Plaintiffs Nathan Campos and Janet Garvey (collectively, “Plaintiffs”) brought this putative class action alleging damages from being “deceived into making in-game purchases of deceptively marketed in-game items in the mobile application games Big Fish Casino and Jackpot Magic slots (collectively, “the Games”) and lost those purchases to the Games’ unlawful and unfair casino-style games of chance.”
Defendants Big Fish Games, Inc. and Product Madness, Inc. (collectively, “Defendants”) filed a motion to exclude the testimony of Plaintiff’s expert Muhammad Khan.
Financial Analysis Expert Witness
Muhammad Anwar Khan has over 20 years of experience as a financial analyst and is currently the Head of Investment at Building Communities Initiative, a real estate developer located in Australia.
He analyzes investment opportunities for hotels, resorts, and government affordable housing projects,” and he has prior experience with investment banks doing “comprehensive financial analysis in a variety of industries.” Also, he has provided expert testimony in two prior cases, which involved banking and real estate under Islamic law.
First, Defendants challenged Khan’s qualifications as an expert opining on damages models in this case. Plaintiffs contended that Kahn “is undoubtedly qualified as a financial analyst and accountant” to provide an expert opinion for the “very limited purpose” on “whether certain damages models can be measured for class members using Defendants’ financial data.”
The Court agreed with Defendants. Plaintiffs offered no evidence of specific training, experience, or specialized knowledge Khan has that is relevant to his damages models examination in this case. Merely stating that Khan is “undoubtedly qualified” because he works as a “financial analyst and accountant” is conclusory and insufficient to qualify Khan as an expert witness.
Furthermore, Khan stating in his deposition that his expert declaration was “all drafted by” Plaintiffs’ counsel raised serious credibility and reliability questions that Plaintiffs did not respond to.
The Court found that Plaintiffs have failed to show that Khan is qualified as an expert in this case.
Held
The Court granted the Defendants’ motion to exclude the testimony of Muhammad Khan.
Key Takeaway:
Plaintiffs are not required to show that Khan has the exact specialized expertise to answer the issues here, but Plaintiffs do have the burden to show by a preponderance of the evidence that he is qualified based on his knowledge, skill, experience, training, and/or education for this Court to find him an expert with a reliable or appreciably helpful opinion for a jury.
Defendant Howard Keith Hall is the former County Attorney of Pike County, Kentucky. Hall is a current Pike County Circuit Court Judge. The United States charged Hall with two counts of mail fraud and one count of theft of government funds. The charges stem from an alleged scheme in which Hall hired Attorney A1 as an Assistant County Attorney and paid this attorney approximately $440,587 in state salary and benefits despite the attorney performing little to no work for the Pike County Attorney’s Office (“PCAO”).
While Attorney A served as an Assistant County Attorney, Hall participated in the private practice of law at Attorney A’s law firm and received various payments described as “Distributions” totaling $505,900. The United States alleged that Hall committed mail fraud by signing and mailing false payroll certifications indicating that Attorney A fulfilled his duties as a part time assistant county attorney despite doing no work.
The United States filed this motion to exclude in response to Hall’s disclosure noticing Harold Mac Johns, the former County Attorney of Todd County. Hall’s disclosure anticipated that Johns will testify and offer opinions on several topics, including the various responsibilities of a county attorney’s office; the full-time and part-time system used in Kentucky for county attorney offices; the statutory duties of an assistant county attorney; the ability of county attorneys and assistant county attorneys to participate in the private practice of law; the private relationship between Hall and Attorney A; the particular allegations of the Indictment; and other topics or issues that may arise from the government’s case-in-chief.
United States filed a Daubert motion to exclude the testimony of Harold Mac Johns.
Law and Legal Expert Witness
Harold Mac Johns served as the Todd County Attorney for 28 years from January 1990 until September 2018. He served on the Prosecutors Advisory Council for seven years from 1997 until 2004.
The United States raised four arguments in support of its motion to exclude the testimony of Johns. First, the government charged that the Court should exclude Johns’ testimony as untimely. Second, that the Court should exclude Johns’ testimony for making inadequate disclosures. Third, that Johns’ testimony does not meet any provision of Rule 702. Fourth, that Johns’ testimony invaded the province of the Court and jury. Indirectly, the government also argued that Johns did not meet the definition of a lay opinion witness under Fed. R. Evid. 701.
The United States argued that the Court should exclude the noticed expert testimony because it is (1) untimely and because (2) the notice failed to state what Johns’ opinion will be on several of the subjects.
Late Notice
Hall’s initial appearance and arraignment took place on May 16, 2025, before Magistrate Judge Matthew A. Stinnett. Per the Court’s order, Hall should have provided the government with notice of expert testimony on or before May 26, 2025. This Court continued Hall’s trial to November 10, 2025, after holding a telephonic scheduling question with counsel for Hall and the United States. Hall produced the disclosure noticing Johns on October 14, 2025, roughly one month before the start of the jury trial on November 07, 2025.
Basically, Hall submitted this disclosure several weeks before the start of trial, giving the United States ample notice of an anticipated witness. Hall did not submit this witness in an effort to throw sand into the gears of the judicial process, but to provide context and testimony about the inner workings of a county attorney’s office, an issue that cuts to the heart of the case. The Court does not find that Hall acted in bad faith, and the reasons for the delay appear to be related to the case’s complexity and the accompanying number of motions filings, hearings, and orders. Nor is the Court convinced that the late notice of this witness prejudices the government.
The government has had time to raise its motion to exclude with this Court. None of Johns’ proposed testimony raises novel issues or arguments that the government is unfamiliar with as it pertains to Hall’s defense. This is particularly true where any prejudice to the government can be cured with a less severe course of action.
Inadequate Disclosures
The Court turned next to the government’s second procedural argument: that Johns’ testimony should be excluded for inadequate disclosures.
Hall’s disclosure included Johns’ qualifications as the Todd County Attorney, a member of the Prosecutors Advisory Council, and as a private practitioner. The disclosure listed several topics, but the government argued that “the disclosure failed to address what Johns’ opinion would be on several of the subjects noticed.” Several of the topics did not include an opinion statement. Thus, the Court faces a situation where Hall has included opinion statements as to some topics but has not provided opinion statements for others.
The Court is not convinced that the deficiencies require the exclusion of Johns’ entire testimony. The government has not claimed in its motion that the lack of detail affects their ability to counter the evidence. Excluding the witness is not the only remedy available to the Court since the government is not burdened by an “undue surprise” that prevents their “adequate opportunity to prepare” to prepare for trial.
The Court may appropriately set boundaries on Johns’ admissible testimony and issue other orders that are “just under the circumstances.”
Rule 702
Hall submitted that Johns can provide testimony about how an elected county attorney runs their office and the functions of the county attorneys in general.
The government argued that “the number of years someone has served as a county attorney does not translate to facts or data that this Court can evaluate for reliability under Rule 702 or Daubert.”
However, the Court was convinced that Johns’ 28 years as a county prosecutor and seven years as part of the Prosecutors Advisory Council support the reliability determination that he is qualified to opine on the ways in which a Kentucky county attorney runs their office.
Moreover, Johns’ testimony would assist the jury in understanding the inner workings of a county attorney’s office, the procedures by which county attorneys hire staff, and the ways in which the individual attorney’s offices work with the Prosecutors Advisory Council and other offices within the Commonwealth’s state government.
Legal Conclusions
Johns can testify as to the statutory duties of an assistant county attorney but under no circumstances could Johns offer an opinion as to whether Hall’s actions were legal or sanctioned under the laws of the Commonwealth of Kentucky.
Johns similarly cannot testify as to whether there are or are not legal requirements for assistant county attorneys to work a minimum number of hours. He cannot testify to Hall’s willfulness to commit any act or that Hall did or did not have the requisite intent to defraud.
Plainly, the Court held that much of Johns’ proposed testimony violated the prohibition against a witness testifying about legal requirements or interpretations of statute. By way of example, Johns can testify to the day-to-day operations of a county attorney’s office. Johns can testify that it is common to hire assistant county attorneys and describe how that process works. But Johns cannot testify that Hall’s acts were legal or sanctioned by Johns’ own interpretation of Kentucky’s statutes. This is not an exhaustive analysis of what Johns may or may not say on the witness stand. But this much is clear — any testimony suggesting that Hall’s actions were legal or appropriate under the laws of the Commonwealth or that the interpretation of the statutes requires a certain outcome is inadmissible.
The bulk of Johns’ testimony as to the functions of a county attorney’s office will fall under Rule 702 because Johns never served in the Pike County Attorney’s office. Moreover, it is not clear from the record before the Court that Johns was ever personally involved in any of the facts at issue in this case.
Held
The Court granted in part and denied in part the United States’ motion to exclude the testimony of Harold Mac Johns.
Key Takeaway:
Johns’ extensive experience as a county prosecutor and his personal knowledge as to the responsibilities, duties, and discretion of a county attorney meet both the reliability and relevance elements required by Rule 702.
Plaintiff Shelby Ross asserted a Fourth Amendment unreasonable search and seizure claim against Defendant Jeremy Finney. In addition, Plaintiff asserted state law claims of assault and battery against Finney. Against Tipton County, Plaintiff averred “negligent failure to protect”/“negligent failure to prevent” claims under Tennessee law.
Ross hired Roy G. Taylor as an expert witness in areas such as police use-of-force policies, de-escalation techniques, and traffic stops.
Defendants argued that Taylor should be excluded as an expert because (1) his methods are not reliable under Daubert and (2) his report includes inadmissible legal conclusions about whether Finney had probable cause and reasonable suspicion to support his actions.
Law Enforcement Expert Witness
Roy Garvin Taylor is a former law enforcement officer and current adjunct professor with over forty years of experience “in various federal, state, local, and private Police Chief positions.” His areas of expertise include nationwide police procedures around traffic stops, use of force, and de-escalation techniques.
Defendants first argued that, under Daubert, Taylor “does not reliably employ principles and methods to base his conclusions.” Daubert’s factors ask “whether a method is testable, whether it has been subjected to peer review, the rate of error associated with the methodology, and whether the method is generally accepted within the scientific community.” Taylor’s opinions did not satisfy these factors, according to Defendants, because Taylor “generally relies upon his experience, education, and training in law enforcement.”
However, it is unclear what additional methodology Defendants would ask a police procedure expert to possess. After all, the methods of an expert in police procedure are not the kinds of methods that are regularly tested, peer reviewed, or accepted by the scientific community. As Ross pointed out, “Daubert is only of limited help in assessing technical or experiential expertise.”
Taylor’s qualifications include forty years of law enforcement and police training experience. Although his opinions fall outside the realm of science, the Court held that his personal knowledge and experience are appropriate substitutes to support a finding of reliability. Defendants will have a chance to challenge Taylor’s opinion through cross-examination and presentation of contrary evidence at trial, but exclusion is not the right path.
II. Inadmissible Legal Conclusions
Defendants next asserted that Taylor opined in his Initial Report about whether Finney had probable cause or reasonable suspicion to engage in certain actions on May 11, 2023. For her part, Ross conceded that some of the opinions in Taylor’s report “cross the line into ultimate questions of fact.”
Ross acknowledged that, to the extent Taylor used “phrases like ‘objectively unreasonable’ as a shorthand for something like ‘consistent with national standards,’ he should be required to use more precise language at trial.”
The Court concluded that Taylor cannot offer legal conclusions on questions including, but not limited to, reasonable suspicion, probable cause, whether conduct was lawful or unlawful, whether exigent circumstances existed, or whether a use of force constituted assault and battery. However, he may offer his opinions that do not include these terms and conclusions.
III. Supplemental Report
After Taylor submitted his initial report, and after he received the report of Defendants’ expert along with a copy of Tipton County’s police policies, Taylor submitted the supplemental report.
Defendants argued that, “at a minimum,” this supplemental report should be excluded because Taylor failed to include in his initial report “a complete statement of all opinions the witness will express and the basis and reasons for them.”
Instead, according to Defendants, Taylor later issued a supplemental report merely “as an attempt to bolster former opinions, provide totally new opinions, or combat the opinions of Defendants’ expert.”
Defendants further argued that Taylor’s analysis of the Tipton County police policies is irrelevant to this case, since there is no constitutional claim based on those policies nor any excessive force claim.
Because Taylor did not receive the police policies until after the Initial Report was written, Ross contended that he had a valid reason to supplement his earlier opinions. Ross further argued that the Tipton County use-of-force policies are still relevant to this case.
The Court deemed Taylor’s use-of-force analysis, drawn from the Tipton County police policies, relevant to this case, even though no Fourth Amendment excessive force claim is at issue, because the analysis of the state law assault and battery claim mirrors that of an excessive force claim.
Held
The Court granted in part and denied in part the Defendants’ motion to exclude the testimony of Plaintiff’s expert Roy Taylor.
Key Takeaway:
For nonscientific expertise such as Taylor’s, the relevant reliability concerns may focus on personal knowledge or experience. It helps that Taylor’s qualifications include forty years of law enforcement and police training experience.
Plaintiffs Josepha Austin, Robin Cruz, Gordana Pobric, and Jennifer Haselman brought this action claiming physical, cognitive, and emotional harm resulting from their exposure to polychlorinated biphenyls (“PCBs”).
Defendants Monsanto Company, Bayer CropScience, L.P., Solutia, Inc., and Pharmacia L.L.C. (collectively “Monsanto”) filed a motion to exclude the testimony of Kevin Coghlan.
Plaintiffs intended to call Coghlan to testify as an expert about PCB levels at Burlington High School.
Industrial Hygiene Expert Witness
Kevin Coghlan is an industrial hygienist with 35 years of experience assessing environmental issues in workplaces. That experience has included work with PCBs.
He has personally been involved in, or directed, over thirty projects involving the identification, assessment, remediation, risk assessment, and mitigation of PCBs.
Plaintiffs were exposed to PCBs while at Burlington High School in Burlington, Vermont, and have suffered adverse consequences as a result. Plaintiffs have retained Coghlan as an expert to testify about their indoor exposure to PCBs at the high school.
In this case, Coghlan reviewed test results gathered by Fuss & O’Neill (“F&O”), the Burlington School District’s environmental consultant. Those tests reportedly revealed PCBs “above the Screening Level of 15 nanograms per cubic meter (ng/m3) established by the Vermont Department of Health (VTDH).
Based on his review of the available data, Coghlan concluded that Plaintiffs were exposed to PCB levels that approached or exceeded the Vermont School Action Level for adults, and in some cases exceeded the higher threshold Vermont Immediate Action Level, as well as the EPA’s Evaluation Level for adults.
Analysis
Incomplete Sampling Data
Monsanto argued that Coghlan’s methodology was flawed because the sampling data he used was allegedly incomplete. An expert report submitted by Monsanto states that the air sampling locations chosen by F&O “were selected based on potential worst-case air concentration scenarios (i.e. locations were based on rooms with or adjacent to rooms with building components containing >50 mg/kg PCBs).” Monsanto thus claimed that the samples were non-random and likely overstated the PCB air concentration in any given building.
Plaintiffs conceded that F&O’s testing was performed to address concerns about existing PCB levels. They also noted that the testing was conducted in consultation with the EPA Region 1 PCB Coordinator, the Vermont Department of Health, and the Vermont Department of Conservation. While coordination with those agencies dispels any concern about intentional sampling bias, the method of sampling (collecting samples near known sources of PCBs) did suggest that the results might overstate the level of contamination. That possibility, however, can be raised and explored during cross-examination, and went to the weight of Coghlan’s testimony rather than its reliability.
Use of Data Samples
Monsanto next criticized Coghlan’s use of data samples to extrapolate values for entire buildings. Monsanto argued that, for example, there is no evidence that Plaintiff Austin spent any time in the rooms where PCB levels were measured.
Plaintiffs submitted that the practice of averaging PCB concentrations within a school is endorsed by the EPA, which itself has conducted building studies employing averages and medians. Plaintiffs also contend that there is no mandatory guidance for “a certain amount or location of air or dust sampling” in school buildings. While Monsanto and its experts may argue that the use of averages is not adequate to prove individual exposure levels, those arguments again concerned to the weight of Coghlan’s analysis rather than its admissibility.
Body Burden of PCBs
Monsanto’s final issue is that Coghlan’s report discusses “body burden” of PCBs resulting from exposure but offers no “body burden” calculations. Monsanto also contended that Coghlan, as an industrial hygienist, lacked the expertise to offer any “body burden” opinions. It appeared from Coghlan’s report, however, that he is using the term “body burden” in a nontechnical way. As Monsanto pointed out, Coghlan offered no calculations of either dose or impact. His report instead made the assertion that increased exposure to PCBs could heighten a person’s chances of being negatively impacted. The Court held that Coghlan is qualified to make that assertion, and Monsanto will be allowed to question the extent of his knowledge, and the limitations of his opinion, with respect to PCB “body burden.”
Held
The Court denied the Defendants’ motion to exclude the testimony of Kevin Coghlan.
Key Takeaway:
Monsanto is critical of Coghlan’s methodologies and data. Monsanto noted that for the individual assessments, Coghlan used building averages rather than results from the rooms in which Plaintiffs actually spent their time. Also, Monsanto submitted that F&O tested areas where there were already concerns about PCB levels, thus rendering the testing non-random and unrepresentative of PCB levels generally. Finally, Monsanto argued that Coghlan is not a toxicologist and is therefore not qualified to testify about PCB “body burden.”
However, the data is representative of their PCB exposures and Coghlan’s use of the term “body burden” is merely referencing the level of contact with PCBs. In other words, Monsanto’s criticisms pertain to the weight of Coghlan’s conclusions rather than their admissibility.
Case Details:
Case Caption:
Austin V. Monsanto Co.
Docket Number:
2:23cv272
Court Name:
United States District Court for the District of Vermont
Plaintiff The Upper Deck Company (“Upper Deck”) sued its former contractor, Ryan Miller (“Miller”), and its competitor, Ravensburger North America Inc. (“Ravensburger”), for claims arising from the alleged copying of Upper Deck’s new trading card game (“TCG”), Rush of Ikorr.
Miller filed motions to exclude Plaintiff’s expert witnesses Dr. Roberto J. Cavazos and Dr. Ian Bogost while Plaintiff filed a motion to exclude Miller’s expert witness James E. Pampinella.
Gaming Expert Witness
Dr. Ian Bogost serves as a professor of Film and Media Studies as well as Computer Science and Engineering at Washington University in St. Louis and enjoys international recognition “as a key figure in game design and game studies.”
Dr. Roberto J. Cavazos is an economics professor with thirty years of experience. He has worked in a number of areas including lost earnings, business damages, labor management relations for global multinationals.
James E. Pampinella CPA, CFF, CLP has been providing consultation services in the area of complex commercial litigation and valuation services for over 30 years, specializing in intellectual property strategic consulting and disputes, including matters involving copyrighted works.
Miller’s Motion to Exclude Plaintiff’s Expert Bogost
Bogost is qualified to testify about TCGs
Miller sought to exclude Bogost’s testimony, arguing that he is not qualified to opine on TCGs, that his methods are unreliable, and that he offered improper legal opinions.
The Court noted that Bogost’s CV has a marked video game slant. However, his CV also contains several indications of general game expertise: throughout his career, Bogost has written several publications on games and game theory generally, taught multiple university courses on game design, and presented at several conferences on games.
Given Bogost’s ample experience in the field of games, game design, and game review—and because his opinions are based on specialized knowledge other than science—the Court found that Bogost met the minimum bar set by Rule 702 to qualify as an expert on TCGs.
Bogost’s methodology is sufficiently reliable to offer expert opinions about the two TCGs
Miller also challenged the reliability of Bogost’s methodology. Bogost first obtained two sets of Lorcana starter decks, which included “ready to play” decks, a booster pack of cards, a tabletop play mat, printed rules, and “a set of cardboard chits.” Bogost next considered what version of Rush of Ikorr to use in his analysis. After reviewing case materials, Bogost obtained the materials Miller submitted to Upper Deck prior to his departure (“Version 2.6”), then played both games. After playing the games, Bogost made observations about each game, and formed opinions as to particular “bundles of expression” drawing on his experience in game design.
Miller took issue with how Bogost played Version 2.6 because he did not use overlays, and did not play in team mode. But as Upper Deck pointed out, Bogost could not recall whether he used the overlays and Rush of Ikorr can be played as a single-player or team-based game.
Bogost initially made determinations as to which versions of the games to obtain based on the particular facts in the record, then proceeded to play the games, and draw conclusions based on his knowledge of game mechanics.
Miller also moved to exclude Section E of Bogost’s report. In Section E, Bogost first explained that “rough-looking” materials, such as Version 2.6, still represent a substantially complete work product in the game design process. While the completeness of Version 2.6 was relevant to the copyright claim, the state of that work product when Miller left Upper Deck and whether it was sufficiently complete or valuable may also be relevant to Plaintiff’s contract claim.
Accordingly, the Court denied Miller’s motion to exclude Bogost.
B. Defendant’s Motion to Exclude Upper Deck’s Copyright Damages Expert Dr. Roberto Cavazos
In this case, Cavazos provided his opinion on copyright damages, estimating economic harm by analyzing the “market value” of rights allegedly taken, and by calculating Defendant Ravensburger’s profits allegedly derived from infringement of Upper Deck’s TCG.
Cavazos testified that his methods arise under copyright law, and were based upon his understanding from counsel of the applicable measure of copyright damages.
Cavazos does not attempt to quantify any alleged breach of contract by Miller, nor assign value to Miller’s work on Version 2.6 in the context of the profits from the Lorcana game, nor does it seem he would be qualified to do so. Rather, the royalty rate that Cavazos calculated considered only Ravensburger’s total global revenues and profits from sales of Lorcana, and did not attempt to apportion any value to Miller’s alleged disclosures of confidential information.
Cavazos admitted that he was not an expert in game design, did not identify the intellectual property at issue, and did not provide a basis for his one-third opinion, beyond that it “stands to reason” that some people would buy the game because of the underlying game design, not just because of the use of Disney IP.
The Court held that Cavazos’s opinions are no longer relevant to the issues in this case, and to the extent that they could be, he is not qualified to provide them.
C. Plaintiff’s Motion to Exclude Defense Damages Expert James Pampinella
With regard to Upper Deck’s general objection to Pampinella’s use of the costs approach, Upper Deck acknowledged that the method is one of three that is accepted by economic literature. Thus, Upper Deck’s objection to Pampinella’s decision to rely solely upon the costs approach concerned the weight rather than admissibility.
Upper Deck also took issue with Pampinella’s results under the costs approach, arguing that “it is illogical and unreliable for Pampinella to assert that there are no actual damages.” While Pampinella found no actual damages as to the alleged conduct of Ravensburger and Miller, he also concluded that Upper Deck could have suffered economic damages of up to $39,000—the amount paid to Miller under his contracts with Upper Deck.
The Court is also unpersuaded that Pampinella’s lack of expertise in the gaming industry damages renders his opinion inadmissible for the same reason it found Bogost’s lack of specialized TCGs experience not to be dispositive.
Held
The Court denied Miller’s motion to exclude Dr. Ian Bogost’s testimony.
The Court denied Upper Deck’s motion to exclude James E. Pampinella’s testimony.
The Court granted Miller’s motion to exclude Dr. Roberto Cavazos’ testimony.
Key Takeaway:
It is true that the Daubert standard can be more difficult to apply where “expert testimony is ‘experience-based’ rather than ‘science-based.’ But here, Bogost obtained the materials Miller submitted to Upper Deck prior to his departure (“Version 2.6”), then played both games. After playing the games, Bogost made observations about each game, and formed opinions as to particular “bundles of expression” drawing on his experience in game design.
Plaintiff Calltrol Corporation (“Plaintiff”) initiated this action on October 6, 2018, against LoxySoft AB and LoxySoft Inc. (together, “Defendants”), alleging breach of contract, tortious interference with prospective economic benefit, unfair competition, false and deceptive practices.
Plaintiff sold call center software, hardware products, and related support services. LoxySoft Inc. is a wholly owned subsidiary of LoxySoft AB. In March of 2002, Plaintiff entered into an agreement (the “Reseller Agreement”) with LoxySoft AB that granted LoxySoft AB a license to market and resell certain call center products for which Plaintiff was a licensed distributor. LoxySoft AB agreed to purchase call center software products, software developer kits, and related support services from Plaintiff.
The Reseller Agreement (“RA”) stated that “[d]uring the term of this Agreement” LoxySoft AB “will not directly or knowingly indirectly participate in the development or commercialization of software products competitive to the [Plaintiff’s] Products.” The RA also provides “an initial term of two (2) years” and “thereafter automatically renewed for successive one (1) year periods (each a “Renewal Period”) unless earlier terminated in accordance with the terms” therein, which included “written notice” to Plaintiff. Plaintiff alleged that Defendants began marketing and selling their own call center products and services (“Competing Products”) to Plaintiff’s customers, directly competing with the products and services they previously purchased and resold from Plaintiff.
Plaintiff further asserted that Defendants failed to provide written notice of their intent to terminate the RA.
To refute Plaintiff’s claims, Defendants offered the declaration of their purported expert, Regis J. Bates Jr. Plaintiff submitted a motion to strike the expert report of Bates.
Telecommunications Expert Witness
Regis J. Bates Jr. has over 50 years of experience in the telecommunications systems, call center products, and predictive dialers. He is the founder of a full-service consulting and training firm specializing in telecommunications and computer convergence, has authored numerous books on telecommunications technologies—including Voice and Data Communications Handbook for McGraw-Hill—and served as a telecommunications manager (or in an equivalent role) for over 14 years across four organizations.
In his report, Bates averred that LoxySoft replaced Calltrol’s technology with publicly available tools, wrote and did not develop proprietary switching platforms or predictive dialers, and did not replicate Plaintiff’s Application Programming Interface (“API”). LoxySoft accessed only the limited code permitted under the RA. He further asserted that Calltrol’s product was increasingly obsolete and prone to failure, which made it commercially unreasonable for LoxySoft to continue aggressively marketing its product. Bates concluded his report by opining that LoxySoft did not misappropriate Calltrol’s trade secrets or reverse engineer its product.
Plaintiff sought to strike Bates’ opinion on the above-mentioned topics, arguing that Bates is “uniquely unqualified” to testify on the parties’ technologies.
The Court is not persuaded by Plaintiff’s arguments and found Bates’ qualifications are sufficient to allow his opinion on the parties’ call center technologies, including predictive dialers and related software. However, Bates is not qualified to opine on economics or business matters. The Court likewise found Bates unqualified to opine on contractual obligations, including Defendants’ “best efforts” under the RA.
Aside from serving as an expert in only two breach-of-contract disputes, Bates is not a contractual expert, and contract interpretation is not a proper subject for an expert to opine on.
In sum, neither Bates’ “skills, experience, training, nor education” provide him with specialized knowledge regarding a business’ profitability and viability, contractual interpretation—including a party’s “best efforts”—or the nature of the business relationship between two parties.
Because Bates lacked the requisite expertise in economics and business, and expert opinion is unnecessary for contract interpretation, the Court struck portions of Bates’ report addressing Calltrol and LoxySoft’s business relationship, Calltrol’s profitability, and LoxySoft’s “best efforts” under the RA.
B. Reliability of Bates’ Expert Opinion
The Court concluded that Bates’ analysis is sufficiently reliable under Rule 702‘s flexible standards to permit his opinion on the parties’ call center technologies, including predictive dialers and related software.
First, Bates conducted a detailed breakdown of the predictive dialer capabilities included in the RA between the parties, using diagrams to illustrate the configurations of LoxySoft’s system when integrated with Calltrol’s software and the operability of Calltrol’s platform itself. He also presented a second diagram to detail LoxySoft’s model change in response to advancements in the call center industry, and a third diagram to highlight this broader industry shift away from old call center technologies to cloud-based services. Bates then explained how LoxySoft built its system on a publicly available algorithm and an open-source communications framework, rather than relying on Calltrol’s proprietary API or source code.
Finally, Bates reviewed Calltrol’s public website, along with the deposition testimony and affidavits from Calltrol employees, to demonstrate the obsolescence of Calltrol’s product, that prompted LoxySoft to transition to a more advanced internet-based platform.
While Bates arguably could have done more to analyze the parties’ call center software and could have provided more support for the conclusions he reached, the Court will not strike his opinion on those grounds.
C. Relevance of Bates’ Expert Opinion
Bates’ report details how LoxySoft used publicly available tools and technology, including an open-source communication framework, and confirms that LoxySoft did not have access to “any of the source code for the Calltrol products.”
This directly refutes Plaintiff’s claim that LoxySoft misappropriated Calltrol’s proprietary information to develop a competing or derivative product. Bates further details technical differences between Calltrol’s product and the technologies used by Defendants, demonstrating that Defendants’ development reflected “industry advancements, not competition.”
Because Bates’ report directly addresses the conduct alleged in the Complaint and provides clear technical analysis, its probative value is high and substantially outweighs any minimal risk of unfair prejudice, confusion, delay, or the jury being misled under Rule 403. Thus, the Court found Bates’ report—excluding areas outside of the scope of his expertise—is sufficiently relevant and admissible.
Held
The Court granted in part and denied in part the Plaintiff’s motion to strike the report of Regis J. Bates Jr.
Key Takeaway:
Any such shortcomings in Bates’ methodology go to the weight of his opinion, not its admissibility. Furthermore, because Bates’ report is based on his years of experience rather than formulaic testing or methodology, the Court will not strike his report for failing to meet the Daubert factors.
In conclusion, the Court found that Bates applied a reasoned, experience-based methodology consistent with Rule 702’s standards, rendering his analysis and technical opinions sufficiently reliable for the jury’s consideration.
Case Details:
Case Caption:
Calltrol Corporation V. Loxysoft AB
Docket Number:
7:18cv9026
Court Name:
United States District Court for the Southern District of New York
This case concerns a personal injury. On July 5, 2021, Plaintiff Cline Cockburn was employed by AmSpec Services, LLC as a petrochemical inspector performing work for Marathon Petroleum Company, LP aboard in rem Defendant the M/V San Roberto, a vessel owned and operated by Defendant Buffalo Marine Service, Inc. (“Buffalo Marine”).
At the time, the San Roberto was moored at a dock facility in Mt. Airy, Louisiana, that was owned by Apex Oil Company, Inc. Cockburn was injured while disembarking from the San Roberto when the gangway leading from the barge to the dock “gave way.” On July 5, 2022, Cockburn filed this suit against Apex, Buffalo Marine, and the San Roberto, in rem, and amended it on June 21, 2023, alleging negligence claims.
In April 2022, nearly nine months after the accident, Cockburn began treatment with Dr. Alexis M. Waguespack, an orthopedic surgeon.
Plaintiff Cline Cockburn filed a motion in limine to exclude evidence of prior alleged acts of malpractice and credentialing records related to Waguespack while Defendants Buffalo Marine Service, Inc. and Apex filed a motion in limine to exclude Waguespack’s testimony.
Both Buffalo Marine and Apex filed a motion in limine to exclude the testimony of lifecare planner Jordan Frankel.
Orthopedic Surgery Expert Witness
Dr. Alexis Mayoral Waguespack has been performing orthopedic spinal surgery since 1998. She attended medical school at Louisiana State University School of Medicine, did her residency at LSU and completed a fellowship in spine surgery at the San Francisco Spine Institute in California.
Jordan Frankel earned his Master of Health Sciences in Rehabilitation Counseling degree from Louisiana State University Health and Sciences Center. Frankel is a Licensed Rehabilitation Counselor in the State of Louisiana, and has national certifications as a Certified Rehabilitation Counselor and a Certified Life Care Planner.
He is a member of the International Association of Rehabilitation Professionals. Frankel has testified in federal court in the fields of Vocational Rehabilitation and Life Care Planning.
Buffalo Marine and Apex argued that Waguespack’s testimony should be excluded to the extent she may offer expert opinions on medical causation or necessity of treatment, or testify in any way as an expert, because, they say, she lacks the requisite expertise and her opinions are not reliable or based on sufficient facts or data.
Buffalo Marine and Apex contended that Waguespack lacked expertise because she let her certification with the American Board of Orthopaedic Surgery lapse from January 1, 2021, to January 15, 2023, during part of Cockburn’s treatment, which began in April 2022.
They also argued that Waguespack’s opinion—that Cockburn’s cervical symptoms and two cervical surgeries were more likely than not caused by the July 2021 incident—is unreliable, because it rests on Cockburn’s self-reported pain nine months after the incident.
Analysis
Having weighed Waguespack’s qualifications, history of treating Cockburn, and her deposition testimony against the arguments presented, the Court found that she is qualified by education and experience to render opinions as to medical necessity and causation. The opinions are reliable, considering her long career as an orthopedic surgeon and history of treating Cockburn. While the temporary lapse in Waguespack’s board certification does not make her unqualified to render the proffered opinions, it does raise questions as to her credibility and status at the time she began treating Cockburn. Therefore, the Court will not exclude such evidence.
On the other hand, evidence about medical malpractice claims made against Waguespack are not relevant and would be more prejudicial than probative, and so will not be admitted into evidence. The questions raised by Buffalo Marine and Apex regarding the reliability of Waguespack’s testimony, such as the basis for her diagnosis, causation opinion, and the necessity of future treatment, can be addressed through vigorous cross-examination and the presentation of countervailing expert testimony.
Jordan Frankel
Buffalo Marine and Apex argued that Frankel’s testimony as to the cost of future medical treatment is predicated on Waguespack’s recommendation for a cervical fusion and that such evidence should be excluded to the extent that Waguespack’s testimony is excluded.
Because the Court is not excluding Waguespack’s opinions on future treatment, it will not exclude Frankel’s opinions based on them.
Held
The Court denied Buffalo Marine and Apex’s motions in limine to exclude the testimony of Alexis Waguespack and Jordan Frankel.
Key Takeaway:
Waguespack’s temporary lapse in board certification does not mean that she lacked expertise, especially considering her long career as an orthopedic surgeon and history of treating Cockburn. However, it does raise questions as to her credibility and status at the time she began treating Cockburn.
This products liability case arises out of injuries sustained by Plaintiff Joseph Gonsoulin (“Gonsoulin”) while seated on an allegedly defective electronic motorcycle that unexpectedly took off and caused him to crash into a wall.
As a result, Gonsoulin sued both the manufacturer of the Beta Explorer— Defendant Zhejiang Apollo Sports Technology (“Apollo”)—and the bike’s American distributor—Defendant Beta USA, Inc. (“Beta USA”).
Gonsoulin’s theories of liability and the factual issues flowing from them are: (1) whether the Beta Explorer in question should have had a kill switch or a right rear foot brake, (2) whether the Beta Explorer’s throttle was overly-sensitive to the extent that it posed an unreasonably danger to its users; and (3) whether the Beta Explorer’s warnings were legible and substantively adequate.
Robin L. Simmons is a motorcycle mechanic and service manager with over forty-five years of experience in the industry. He specializes in motorcycle repair, maintenance, and safety inspections and holds technician certifications from several major brands like Kawasaki, Yamaha, and Suzuki.
He has also testified as a motorcycle expert in at least two federal cases and received nationwide awards for his mechanic training videos related to topics, including but not limited to: transmission troubleshooting and hydraulic brake systems.
Outside of his professional career, Simmons stated that he has been riding motorcycles for over 60 years, currently owns over eleven different dirt and street bikes, and holds a motorcycle endorsement on his driver’s license.
Edward L. Patterson III is a Motorcycle Safety and Operation Consultant and currently serves as the Program Manager for the Louisiana Department of Public Safety’s Motorcycle Safety, Awareness, and Operator Training Program.
In that capacity, he oversees motorcycle safety instruction statewide and was certified as a Rider Coach Trainer and Master Instructor with the Motorcycle Safety Foundation—one of the country’s leading safety resources for motorcyclists.
Patterson has developed motorcycle safety curricula and instructional manuals that have been implemented internationally in countries like Indonesia, Zamia, Malawi, etc. In addition to his role involving motorcycle safety regulations, Patterson has also frequently testified as an expert in motorcycle accident cases across the state of Louisiana for over twenty-seven years. Finally, Patterson has been personally riding motorcycles for over fifty years and has a motorcycle endorsement on his license.
James Paul Evans is a licensed Professional Engineer and a nationally-certified accident reconstructionist with a mechanical engineering degree from Texas A&M University. He has more than thirty years of mechanical experience with motor vehicles and around twenty-one years of work in accident reconstruction involving motorcycles specifically.
Evans’ work requires him to frequently conduct crash testing and assess vehicle accelerometer equipment, such as brakes, acceleration, and turn testing.
Evans has previously testified as an expert accident reconstructionist in more than 500 cases, both civil and criminal, across the country.
Simmons’ extensive background as a motorcycle mechanic, combined with the relatively simple nature of the design defect and warning issues associated with the Beta Explorer, supported the conclusion that he possessed the necessary expertise to testify at trial. Additionally, the Court found no indication in the record that the materials Simmons relied upon—such as the Beta Explorer itself and the Owner’s Manual—or the method he used to review them were unreliable for forming a proper expert opinion
Simmons employed his “decades of practical experience diagnosing, repairing, and riding motorcycles to assess how the Beta Explorer functions, what mechanical risks are present, and how its features compare to industry norms.” To the extent that Defendants dispute Simmons’ credentials, the substantive nature of his expert opinions, or the depth of his experience with electric motorcycles specifically, they may raise these issues at trial during cross-examination.
b. Edward Patterson, III
The Court found that Patterson had the necessary background and expertise in motorcycles to testify about the design defect and warning label issues involving the Beta Explorer. His broad experience in motorcycle safety directly related to the very features at issue in this case, such as the absence of a kill switch and rear brake pedal. Accordingly, the Court concluded that Patterson was clearly qualified to testify as an expert on these matters.
As for the facts, data, and methods Patterson used to prepare his expert report, the Court determined that they were more than sufficient to meet the requirements of Rule 702. He reviewed, among other things, the Beta Explorer’s warning labels, owner’s manual, and advertisements relied upon by both parties’ experts. He also examined and tested both the Beta Explorer and Apollo’s RFN Rally Pro motorcycle, and conducted a comparative analysis with other similarly situated electric motorcycles. His opinions were not based solely on experience, but also on a structured inspection, side-by-side comparisons with competing models, and hands-on operation of the product at issue.
James Evans
The Court concluded that Evans has the expertise necessary to testify regarding the Beta Explorer’s safety designs and warnings. Moreover, Evans has largely relied on the same materials as those reviewed by other experts in this case and individually conducted rigorous scientific testing on the throttle sensitivity in both the Beta Explorer and different electric motorcycles. Thus, it cannot be said that his facts and data upon which he relied or his methodology are so unreliable as to warrant a categorical exclusion of his testimony.
Indeed, as Gonsoulin notes in his opposition, Evans “applied established accident reconstruction methodologies—such as velocity-time-distance calculations and mechanical analysis of throttle behavior—to quantify the Beta Explorer’s acceleration and speed during the incident.” To the extent Defendants argued that Evans’s reconstruction report would be unhelpful to the jury, the Court patently rejected such an argument, noting that his testimony is key to Gonsoulin’s case and proposes a likely scenario on how exactly this accident occurred.
Held
The Court denied the Defendants’ Daubert motions regarding Joseph Gonsoulin’s expert witnesses, Robin Simmons, Edward Patterson III, and James Evans.
Key Takeaway:
Gonsoulin’s experts have the necessary expertise to testify and otherwise will provide valuable testimony as to the cause of the accident.
Simmons employed his decades of practical experience diagnosing, repairing, and riding motorcycles to assess how the Beta Explorer functions, what mechanical risks are present, and how its features compare to industry norms. Patterson’s opinions are based on methodical inspection, side-by-side comparisons with competing motorcycle models, and real-world operation of the product in question. As for Evans, he “applied established accident reconstruction methodologies—such as velocity-time-distance calculations and mechanical analysis of throttle behavior—to quantify the Beta Explorer’s acceleration and speed during the incident.”
Plaintiffs Timothy Scott, Patricia Gilchrist, Karen Fisher, Helen Maldonado-Valtierra, Dan Koval, Judy D. Duff, John Griffin, Kenneth Rhodes, Judy Dougherty, John Kelly, Richard Walshon, Jennifer Fryer, and Vince Carabba alleged that Defendants AT&T Inc., the AT&T Defined Benefit Plan, and AT&T Services, Inc. (collectively AT&T) have violated the Employee Retirement Income Security Act of 1974 (ERISA).
Apparently, AT&T Defined Benefit Plan (the Plan) did not calculate and disburse “Joint and Survivor Annuities” (JSA) in a manner consonant with ERISA. Plaintiffs said that the Plan failed to treat JSA and Single Life Annuity (SLA) participants in an actuarily equivalent fashion by using “mortality assumptions” that are “fifty years out of date,” which resulted in the “payment of a benefit that is less” than the JSA beneficiaries were entitled to.
In response, Defendants filed a motion to exclude the opinions of Plaintiff’s proffered expert, Ian H. Altman, under Rule 702.
Actuarial Expert Witness
Ian H. Altman is a Fellow of the Society of Actuaries and an Enrolled Actuary. He was the founding partner and manager of Altman & Cronin Benefit Consultants, which was established in 1996. His firm merged with Gallagher Benefit Services, Inc. in 2016. Since his separation from Gallagher in 2020, he has worked as an independent consulting actuary in the employee benefits field.
AT&T said that Altman’s opinions about the Plan’s conversion factors’ failure to achieve actuarially equivalent results is unreliable because his preferred methodology assertedly did not establish the “bottom” of the range of actuarially equivalent results, and the claim that his methodology is “conservative” rests on no more than ipse dixit.
However, the Court held that Altman relied on his decades of experience and reliable evidence about industry practice to opine that the Plan’s conversion factors do not generate actuarially equivalent JSA benefits because the underlying assumptions are outdated and unreasonable.
For Altman’s methodology for calculating “damages,” AT&T said that there are several discrete mistakes that render his opinion unreliable. However, Plaintiffs emphasized guidance in the Actuarial Standards of Practice (ASOP), published by the Society of Actuaries, that provided that an actuary may apply “judgmental adjustments or assumptions” where “accurate and complete [data] may not be available” so long as the use of such adjustments or assumptions is disclosed.
Altman adequately explained and disclosed the adjustments and assumptions he made when dealing with what he reasonably believed to be deficient data, and AT&T did not demonstrate those assumptions were so outlandish that no reasonable actuary would make them.
Altman also explained why, based on his experience, the pop-up benefit should not be considered, because it is a benefit separate from the JSA benefit that offers “no value to the surviving beneficiary.”
AT&T’s final objection goes to Altman’s inclusion of participants who received benefits in the form of both a partial lump sum and JSA is not grounds for exclusion, as the contention at bottom is not about his methodology’s reliability but about whether the resultant JSA benefits are “qualified” or subject to the statutory actuarial equivalency requirement despite the partial lump sum election.
Held
In conclusion, the Court denied the Defendants’ motion to exclude the opinions of Plaintiff’s proffered expert, Ian H. Altman, without prejudice to renewal at trial as to specific calculations, as the evidence and circumstances warrant.
Key Takeaway:
Altman’s opinions are grounded in evidence and sound actuarial methods and therefore will be put through the crucible of vigorous cross examination at trial.
Plaintiff Sheheryar Ahmad sued Defendant Spinnaker Insurance Co., his insurer, for breach of contract based on Defendant’s refusal to cover damages caused by frozen and burst pipes in Ahmad’s home.
The Plaintiff argued that although the insurance policy excluded coverage for damage caused by frozen pipes, his claim qualified for an exception to that exclusion because he had taken “reasonable care to maintain heat” as required by the policy.
Plaintiff’s home consumed seven thermal units of natural gas between December 14, 2022 and January 14, 2023, the period during which the pipes froze and burst. To establish that seven therms sufficed to maintain reasonable heat, Plaintiff relied on the expert testimony of Dr. Brian K. Bramel.
The Defendant, however, filed a request to exclude Bramel’s testimony regarding the home’s internal temperature at the time of the frozen pipes.
Engineering Expert Witness
Dr. Brian K. Bramel is a principal at his own engineering firm and holds undergraduate and graduate degrees in Mechanical and Civil Engineering.
He also serves as an adjunct professor in the Department of Architecture at the University of the District of Columbia.
Bramel’s report applied the Manual J calculation, a standard thermodynamics methodology generally used to size heating equipment and developed by the Air Conditioning Contractors of America (ACCA) and the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE).
In its ordinary function for equipment sizing, Manual J is used to “determine the therms necessary in order to reach a chosen temperature inside a structure.”
However, per Bramel, the methodology can be used “in reverse,” using basic algebra, to determine the interior temperature based on measurements of the “features of the subject premises” and total energy used in this context.
Bramel’s Application of the Manual J Calculation
The Manual J calculation determines “the energy required for a house based on the interior and exterior temperature differences.” A key element of the calculation is the “resistance factor” of the structural elements in Plaintiff’s home, which refers to the energy lost through the walls, floor, roof, and windows.
Under the equation, the total “energy input to the building from the gas and electric” is equal to the “thermal resistance of the assembly” multiplied by the “area” of the resistance and the difference between the outdoor and indoor temperatures.
Bramel summarized the equation as follows: Qin = U A (tinside – toutside), where Qin refers to the “energy input to the building from the gas and electric,” U refers to “thermal resistance of the [structural] assembly,” A refers to “area” of the resistance, and (tinside – toutside) refers to the temperatures inside and outside, respectively.
Reliability of Bramel’s Methodology
The Defendant contended that Bramel’s testimony should be excluded because he had inappropriately repurposed a well-established methodology—typically used for sizing heating equipment—and applied it to a completely different context. While there was no dispute that Manual J is a reliable method for determining appropriate equipment size, the Court found that the Plaintiff failed to show it was suitable for use outside of that context, particularly for calculating internal temperatures in reverse.
Bramel himself acknowledged during both his deposition and live testimony that he was unaware of any scientific or engineering publications endorsing this reverse application of the method. He claimed the approach remained reliable because it involved basic algebra applied to standard thermodynamic principles. However, the Court concluded that Bramel’s modification of the Manual J methodology significantly weakened his argument, as altering a known calculation for a novel use called into question its scientific reliability.
Bramel’s hypothesis was not only untested but, by his own admission, untestable. The Plaintiff failed to present any evidence showing that Bramel’s method had ever undergone testing. During the evidentiary hearing, when questioned about whether his methodology had been tested, Bramel merely asserted that it was valid—offering no data or studies to support that claim. Furthermore, he acknowledged that a key component of his analysis—the calculation of total “internal gains”—could not be tested, as it was based on what he described as “a reasonable guess” grounded in an “engineering assumption.”
Application of Methodology to the Facts
The Court found that Bramel’s use of the Manual J methodology failed to meet the reliability standards required under Daubert and Rule 702. It pointed to multiple instances where Bramel relied on inconsistent and unsupported assumptions, all of which significantly weakened the credibility of his testimony.
First, Bramel did not provide a clear or consistent justification for overriding Manual J’s default outdoor temperature value of 14 degrees Fahrenheit. From the beginning, he struggled to explain the meaning of the “outdoor 99% db” variable used in Manual J. During his deposition, he spent more than ten transcript pages attempting to respond to defense counsel’s questions on the topic but failed to articulate a coherent understanding. Despite this, Bramel replaced the preset value with his own figure of 33 degrees Fahrenheit, yet he was unable to offer a satisfactory explanation for making that manual override.
Second, Bramel’s report offered neither a rationale for considering the additional variable of “internal gains” in his calculation nor an explanation of how he reached his ultimate assumed value.
Third, Bramel’s assumptions about the structure of the Plaintiff’s home conflicted with the actual facts. He classified the home as “tight,” a designation in Manual J reserved for structures that are “sealed by meticulous workmanship” and exhibit the “lowest level of air leakage.” However, Bramel admitted during both his deposition and the hearing that industry standards require the use of “blower door tests” to assess a home’s tightness. He conducted no such test in this case, undermining the credibility of his classification.
Furthermore, Bramel’s analysis assumes Plaintiffs home comprises one window, despite both photographs and inspections “revealing the house had 10 times that many windows.”
Held
The Court granted Defendant’s request to exclude the testimony of Dr. Brian K. Bramel.
Key Takeaways:
If the Court, or any other experts, cannot test a critical assumption in Bramel’s methodology, then there is no “objective basis” to test the reliability of the methodology overall.
The cumulation of errors, inconsistencies, and absence of support render Bramel’s analysis entirely unreliable under Rule 702.
