit on the Employee Health, Safety, and Security Special Expertise Panel.

    Want to know more about the challenges Beth De Lima has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    De Lima opined that CSX’s directive to curb and discourage and interfere with an employee’s usage of FMLA led to mass layoffs of seasoned, tenured, decade long employees as a result of the organization’s failure to ensure they implement HR Industry Standards of Care for a federally protected employee leave benefit known as the FMLA.

    A. Opinions Unrelated to Whether CSX Had a Good Faith Belief that Brown Dishonestly Used FMLA Leave During the 2017-2018 Holidays

    To begin with, the Court noted that De Lima’s report included opinions on matters that were never at issue or are no longer at issue in this case, including CSX’s attendance policy and the American with Disabilities Act (ADA). CSX argued that these opinions should be excluded as the Court has “dismissed the attendance policy claims” and as “there is no ADA claim in this case.”  

    CSX also argued that De Lima’s testimony on the “implications of CSX’s policies regarding misuse of FMLA leave on weekends and to extend time off” should be excluded as they are irrelevant to the issue in this case — whether CSX had a good-faith belief that Brown dishonestly used FMLA leave over Christmas 2017 and New Year’s 2018.

    The Court agreed that De Lima’s opinions regarding the attendance policy and the ADA should be excluded.

    However, the Court did not agree that De Lima’s testimony about CSX’s policies regarding FMLA leave on weekends and to extend time off are irrelevant. Although Brown was terminated because of FMLA misuse over the 2017-2018 end-of-year holidays, CSX’s decision to charge Brown with FMLA misuse during that period was partially based on the fact that CSX previously had warned Brown that he was improperly using FMLA leave either before or after his rest days and on weekends. Under the circumstances, it cannot be said that De Lima’s testimony about the implications of CSX’s policies regarding FMLA use on weekends and to extend time off would not logically advance a material aspect of Brown’s case. Indeed, this evidence is probative of whether CSX had a good faith belief that Brown dishonestly used FMLA leave over the 2017-2018 holidays.

    B. Reliability

    CSX argued that De Lima’s opinions and testimony are not reliable because: (1) De Lima did not cite specific sources of the “HR Industry Standards” she purports to apply, (2) her testimony is not based on sufficient facts or data, (3) she made broad conclusions from unrepresentative samples, and (4) her report contains many errors and mischaracterized the record.

    De Lima did not cite specific sources of the “HR Industry Standards” she purports to apply

    Contrary to CSX’s contention, De Lima identified the standards set forth by Society for Human Resource Management (SHRM) as the source of the “HR Industry Standards” on which she relies.

    CSX further argued that to the extent De Lima “claimed that she relied on her experience to develop these supposed standards, her testimony and opinions are unreliable because she failed to explain ‘how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.’”

    De Lima explained in her report that she applied generally accepted HR standards as set forth by SHRM, “an organization founded in 1948” that “has over 285,000 members across more than 165 countries and more than 575 chapters in the United States.”

    De Lima’s testimony is not based on sufficient facts or data

    CSX noted that De Lima asserted there was a clear management directive to curb, discourage, and interfere with employees’ use of FMLA, but he did not cite anything specific.

    However, CSX did not claim that this portion of the report is an impermissible characterization of the evidence.

    CSX also argued that De Lima made other unsupported assertions that certain documents implicitly or explicitly embody nefarious principles, which they plainly do not. Although CSX may disagree with De Lima’s interpretation of the letter and the disciplinary policy, CSX has not demonstrated that it is unreliable.

    CSX further argued that De Lima’s testimony is unreliable as “there is simply too great an analytical gap between the data and the opinion proffered.” Although De Lima references CSX’s handling of discipline of two other employees, a review of De Lima’s report demonstrated that she did not base her opinions on CSX’s handling of the other cases.

    Therefore, CSX has not demonstrated that there “is too great an analytical gap between the data and the opinion proffered.”

    De Lima’s testimony is unreliable because her report is replete with errors and mischaracterizes the record

    CSX claimed that the report inaccurately stated that “CSX’s FMLA policy says that ‘if FMLA is utilized in a manner [CSX] deems to impact the staffing of the organization’ then the ‘approved use of FMLA leave will be documented as negative attendance’” under CSX’s attendance policy.

    CSX identified three other mischaracterizations in De Lima’s report. First, CSX stated that De Lima grossly mischaracterized the record by asserting that, “in 2016, CSX’s HR Department informed employees that ‘utilizing FMLA leave would be reported as misuse,’” when the letter actually stated that “using FMLA leave to avoid certain work assignments, to extend time off . . ., to be off on a holiday, the weekend, or to avoid working overtime is considered not only misuse, but fraudulent use of this federally required benefit.”

    Second, CSX contended that De Lima’s statement that “CSX made no effort to determine if the FMLA use was consistent with the already approved medical certificates for the impacted employees” and never requested documentation from employees “to clarify the validity of the FMLA usage” conflicts with the testimony of Jolanda Johnson, Manager, Benefits–FMLA, who testified that, before charging employees, she reviewed the medical reasons for leave to determine whether they clearly explained a need for leave over the holidays.

    Third, CSX challenged De Lima’s statement that “‘as an alternative to complying with the FMLA process for curing, CSX is simply ignoring the need to determine if the need for FMLA leave can be confirmed by curing the medical certificate and just moves on with the termination.’”

    None of the alleged factual discrepancies or mischaracterizations warrant excluding De Lima’s opinions and testimony. The Court found De Lima’s methodology sufficiently reliable. The alleged flaws in De Lima’s methodology raised by CSX would be addressed during cross-examination.

    C. Assistance to the Trier of Fact

    Next, CSX argued that De Lima’s opinions—off-base critiques of whether CSX engaged in a “curing process,” adequately trained its managers, and abided by “HR industry standards”—are not relevant to the question of whether Brown was subjected to unlawful retaliation.

    From De Lima’s testimony that CSX’s investigation fell below HR industry standards, a jury could infer that CSX did not have a good faith belief that Brown dishonestly took FMLA leave over the 2017-2018 end-of-year holidays and that CSX terminated Brown in retaliation for taking FMLA leave during that period. Accordingly, De Lima’s opinion on whether CSX complied with industry standards in investigating suspected FMLA misuse would be helpful to the jury.

    However, De Lima’s report consisted of many legal conclusions. De Lima frequently opined or implied that CSX’s policies and procedures regarding suspected FMLA misuse violate the FMLA. De Lima also offered her interpretation of an employer’s obligations under the FMLA. 

    The Court agreed with CSX that it would be improper to allow De Lima to testify about these issues at trial as they are legal conclusions. However, De Lima may still opine that CSX did not comply with industry standards in investigating suspected FMLA misuse as that is not a legal conclusion.

    CSX also challenged De Lima’s statement that the “focus in the Investigations seems to be the impact of the employee’s FMLA leave on the operations of the railroad’s workforce availability when employees are utilizing FMLA.” The Court is not persuaded.

    The challenged portions of De Lima’s report may factor into the jury’s determination on whether CSX had a good faith belief that Brown misused FMLA leave, but they do not merely tell the jury what result to reach. Accordingly, this is not a basis for excluding De Lima’s opinions and testimony.

    D. Rule 403

    In the alternative, CSX argued that De Lima’s testimony should be excluded pursuant to Rule 403 because it is unfairly prejudicial, confuses the issues, and would mislead the jury. CSX contended that De Lima’s report contains language that is “inflammatory” and “over-the-top.” CSX further argued that De Lima’s “confused report” is not relevant as it “misunderstands both the applicable regulation and the issues in this case.” However, as De Lima is expected to testify at trial, the Court held that her “opinions will be presented via her sworn testimony, and her report may be used to refresh her recollection or for impeachment, but the report itself is hearsay and is not admissible.”

    Held

    The Court granted in part and denied in part Defendant CSX Transportation, Inc.’s motion to exclude the testimony of Beth De Lima.

    Key Takeaway

    As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.

    Case Details:

    Case Caption: Brown V. CSX Transportation,, Inc.
    Docket Number: 8:24cv2777
    Court Name: United States District Court for the Middle District of Florida, Tampa Division
    Order Date: February 24, 2026
  • Forensic Engineering Expert Allowed to Opine on Tree Impact Damage

    Forensic Engineering Expert Allowed to Opine on Tree Impact Damage

    This matter arises out of an insurance claim filed by Plaintiffs, Grayson Smith
    and Savannah Smith, related to a tree impact that caused damage to their property located at 2811 Pebblewood Drive, Valdosta, Georgia 31602 on August 30, 2023.

    Auto-Owners retained expert Brent Boyd, a forensic engineer, to analyze the damage to the property. Plaintiffs’ arguments largely center on reliability. They argued that Boyd spent too little time conducting his inspection, employed a flawed and haphazard methodology, and did not adequately consider the findings of other engineers.

    Forensic Engineering Expert Witness

    Brent A. Boyd is a licensed engineer who received his engineering degree from the University of Alabama in 2010. He has inspected numerous properties affected by tree impacts and conducted evaluations of the damage thereto, including whether the structure had laterally shifted.

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

    Discussion by the Court

    Boyd determined that there was tree impact damage to the rear and left elevations of the property, specifically the rear sunroom and adjacent living room, which included shifting isolated portions of framing elements in that area.

    i. Experience and Qualifications

    Plaintiffs took issue with the fact Boyd had been licensed for less than four years at the time of the inspection at issue. They also stated that nearly all of his professional time is spent “looking at damaged roofs for insurance companies” and he was retained by Defendant 918 times.

    The Plaintiffs argued that Boyd lacked the necessary qualifications, noting that he did not hold a graduate degree, has never presented outside his own company, and has not published any work in the field of engineering.

    Firstly, the Court was unpersuaded that four years is too short a time to be qualified. Boyd’s degree and licensure indicated sufficient qualifications. If, as Plaintiffs maintained, their experts are better experienced than Boyd, that information is properly put before the jury at trial, not the Court in a motion to exclude. Secondly, Boyd has experience conducting evaluations of properties affected by tree impacts, like the instant case, including assessing whether the structure had laterally shifted, meaning a foundational issue related to racking. Third, and finally, the fact Boyd has worked for Defendant 918 times cuts against Plaintiffs’ arguments. 918 claim evaluations are a significant amount of experience. If even a minority of those claims considered the issue of racking, Boyd would still be qualified to testify.

    ii. Reliability

    Plaintiffs stated that Boyd was present at their property for about ninety minutes and never agreed to return for a more detailed inspection. Defendant noted that Boyd’s time spent at Plaintiffs’ property allowed him to inspect “all walls under the main area of impact” and publish a 73-page, peer-reviewed engineering report.

    Plaintiffs also argued that choosing which studs to measure by conducting a visual inspection is a “haphazard sampling” and “not a thorough, scientific approach,” which left “the vast majority of walls unmeasured and uninspected in any meaningful way.” This argument goes to the comprehensiveness of Boyd’s inspection, not its reliability.

    Plaintiffs’ critique of Boyd’s methodology focuses on his use of his bubble level. They argued that using a one-foot bubble level on a nine-foot wall, not insisting the bubble be centered between the level’s marked lines to declare a stud to be plumb, and his own data rendered his expert opinion unreliable.

    Defendants responded that it is not about the length of the level, but rather ensuring “the engineer uses it in accordance with proper scientific procedures.” The Court declared that Boyd’s choice of level is not disqualifying, particularly given his assertion he used it in compliance with proper scientific procedures.

    Plaintiffs argued that Boyd did not adequately consider the findings of other engineers because his findings disagreed with the reports of Plaintiffs’ experts and he did not re-evaluate Plaintiffs’ property after reading the disagreeing reports.

    At trial over a contested matter such as this one, experts are bound to disagree. Existence of disagreement neither disqualifies an expert nor renders him unreliable. And a refusal to change his findings or return to the property following the receipt of a disagreeing report did not render Boyd’s original findings unreliable.

    Held

    The Court denied Plaintiffs’ motion to exclude the testimony of Brent A. Boyd. 

    Key Takeaway

    An expert’s method need not be perfect, nor must he apply it perfectly. That is, a minor flaw in an expert’s reasoning or slight modification of an otherwise reliable method will not render an expert’s opinion per se inadmissible.

    Case Details:

    Case Caption: Smith V. Auto-Owners Insurance Company
    Docket Number: 7:24cv83
    Court Name: United States District Court, Georgia Middle
    Order Date: February 13, 2026
  • Emergency Medicine Expert Was Allowed to Opine on Medical Management

    Emergency Medicine Expert Was Allowed to Opine on Medical Management

    On September 27, 2022, Plaintiffs Aislyn Batista Acevedo, Ina Ruth Kessler Krugman, and minor A.D.S.B. (collectively, “Plaintiffs”) filed the instant suit on behalf of the late David Suárez (“Suárez”) against Ashford Presbyterian Hospital (“Presby”) and various other Defendants (collectively, “Defendants”).

    From September 29, 2021, until his death on October 23, 2021, Suárez was hospitalized at Presby and Doctors’ Center Hospital Bayamón (“Doctors’”). Plaintiffs alleged that, during the time that Suárez was hospitalized, Defendants failed to properly screen and treat Suárez in violation of the Emergency Medical Treatment and Labor Act (“EMTALA”).

    Plaintiffs also alleged that all Defendants are liable under Puerto Rico law for negligence and medical malpractice. To prove their claims, Plaintiffs intended to introduce at trial the expert testimony of Dr. Dainius A. Drukteinis regarding medical management. Defendants moved the Court to rule the proffered testimony of Drukteinis inadmissible.

    Emergency Medicine Expert Witness

    Dr. Dainius Albertas Drukteinis has been practicing emergency medicine for over twenty years.

    He graduated from Cornell Medical School in 2004. Drukteinis completed his emergency medicine training at NYU/Bellevue Hospital in New York City, finishing a four-year residency in 2008. He has served as an attending emergency medicine physician since 2008. He has previously served as an Assistant Professor of Emergency Medicine with the University of South Florida.

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

    Discussion by the Court

    Drukteinis provides a detailed account of his medical opinion that the physicians and staff at both Presby and Doctors’ breached the prevailing standard of care by failing to perform an MRCP or ERCP procedure, conducting poor transitions of care between medical providers during the time that Suárez was hospitalized, and transferring Suárez to another hospital facility when there was no valid reason to do so.

    A. The expert report of Drukteinis reliably identifies a standard of care applicable to Defendants

    Defendants argued that the expert witness opinion of Drukteinis is lacking in relevance and reliability because it assigned the same standards of care as to all seventeen medical practitioners sued by Plaintiffs: “notwithstanding the gamut of specialties involved in this case,” Defendants argued, “Drukteinis’ report did not identify the specific standard of care applicable to each physician, specialist, nurse practitioner, professional service corporation, or hospital.”

    Defendants’ argument is belied by the content of the report, which expressly sets forth three standards of care broadly applicable to all physicians who were responsible for the care of Suárez.

    It is therefore unclear why Defendants would argue that the expert report is deficient; indeed, the report specifically identified each Defendant physician in an account of the “chain of responsibility,” and identified three specific standards of care applicable to all of them.

    Moreover, Defendants identified no legal authority holding that, in multi-defendant medical malpractice cases, an expert report must set forth its conclusions regarding the standard of care with particularity as to each respective Defendant. Nor did Defendants explain why the fact that the conclusions adopted by Drukteinis are broadly applicable to various Defendants would render those opinions any less reliable or relevant under Rule 702.

    B. Defendants failed to identify any additional legal grounds for the exclusion of the proffered testimony of Drukteinis

    Next, Defendants moved the Court to exclude Drukteinis as a witness for “failing to provide opinions regarding causation vis-à-vis each Physician Defendant.”

    Defendants were incorrect when they claimed that an expert witness in a medical malpractice case “must” articulate an opinion regarding causation in order to testify.

    Drukteinis is not a party to this case and did not bear the burden to prove anything; instead, in civil litigation it is the Plaintiff who bears the burden to prove all three elements of a negligence claim. Accordingly, the Court declined to exclude the testimony of Drukteinis from evidence.

    Held

    The Court denied Defendants’ motion in limine seeking a ruling that the proffered testimony of Dr. Dainius Drukteinis was inadmissible.

    Key Takeaway

    Defendants fundamentally misapprehended the purpose of Rule 702 and the role of expert witnesses in federal court.

    Even assuming for the sake of argument that Defendants are correct that Drukteinis provided no opinion regarding causation in his expert witness report — a conclusion that the Court did not adopt — Defendants failed to explain why that would render his proffered testimony relating to the duty and breach elements of Plaintiffs’ negligence claim unreliable. The Court found that it would not.

    Case Details:

    Case Caption: Batista-Acevedo V. Presbyterian Community Hospital, Inc.
    Docket Number: 3:22cv1468
    Court Name: United States District Court, Puerto Rico
    Order Date: February 10, 2026
  • Hospitality Expert’s Testimony on Lost Investments Excluded

    Hospitality Expert’s Testimony on Lost Investments Excluded

    In this landlord-tenant dispute, Defendant Gator Flower Mound, LLC (“Gator”) asked the Court to exclude the damages testimony of Alan Someck, the expert witness designated by Plaintiff Arch & Eng, LLC (“Z Grill” or “Plaintiff”), as irrelevant and unreliable.

    Z Grill alleged economic injury due to problems with the premises it leased from Gator, the landlord. In December 2003, Plaintiff’s and Gator’s predecessors entered into a lease for a commercial premises located at the Marketplace at Flower Mound shopping center (the “2003 Lease” for the “Premises”). On March 02, 2016, Gator and Plaintiff executed an Assignment and Assumption of Lease, through which Plaintiff became the tenant at, and occupied, the Premises (the “2016 Assignment”).

    In 2019, despite Plaintiff having complained of problems with the Premises since 2016, Plaintiff elected to enter into a Third Amendment to Lease, extending the 2003 Lease through January 31, 2025. Plaintiff abandoned the Premises in or around January 2024, and brought suit that same month, alleging that roof leaks and an odor had persisted through the entirety of its tenancy, and had caused Plaintiff to suffer economic harm.

    Hospitality Expert Witness

    Alan Someck has decades of experience in the hospitality industry as an owner, operator, consultant, and teacher. He has also served as a full-time Management Instructor at the Institute of Culinary Education in New York City and previously served as an Adjunct Professor of Hospitality Management at the New York Institute of Technology.

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

    Discussion by the Court

    In his expert report, Someck posits that the presence of bad odors in and around Defendant’s leased property contributed significantly to Plaintiff’s purported loss of profits and investment capital.

    I. Lost Profits

    Defendant raised two arguments against Someck’s interpretation of Plaintiff’s proposed lost profits damages. First, Defendant averred that the leasing agreement between the parties prohibited recovery of consequential lost profits, rendering Someck’s opinion on the subject irrelevant. Second, Defendant claimed that Someck failed to deduct actual profits from claimed lost profits, rendering his opinion unreliable.

    The Court previously held that Plaintiff may potentially recover its lost profits under the Contract if it proves those profits are a “direct,” as opposed to a “consequential,” result of Defendant’s wrongful acts. The Court also held that Plaintiff may potentially recover its lost profits under certain tort causes of action. Thus, Someck’s opinion is not irrelevant on these grounds. On the contrary, Someck’s opinion will likely be crucial in helping Plaintiff carry its burden at trial.

    Defendant’s second argument is unpersuasive, as its claim that “Someck fails to deduct actual profits from claimed lost profits” is directly countered by the fact that Someck has since revised and reduced the applicable projected profits by $150,730.00 “based on the correct assumption . . . that actual profits needed to be subtracted from projected profits to get the corrected lost profits.” Because Someck has fixed the alleged “foundational flaw” in his methodology, the Court found that Someck’s testimony on Plaintiff’s recovery for lost profits is not unreliable.

    II. Lost Investments

    Defendant argued that Someck’s proposed testimony on Plaintiff’s “lost investments” should be excluded because of its irrelevance and unreliability.

    Defendant argued that Someck has failed to connect any damage amount to any act or omission taken by Defendant and has instead merely combined all of Plaintiff’s business expenses over the years and offered it as proof of “lost investments.” The Court agreed, and found that Someck’s opinion on “lost investments” is impermissibly general under the facts of this case.

    Someck did not offer any reasoning or methodology to explain how his definition of lost investments constitutes a compensable injury as opposed to an unrelated expense. Nor did Someck offer insight as to the source of these expenses. For instance, he did not identify which portions of the “lost investments” arose as a pecuniary loss from Defendant’s alleged negligent misrepresentation as opposed to Defendant’s alleged fraudulent inducement.

    Second, Someck’s opinion is unreliable. Defendant has argued and provided sufficient evidence that Plaintiff’s “lost investment” damages constitute an impermissible attempt to recover for expenses borne by third parties. Someck’s testimony simply does not permit the Court to accurately distinguish between injuries incurred by Plaintiff and the injuries incurred by illusory “plaintiffs.” Neither Someck nor Plaintiff have clarified their interpretation of “lost investment” damages on this issue.

    The Court excluded Someck’s expert opinion testimony as to Plaintiff’s lost investments.

    Held

    The Court granted in part and denied in part Defendant Gator Flower Mound, LLC’s motion to exclude the testimony of Alan Someck.

    Key Takeaway

    Relevance depends upon whether the expert’s reasoning or methodology properly can be applied to the facts in issue. The Court does not need help to add up numbers on a page. As a result, Someck’s bare assumption, combined with a receipt of gross expenses, is not sufficiently relevant to render his opinion admissible at trial.

    Case Details:

    Case Caption: Arch & Eng, LLC V. Gator Flower Mound, LLC
    Docket Number: 4:24cv1068
    Court Name: United States District Court, Texas Eastern
    Order Date: February 05, 2026