Expert Witness Profiler

Tag: Reliable Methodology

  • Reliability of Homogeneous Precinct Analysis Undermined since Small Majorities provide Insufficient Data for such Analysis; Court limits the Testimony of Political Science Expert Witness amidst claims of Racially Polarized Voting

    Reliability of Homogeneous Precinct Analysis Undermined since Small Majorities provide Insufficient Data for such Analysis; Court limits the Testimony of Political Science Expert Witness amidst claims of Racially Polarized Voting

    This case concerned claims brought by Plaintiffs Miguel Coca and Alejandro Rangel-Lopez under Section 2 of the Voting Rights Act (“VRA”) and the Fourteenth Amendment’s Equal Protection Clause. Plaintiffs alleged that Defendants, the City of Dodge City and members of the Dodge City Commission, violated Section 2 by holding at-large elections for Commission seats. To support their claims at both summary judgment and trial, Plaintiffs submitted expert reports from Matthew Barreto and Rubén Martinez.

    Barreto’s qualifications as an expert in voting rights cases were undisputed, and the Court found no need to enumerate them. It was established that Barreto possessed commendable credentials, significant acclaim, and a deep immersion in the academic discourse on voting rights in the United States, particularly concerning Latino voters. He was also a coauthor of eiCompare, a software designed for analyzing election results to evaluate racially polarized voting. At the time, Barreto held a teaching position at the University of California, Los Angeles (“UCLA”). The current case originated from a class project supervised by Barreto at UCLA, where he, along with attorney Chad Dunn, co-founded the UCLA Voting Rights Project. Notably, attorneys from the UCLA Voting Rights Group, including Chad Dunn, represented Plaintiffs in the case.

    In the context of the present case, Plaintiffs relied on Barreto’s expert opinion to demonstrate that racially polarized voting existed in Dodge City, meeting the criteria outlined in the second and third Gingles factors. This reliance on Barreto’s testimony aimed to support the Plaintiffs’ claim under Section 2 of the Voting Rights Act, specifically regarding vote dilution, as established in Thornburg v. Gingles, 478 U.S. 30, 50 (1986).

    In formulating his opinion, Barreto employed homogenous precinct analysis and ecological inference analysis, considering both endogenous and exogenous elections. His ultimate conclusion was that both Hispanics and whites in Dodge City consistently voted en bloc, and the cohesive white bloc votes hindered the election of preferred Hispanic candidates.

    Barreto’s examination encompassed four Commission elections spanning from 2014 to 2021, along with an additional 20 general elections between 2014 and 2022. During the November 2022 general election, he asserted there were 11,743 registered voters across nine precincts in Dodge City, with 4,037 voters within the “three majority-Latino precincts.” However, Barreto did not specify which precincts were considered Latino-majority, nor did he provide supporting numbers or other population data for this claim. Nevertheless, data from the 2021 Commission election did indicate the three precincts with the highest Latino voter population: Precinct 3 with 59.9% Latino voters, Precinct 2 with 54.5% Latino voters, and Precinct 1 with 39.1% Latino voters.

    Plaintiff also introduced the expert opinions of Ruben Martinez, who served as the Director of the Julian Samora Research Institute at Michigan State University, focusing on supporting Latino communities in the Midwest. His scholarly work concentrated on social inequality, intergroup relations, social movements, and political power.

    Before this case, Martinez had not engaged in any research or analysis related to Kansas history, Dodge City history, the Voting Rights Act, or election systems. Additionally, he had no prior studies on the impact of at-large voting systems versus multi-district voting systems on any specific population.

    In preparation for his testimony in this case, Martinez conducted a review of various sources related to historical segregation in Dodge City. He also spent two days physically present in Dodge City, during which he informally interviewed an individual who expressed concerns about the City’s delayed efforts to pave brick streets in his neighborhood. Notably, Martinez did not take substantial notes during the meeting, could not recall the interview’s location, and did not request the individual’s name. Additionally, he spent some time driving around Dodge City, claiming the ability to distinguish between Hispanic and white neighborhoods from his car.

    The Defendants’ motion for summary judgment, integral to the case, was awaiting the Court’s decision. The focal point of the summary judgment motion was the present Motions to Exclude, wherein Defendants aimed to prevent the inclusion of Plaintiffs’ expert testimony on racially polarized voting in Dodge City and historical discrimination in the same area. Therefore, the Defendants sought to bar these reports, putting forth various grounds for exclusion. 

    Political Science Expert Witness

    Dr. Matthew A. Barreto holds a Ph.D. in Political Science from the University of California, Irvine. His doctoral studies focused on American politics, race and ethnicity in politics, and political methodology. He also holds a Master’s degree in Social Science from UC Irvine and a Bachelor’s degree in Political Science from Eastern New Mexico University. Barreto currently serves as a Professor of both Political Science and Chicana/o Studies at the University of California, Los Angeles. Additionally, he holds positions as Co-Founder and Faculty Director of the Latino Policy & Politics Initiative and the UCLA Voting Rights Project. 

    Sociology Expert Witness

    Dr. Rubén O. Martinez holds a Ph.D. in Sociology from the University of California, Riverside. He also obtained his Master’s in Sociology from Arizona State University and a Bachelor’s degree With Distinction in Behavioral Science from the University of Southern Colorado. His areas of specialization include sociological theory, social stratification, and race and ethnic relations. Ruben Martinez is a professor emeritus of sociology at Michigan State University and is also the editor of the Latinos in the United States Book series published through Michigan State University Press.

    Discussions by the Court

    Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. The Court’s responsibility is to assess the expert’s qualifications, reliability of methods, and relevance to the case. The burden lies with the party presenting the expert testimony to demonstrate admissibility. The Court has the discretion to perform its gatekeeping function under Daubert, especially in bench trials, where it has greater leeway in admitting evidence. In this case, the Court determined that a Daubert hearing was unnecessary, and it could decide the motions based on the parties’ briefs. The Court emphasized that the focus is on preventing unreliable scientific evidence from reaching the jury.

    The Defendants argued for the exclusion of Matthew Barreto’s report, contending that it was scientifically unreliable. Their objections centered on Barreto’s use of homogeneous precinct analysis and ecological inference analysis. Additionally, the Defendants asserted that Barreto exhibited bias to such an extent that his entire testimony should be excluded. The Court proceeded to address each of these arguments individually.

    First, the Defendants contended that Barreto’s homogeneous precinct analysis, or extreme case analysis, lacked sufficient data and should be excluded under Daubert. Homogeneous precinct analysis (HPA), widely referred to as “extreme case analysis”, a recognized method used by Courts in determining racial polarization, involves examining voting percentages in racially homogeneous precincts. For example: In a precinct where the voter population is predominantly Hispanic, it was suggested that the preferred candidate of Hispanic voters could be inferred if any candidate received a substantial majority of votes. This analysis is pertinent to the second and third Gingles preconditions, providing insights into whether minority and white voters cast vote in blocs. 

    Barreto’s report claims there are three majority-Latino precincts as of the November 2022 election. However, he fails to identify those precincts, share the percentage of the Latino population within, or even provide a citation for this statement. The only concrete data presented to the Court indicated that in 2021, only two precincts had a majority Latino population: Precinct 2 with 54.5% Latino voters and Precinct 3 with 59.9% Latino voters. The third-highest Latino percentage was in Precinct 1, where Latinos comprised 39.1% of the eligible voting population.

    The present motion originated from the Defendants’ argument that the small majorities in certain precincts provided insufficient data for a reliable homogeneous precinct analysis (HPA). Citing recent cases from the Eastern District of Michigan and the Eastern District of California, Defendants asserted that HPA is only reliable when the ethnic minority comprises 90% or more of the precinct’s population. In contrast, Plaintiffs, without citing any supporting cases, referred to scholarly articles, including two written by Barreto, stating that HPA applies even when a minority population is 50% or greater in a given precinct.

    The Court, upon review, found that Barreto’s HPA, based on precincts with a Latino Citizen Voting Age Population (CVAP) of less than 60% and one with a 39.1% Latino CVAP, would not be helpful to the trier of fact. The Court noted that existing case law, like, Large v. Fremont Cnty., 709 F. Supp. 2d 1176, 1197 (D. Wyo. 2010), tends to agree that HPA is unhelpful when the ethnic minority population is less than 90% in each precinct. The Court expressed uncertainty about Barreto’s reliable application of HPA principles and methods to the dataset, especially considering the absence of statistical data to assess potential demographic changes between 2021 and 2022.

    The Court observed that no precinct had a minority CVAP of 90% or greater, which aligns with the concept of HPA where the precinct’s homogeneity allows for the inference of racially polarized voting. Since there were no homogeneous precincts, the Court determined that HPA would not be helpful to the trier of fact. The Court found it implausible to consider a 60% ratio, as urged by the Plaintiff, as sufficient, stating that such a ratio would be speculative and inconsistent with HPA’s nature as an “extreme case analysis.” Consequently, the Court deemed Barreto’s HPA unreliable, asserting that it would not assist the trier of fact due to being based on insufficient facts and data. As a result, the Court granted Defendants’ Motion to exclude Barreto’s HPA analysis in this case.

    The second analysis Barreto relied on ecological inference (EI), an inferential analysis promoted by Barreto himself through the development of his eiCompare software. EI had gained broad acceptance in Courts handling vote dilution cases. However, Defendants contested Barreto’s use of this technique on three grounds: (1) the failure to include confidence intervals (margin of error); (2) inadequate data concerning endogenous elections; and (3) improper reliance on exogenous elections.

    Defendants stressed the importance of considering the known or potential rate of error in a particular scientific technique, quoting Daubert. They highlighted that, the Reference Manual on Scientific Evidence encourages the use of “confidence intervals” and other margins of error, defining the former as, “An estimate, expressed as a range, for a parameter. For estimates such as averages or rates computed from large samples, a 95% confidence interval is the range from about two standard errors below to two standard errors above the estimate. Intervals obtained this way cover the true value about 95% of the time.”

    Defendants, while not disputing the ecological inference (EI) technique or Barreto’s qualifications, contended that his EI analysis was unreliable due to the absence of confidence intervals or other margin of error analysis in his report. Although acknowledged as relevant to a Daubert analysis, Defendants couldn’t cite any voting dilution case where an expert was excluded solely for this reason. Voting rights cases generally appeared to accept that confidence intervals might be unnecessary in this context. The Court noted that discussions about experts’ use of confidence intervals typically occurred after bench trials, suggesting that the absence of confidence intervals could be addressed post-trial without implicating the Court’s gatekeeping function under Daubert. The Court concluded that Barreto’s report wasn’t inherently unreliable for lacking confidence intervals, and thus, the Court did not exclude it on this basis.

    Endogenous elections are those which involve the elected office at issue in the case at bar. In this case, Barreto referred to endogenous elections as those where citizens elected Commission members through the at-large voting system. Defendants argued that Barreto’s analysis, based on only four elections in a city with nine precincts, had an insufficient sample size to form a reliable opinion. They referenced Cisneros v. Pasadena Indep. Sch. Dist., CIVIL ACTION NO. 4:12-CV-2579 (S.D. Tex. Apr. 25, 2014), where Barreto himself testified about the challenges of limited data in endogenous elections, citing the small number of precincts as a complicating factor in analyzing voting patterns. The Court considered this argument in evaluating the reliability of Barreto’s analysis.

    The Court acknowledged the irony in Defendants’ argument about limited data in endogenous elections, given that Barreto’s most recent methodology, Bayesian Improved Surname Geocoding (“BISG”), was developed to address such situations after the Cisneros case. Plaintiffs countered by asserting that BISG was specifically designed for limited data pools, and Defendants did not respond to this claim.

    Despite the sparse data from endogenous elections, the Court was not inclined to deem four elections, nine precincts, and one polling location as legally insufficient for Barreto to draw conclusions. The Court noted that the sparsity of the data could be considered during the trial to assess the weight and credibility of Barreto’s testimony. However, at that moment, the Court declined to grant Defendants’ Motion on this ground.

    Defendants objected to Barreto’s report, particularly concerning its reliance on partisan exogenous elections, referring to elections other than the type at issue in the pending case. Barreto relied on general partisan elections in Dodge City for state and federal offices. While Courts recognize the limited probative value of analyzing exogenous elections, they also acknowledge their relevance in voting dilution cases, particularly when data on endogenous elections is limited. Defendants failed to identify a Section 2 case where a Court excluded an expert’s opinion solely due to reliance on exogenous elections.

    Barreto’s opinion did not rely solely on exogenous elections, but they served as additional support for his conclusion about racially polarized voting in Dodge City. The Court determined that any dispute between experts should be addressed at trial, where the Court could weigh the significance of this additional analysis. Consequently, the Court denied Defendants’ Motion on this ground.

    Finally, Defendants sought to exclude Barreto based on bias, contending that his involvement in the case from its origin as a class project at UCLA and the association with the UCLA Voting Rights Project raised questions about his impartiality. The Court acknowledged that expert bias goes to the weight, not the admissibility, of testimony and should be addressed through cross-examination. While recognizing the suspicious circumstances regarding Barreto’s involvement, the Court declined to bar him from testifying solely based on bias, emphasizing the lack of concrete evidence indicating that he sought employment or had preconceived notions. Therefore, the Court decided not to exclude Barreto on the grounds of bias.

    Next, the Defendants contested Rubén Martinez’s qualifications as an expert in the case, noting his lack of prior experience with Dodge City history, Kansas history, or the Voting Rights Act. Moreover, Martinez, being a sociologist and not a historian, was a matter of concern for the Defendants, given his opinions on the history of official discrimination in Dodge City and Kansas, as well as the historical background of the at-large election method in Dodge City and Kansas.

    For an expert to qualify in a particular field, they must possess skill, experience, or knowledge in that specific area, or the subject must fall within the reasonable confines of their expertise. In this case, both parties acknowledged that Martinez lacked skill, experience, or knowledge in the specific field of voting rights and Kansas history. The dispute centered on whether these issues fell within the reasonable confines of Martinez’s expertise as a political sociologist.

    The case primarily revolves around racial discrimination, particularly in a historical and sociopolitical context, which aligns with Martinez’s expertise. While Martinez lacked prior experience with Dodge City or voting rights cases, the Court noted that Defendants did not provide any analogous cases demonstrating that this specific expertise disables him to offer helpful testimony after studying Dodge City’s history for this case. Consequently, the Court denied Defendants’ Motion on these grounds.

    The majority of Defendants’ Motion highlights Martinez’s reliance on secondary sources instead of conducting his own research or possessing prior knowledge. However, Defendants did not cite any case where a Court deemed an expert opinion based solely on secondary sources inadequate as a matter of law. Federal caselaw, instead, recognizes that an expert witness can express an opinion based on hearsay sources, including secondary sources. Martinez’s heavy reliance on secondary sources was considered by the Court as affecting the persuasive value of his testimony rather than rendering it inadmissible. The Court determined that the impact of this reliance could be best assessed during the trial, and consequently, it decided not to exclude Martinez’s testimony on this basis.

    Defendants contested portions of Martinez’s report, asserting that they lacked sufficient data to support his opinion. Specifically, concerns were raised about Martinez’s personal observations made during his two-day trip to Dodge City, where he informally interviewed one person and drove around the city. For example:- Martinez opined in paragraph 3.22 that housing in Dodge City was highly segregated, based solely on his observations. During his deposition, he admitted not reviewing census data or demographic information and couldn’t explain how he visually identified racially compact housing. The Court deemed such unsupported conclusions about racially segregated housing to fall short of Daubert’s reliability standards, leading to the exclusion of the last sentence of paragraph 3.22.

    Likewise, paragraph 3.19 in Martinez’s report detailed an informal interview with a Dodge City resident from Zacatecas, Mexico, who complained about the City not paving the brick streets in his neighborhood. However, Martinez included this information without clarity on its relevance or the resident’s identity. During his deposition, Martinez acknowledged that the individual’s complaint was not evidence of official discrimination. The Court found this information irrelevant to the history of race relations in Dodge City and, as it fell outside the scope of Martinez’s testimony.  Perhaps realizing this, Plaintiffs chose not to respond to Defendants’ argument on this point. Thus, the Court excluded paragraph 3.19 in its entirety. 

    Held

    The Court issued its rulings on the motions, granting in part and denying in part both Defendants’ Motion to Exclude Matthew Barreto and Defendants’ Motion to Exclude Ruben Martinez. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    This case demonstrates important considerations regarding the admissibility of expert witness testimony. First, the qualifications of the expert must match the subject matter in the case. General expertise may be sufficient if it reasonably aligns with the issues presented. Second, the principles and methodology used by the expert must be reliable as assessed under Daubert.  

    Additionally, sample size matters when applying techniques like homogeneous precinct analysis. If the data is too limited, the results might not assist the trier of fact. However, ecological inference may produce helpful opinions even from small data sets. Experts may also rely exclusively on secondary sources, but this affects credibility. Finally, personal observations by the expert must contain adequate factual detail connecting them to an issue in the case. Conclusory or vague observations lack evidence of reliability.  

    Overall, this case shows that expert testimony requires both methodological rigor regarding the subject matter as well as factual support for any case-specific opinions. Assumptions and inferences should be clearly explained in the expert’s report. Gaps in these areas impact admissibility in Court.

  • “Unexplained” Methodology employed by Accounting Expert Witness passes Daubert Test after Court notes that merits and drawbacks of the Methodology have been discussed

    “Unexplained” Methodology employed by Accounting Expert Witness passes Daubert Test after Court notes that merits and drawbacks of the Methodology have been discussed

    Plaintiffs BRP Colleague Inc. (“BRP Colleague”) and Baldwin Krystyn Sherman Partners, LLC (“BKS”) jointly referred to as “BRP,” had initiated legal proceedings against Defendants Edward (Teddy) Gillen (“Gillen”) and Edgewood Partners Insurance Center Inc. (“EPIC”) concerning Gillen’s prior association with BRP and his subsequent employment with EPIC, a direct competitor of BRP. BRP (together with BRP Group, Inc. and its affiliated entities, collectively “BRP Group”) offers insurance, benefits, and risk management solutions for individuals and businesses across the country, with a particular focus in the Southeast. EPIC is a direct competitor of BRP. It is an insurance brokerage and consulting firm selling property and casualty insurance, employee benefits insurance and specialty program insurance, including medical malpractice insurance.

    The basis of BRP’s claims revolved around alleged violations by Gillen of the Defend Trade Secrets Act, the Georgia Trade Secrets Act, and tortious interference with contractual and business relationships. The focal point was Gillen’s departure from BRP and his purported violation of a legally binding and enforceable restrictive covenant agreement known as the Employee Covenant Agreement (“Agreement”). Plaintiffs also claimed that EPIC had tortiously interfered with contract, business relationships, and expectancies by unlawfully taking Plaintiffs’ business for itself (and Gillen) after Plaintiffs rejected EPIC’s attempt to purchase Plaintiffs’ business. Plaintiffs sought attorney’s fees from both Gillen and EPIC.  

    Gillen, a former insurance producer for BRP specializing in the sale of medical malpractice insurance policies, was accused of breaching various legal obligations and engaging in actions detrimental to BRP’s interests. Notably, BRP contended that Gillen misappropriated confidential and proprietary information, including trade secrets, during his tenure with BRP. This misappropriation was alleged to have been utilized by Gillen to illicitly solicit and service BRP’s customers on behalf of, and to the advantage of, EPIC, his current employer.

    The crux of the matter lay in Gillen’s alleged theft of confidential and proprietary information, constituting trade secrets, and the subsequent utilization of these unlawfully obtained assets to serve EPIC’s interests. BRP contended that Gillen, in defiance of his restrictive covenants and applicable laws, had engaged in the solicitation and servicing of BRP’s clients for EPIC’s benefit.  

    EPIC, according to BRP’s assertions, was not a passive beneficiary of Gillen’s actions but actively participated in and facilitated the breach of Gillen’s legal obligations to BRP. BRP accused EPIC of knowingly benefiting from Gillen’s illicit conduct and further asserted that EPIC conspired with Gillen to undermine BRP’s contractual, statutory, and common law rights. This ongoing wrongful conduct by the Defendants, BRP argued, had resulted in irreparable harm and substantial damages to BRP.

    In response to the alleged misconduct, BRP sought both preliminary and permanent injunctive relief to halt and prevent the continued harm arising from the Defendants’ actions. Additionally, BRP sought monetary damages and other available relief as a remedy for the harm caused by Gillen and EPIC’s wrongful conduct. 

    The financial aspects of the case involved BRP’s claims for lost profits and unjust enrichment damages against the Defendants. BRP, supported by expert witnesses Joseph J. Egan and Myles D. Kaluzna, estimated its lost profits (both past and future) to amount to $991,755. Furthermore, BRP’s economics experts opined that EPIC had been unjustly enriched by $710,528 through its wrongful acts. Notably, Defendants had engaged J. Lester Alexander III (“Alexander”) to counter BRP’s expert report, suggesting a contested battleground over the quantification of damages.

    Plaintiff filed an initial motion to exclude the testimony of J. Lester Alexander III which was dismissed without prejudice by the Court on account of noncompliance with the local rules. After the Plaintiff’s re-filed the motion as per the Court’s directions, the Court addressed Plaintiffs’ Motion to Exclude Expert Report and Opinions of Alexander, which sought the exclusion of Defendants’ rebuttal damages expert, Alexander, under Federal Rule of Evidence 702 and Daubert. Plaintiffs asserted two primary reasons for the exclusion: first, that Alexander’s opinions were grounded in speculation and an unexplained methodology, and second, that his testimony would not contribute to the jury’s understanding of the evidence. 

    Accounting Expert Witness

    J. Lester Alexander III B.S., C.P.A., C.F.E. is the Executive Vice President of J.S. Held LLC. He has served as the Founder and Chief Executive Officer of AEA Group. He is a former partner of PwC and the former southeastern practice leader of one of its legacy firm’s consulting practices. Alexander practiced for more than three decades, performing audit, tax, and consulting services. In recent years, he concentrated his practice in the areas of economic research, financial investigations, forensic accounting, and valuation services. He had been admitted as an expert witness and testified in Federal and state courts on a variety of financial subjects.

    Discussions by the Court

    In response to the motion to exclude Alexander’s testimony, the Court had engaged in a comprehensive analysis of the admissibility of expert testimony, applying the standards set forth in Federal Rule of Evidence 702 and the Daubert framework. The Court had begun by outlining the criteria for admitting expert testimony under Rule 702, emphasizing that an expert’s testimony should assist the trier of fact in understanding the evidence or determining a factual issue. 

    The Court had acknowledged that Rule 702 required that expert testimony be based on sufficient facts or data, be the product of reliable principles and methods, and that the expert had reliably applied those principles and methods to the facts of the case. The Court then had turned to the Eleventh Circuit’s three-part test, as articulated in City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 562 (11th Cir. 1998), which mandated that the expert must be qualified, the methodology must be sufficiently reliable, and the testimony must assist the trier of fact in understanding the evidence or determining a fact in issue. Plaintiffs alleged that Alexander’s testimony was inadmissible under both the second and the third elements of the Harcos Chemicals test.

    The Plaintiff argued that Alexander’s testimony regarding the methodology he allegedly employed in preparing his calculation of Plaintiffs’ lost profits manifested his repeated reliance on his subjective viewpoint under the cloak of purported reliance on industry standards and publications. For instance, Alexander’s report and calculation of lost profits were based on the presumption that economic damages cannot exceed the total value of the lost business, but when asked to explain the basis for this assertion, he failed to cite a source. Although he mentioned publications like “Valuation Services Practice A for Lost Profits 2020” and the “Litigation Handbook” as supporting his methods, he did not specify which parts of those publications supported the propriety of his method.

    Due to his failure to cite all the sources he used, show his calculations, or even remember the numbers he used to calculate his final figures, Alexander’s findings were impossible to duplicate, confirm, or refute.

    Alexander engaged in speculation when calculating Plaintiffs’ lost profits. In reaching his final damages conclusion, Alexander multiplied Plaintiffs’ total 2021 lost revenue by a revenue multiple of 2.03 without providing support for the assertion that the revenue multiple was more reliable than other methods of calculating damages.

    Furthermore, Alexander chose his revenue multiple by taking the median revenue multiple
    of four transactions he pulled from DealStats. One of the four transactions is from the Pittsburgh
    market, while the other three are from Florida. With no analysis or investigation for this assertion,
    Alexander stated that the Atlanta and Pittsburgh markets were on par “from the point of view of
    profitability of an insurance agency.”

    The Plaintiffs noted Alexander’s reliance on alleged comparable transactions to calculate the revenue multiple without articulating a basis for his subjective definition of a comparable transaction. Alexander failed to adequately respond when confronted with the ways in which his transactions substantively differed from the business at issue in this case.

    The Plaintiffs further accused Alexander of failing to seek out and rely on relevant data, instead making unfounded assumptions. The Plaintiffs asserted this speculative approach rendered Alexander’s methodology unreliable.

    Finally, the Plaintiffs contended Alexander’s flawed methodology would not help the jury assess the validity of the Plaintiffs’ expert’s calculations. Rather, they argued his testimony would confuse the issues and prejudice the Plaintiffs by providing a veneer of expertise without a sound analytical basis.

    In response, the Defendants argued Alexander’s methodology was reliable and his testimony would aid the jury. They stated Alexander relied on established principles of valuation science and damages calculation. The Defendants stated that any questions regarding the credibility of Alexander’s methodology were reserved for the jury. The Defendants further argued Alexander’s decades of experience in the industry provided a sufficient basis for his choices.

    The Court agreed with the Defendants and denied the motion to exclude. It found Alexander sufficiently explained his methodology during his deposition. The Court held that while Plaintiffs’ selected quotes arguably implicated Alexander’s credibility as a witness, the context of those quotes demonstrated that Alexander’s testimony was based on more than mere speculation.

    Specifically, the Court noted Alexander based his opinions on his professional training and 2006 American Institute of Certified Public Accountants’ Guide, not just common sense. It also observed Alexander used a different methodology than the Plaintiffs’ expert, calculating damages using a market-based approach instead of an income-based approach. The Court stated Alexander extensively discussed his techniques in his deposition.

    The Court concluded Alexander’s methodology was sufficiently reliable under Daubert. It also found Alexander’s testimony would be relevant in assessing damages, meeting Rule 702’s low bar for assisting the trier of fact. 

    Held

    The Court denied Plaintiffs’ Motion to Exclude Expert Report and Opinions of Defendant’s expert, J. Lester Alexander, III. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    • The Court found that Alexander was sufficiently qualified based on his training and experience as an accountant. His methodology of using a market-based approach to calculate damages was deemed reliable, even if it differed from the Plaintiff’s expert’s income-based approach.
    • The Court determined that Alexander’s testimony regarding damages calculations would be helpful to the jury in understanding the evidence and determining facts at issue in the case. Therefore, it met the relatively low threshold for relevance and assisting the trier of fact.
    • While the Plaintiffs argued Alexander’s opinions were speculative, the Court found in the full context of his deposition he provided adequate explanation of his methodology grounded in accounting standards and training. Questions about his credibility were for the jury.
    • The Court denied the motion to exclude Alexander’s testimony, finding it met the qualifications, reliability, and helpfulness requirements for expert testimony under Rule 702 and Daubert. This provides a good overview of how courts assess expert witness admissibility.
  • Court admits the testimony of Toxicology Expert Witness on account of basing her conclusions regarding the Decedent’s Comparative Fault and Intoxication on a reliable premise in Wrongful Death Suit

    Court admits the testimony of Toxicology Expert Witness on account of basing her conclusions regarding the Decedent’s Comparative Fault and Intoxication on a reliable premise in Wrongful Death Suit

    The Plaintiff, Herbert Johnson, as the Personal Representative of the Estate of Herbert Johnson III, had brought this action pursuant to the Section 768.21, Florida Statutes (the Florida Wrongful Death Act), alleging that East Coast Waffles d/b/a Waffle House (hereafter, “Waffle House”) negligently owned, controlled, managed, or maintained the premises where his son, Herbert Johnson III was shot and killed. 

    On or about January 15, 2018, Herbert Johnson III was shot to death at the Waffle House on 11749 East Colonial Drive, Orlando, Orange County, Florida. At the time of the incident, Plaintiff Herbert Johnson III was picking up takeout food from Waffle House with his friends, Rickie Calderon and Calvin Savage. During the time they were waiting for their to-go food, the Waffle House had “loud and belligerent” people inside, with one person telling another person to “come outside.” This rambunctious behavior inside the Waffle House, as described by Rickie Calderon, was confirmed by Waffle House Employees Stephen Heidenreich, Robin Marcus, and Viera Allian. After Herbert Johnson III and his friend exited the Waffle House and got into a black Camaro, Herbert Johnson III was shot and killed by Al-Jalil Byrd in the parking lot. 

    Herbert Johnson III’s body had been taken to the District Nine Medical Examiner’s Office. The medical examiner, Jennifer Park, had examined the body and determined that Herbert Johnson III’s cause of death was homicide by multiple gunshot wounds. In the toxicology report from Jennifer Park, the peripheral sample had shown .115 g/dL (grams per deciliter) of ethanol, and the vitreous blood sample had shown .102 g/dL of ethanol. Two of the Defendant’s affirmative defenses were (1) that Herbert was “comparatively at fault” for his own death because he “was under the influence of… alcohol at the time” and (2) that he was “more than [fifty] percent at fault for his… own harm” because he “was under the influence… to the extent that [his] normal faculties were impaired and/or [he] had a blood or breath alcohol level of 0.08 percent or higher.” 

    Dr. Janci Lindsay had been retained by Waffle House in her capacity as a biochemist to assess the toxicology report authored by the medical examiner and to opine whether Herbert Johnson III’s alcohol level had contributed to him being shot and killed by Al-Jalil Byrd. The Plaintiff had moved to exclude Lindsay’s opinions under Daubert, challenging her qualifications, the scientific reliability of her methodology, and the helpfulness of her opinions to the jury. 

    Toxicology Expert Witness 

    Janci Chunn Lindsay is a consulting toxicologist and full member of the Society of Toxicology. She obtained a doctoral degree in Biochemistry and Molecular Biology from the University of Texas. She has advised clients about exposure to pharmaceutical and alcohol exposure for over 17 years. Since 2006, she has been an expert witness in numerous civil and criminal cases. 

    Discussions by the Court 

    The Plaintiff had conclusorily claimed that Lindsay did not have the requisite knowledge to form an opinion regarding the role, if any, alcohol played in Herbert’s death. However, to the extent that the Plaintiff had challenged Lindsay’s qualifications as a toxicologist, the Court found that the Defendant had established that her experience as a Director of Toxicology and Molecular Biology specializing in forensic toxicology involving drug and alcohol-related incidents for 13 years in addition to her practical experience consisting of regularly performing retrograde and anterograde extrapolations to approximate drug and alcohol levels at the time of an incident using accepted scientific formulas and techniques qualified her to provide her opinions in this case. 

    The Plaintiff had also made the unsupported assertion that Lindsay’s opinions were “more likely to confuse or mislead” than to help the jury. However, Lindsay’s opinions could have assisted the jury in determining whether the comparative-fault affirmative defenses applied, as well as related issues. Notably, Florida Statutes Section 768.36(2), stated that in any civil action, a Plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured: (a) The Plaintiff was under the influence of any alcoholic beverage or drug to the extent that the Plaintiff’s normal faculties were impaired or the Plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and (b) As a result of the influence of such alcoholic beverage or drug, the Plaintiff was more than [fifty] percent at fault for his or her own harm.” 

    The Plaintiff had primarily challenged Lindsay’s opinions on reliability grounds. The Plaintiff had criticized the bases of some of her opinions and had pointed to supposed contradictions involving others. Under the Defendant’s theory of Herbert’s death, Herbert had acted aggressively toward his shooter before he was shot, possibly hitting the man. The Plaintiff had argued that Lindsay’s opinions should be excluded because she had based them on the Defendant’s theory, which, according to the Plaintiff, was not supported by the police report. The Plaintiff had also faulted Lindsay for providing the “fully speculative and unsupported” opinion that “when any individual has alcohol in their system, alcohol influences all of that person’s decisions.” The Plaintiff had further contended that Lindsay contradicted herself by opining both that an individual’s level of intoxication “is subjective” and that “all people are affected by alcohol in the same way.” The Plaintiff had also asserted that, although Lindsay admitted that “she had not been retained as a [human-factors] expert,” she had opined that “human factors may have caused the alleged aggression that could have occurred due to alcohol.”  

    The Court had found that the Plaintiff had correctly identified the factors for determining a methodology’s reliability, which involved ascertaining (1) whether the expert’s theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community. However, the Court had noted that the Plaintiff had disregarded these factors. He did not discuss the methodology’s error rate or whether the methodology has been tested, subjected to peer review and publication, or generally accepted in the scientific community.  However, the Defendant established that Lindsay had looked to data and facts in this case. Specifically, the District Nine Medical Examiner’s Office had performed the blood testing of Johnson on January 15, 2018, which had shown positive results for alcohol in Johnson’s system. According to the Examiner’s Office, Johnson’s vitreal fluid BAC was 0.102%, which was lower than Johnson’s peripheral blood BAC of 0.115%. According to Lindsay’s experience and education, the level of alcohol found in Johnson’s vitreal fluid had been representative of his intoxication at the time of his death. 

    After evaluating the Examiner’s Office’s conclusion, Lindsay had applied those conclusions to established publications, particularly referencing board-certified Forensic Toxicologist, Dr. Kurt Dubowski’s “table of Stages of Alcoholic Influence,” which was used by peers to approximate various psychomotor effects at varying alcohol levels. Hence, Johnson’s blood test results had supported a scientific finding that a sufficient amount of alcohol was found in his body for an expert to opine to impairment of judgment and concentration, distorted perception and reasoning, loss of coordination, and emotional or behavioral control, which resulted in risk-taking behavior. The methodology that Lindsay had used to form her opinions had been based on testing that was generally accepted in the field of toxicology and reliable. Lindsay’s opinions had been based upon the data from the Examiner’s Office, as well as generally accepted and peer-reviewed research, and her training and experience. 

    Additionally, the Defendant had highlighted a crucial missing fact from the Plaintiff’s Motion: Johnson had exited the vehicle he was in to engage with the shooter. This had been one of the key actions by Johnson that had contributed to his death and had supported Lindsay’s conclusion that his alcohol-related impairments would most likely have influenced Johnson’s decision to get out of the vehicle he was in and confront the three individuals, rather than leave the scene. 

    Held 

    The Court denied the Plaintiff’s Daubert motion to exclude Janci Chunn Lindsay’s expert opinions. 
     The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution. 

    Key Takeaways 

    This case illustrates the importance of establishing an expert’s qualifications, methodology, and helpfulness to the jury when offering expert opinions. The party offering the expert bears the burden of proof on these issues. Strong qualifications based on education, training, and experience are key. The expert’s methodology must be reliable under the Daubert factors – testability, known error rate, peer review/publication, and general acceptance. The opinions must also help the jury determine facts at issue in the case.  

    Critiquing an expert’s application of methodology is generally better suited for cross-examination rather than exclusion. Minor contradictions or flaws in how an expert applied a reliable methodology typically go to weight rather than admissibility.  

    The Court’s gatekeeping role under Daubert seeks to admit quality expert testimony that will properly assist the jury. This role is not served by excluding testimony merely because some critique can be made regarding the expert’s application of an otherwise reliable methodology. Such critiques are for the jury to consider in weighing the expert opinions. As long as qualifications, methodology and helpfulness are reasonably established, exclusion is inappropriate. 

  • Court excludes unreliable pharmacology and neurology expert opinions in product liability case; grants summary judgment

    Court excludes unreliable pharmacology and neurology expert opinions in product liability case; grants summary judgment

    This case involved a product liability lawsuit filed by Harvey Mahler against The Vitamin Shoppe Industries, Inc. in the United States District Court for the Northern District of Illinois. Mahler alleged that he developed peripheral neuropathy after taking a multivitamin manufactured by The Vitamin Shoppe that contained arsenic and lead.  

    Mahler purchased two bottles of The Vitamin Shoppe’s One Daily Men’s 50+ vitamin supplement on June 25, 2017. He took one tablet per day from June 25 to August 16, 2017, for a total of 51 days. In mid-August 2017, Mahler began experiencing symptoms including peripheral and ulnar neuropathy, bilateral foot numbness, hypertension and renal artery thrombosis. He saw several physicians, including his primary care doctor, a nephrologist and a hematologist. None of them diagnosed Mahler with heavy metal poisoning or ordered tests to screen for heavy metals. 

    Nonetheless, Mahler sent the vitamin supplement to an independent laboratory, Eurofins, which detected arsenic and lead in the product. Eurofins sent back a report that showed the Vitamin Supplement contained a detectable amount of arsenic and lead—two types of heavy metals. Although his physicians did not link his symptoms to the vitamins, Mahler believed based on his own research that the arsenic and lead caused his health issues.  

    On June 5, 2018, Mahler visited Octavia Kincaid, a neurologist. He reported neuropathy in his feet and left hand fingers. Kincaid reviewed prior electromyography (EMG) tests and examined Mahler. She diagnosed him with peripheral neuropathy. Mahler told Kincaid about the vitamins containing heavy metals and gave her the Eurofins report. Kincaid said arsenic and lead could cause his symptoms. Her blood tests for other potential causes came back normal. She clinically diagnosed Mahler with peripheral neuropathy likely from heavy metal toxicity. 

    In his lawsuit, Mahler alleged that the arsenic and lead in the vitamin supplement caused his peripheral neuropathy. He asserted claims for strict liability, negligence, breach of warranty, negligent misrepresentation, and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”)

    The Vitamin Shoppe moved for summary judgment, arguing that Mahler lacked evidence that the small amounts of arsenic and lead in its product could have caused his alleged injury. Mahler relied on neurologist Octavia Kincaid and pharmacist James O’Donnell to provide pharmacology and neurology expert opinions on causation. The Vitamin Shoppe moved to exclude them under Daubert, asserting their opinions were unreliable. Defendant also filed a Daubert motion to exclude the testimony of Plaintiff’s other two experts- Jon Edward Clark and Stanley Vladimir “Stan” Smith.

    Causation and Damages Expert Witnesses 

    James Thomas O’Donnell, PharmD, M.S., F.C.P., is highly qualified as an expert in pharmacology, toxicology, and pharmacy. He has over 30 years of experience in teaching, research, and consulting in these fields. O’Donnell holds a Doctor of Pharmacy degree from the University of Michigan and a Master of Science in Clinical Nutrition from Rush University. He is an Associate Professor of Pharmacology at Rush University Medical Center.

    O’Donnell has authored numerous books related to pharmacology, toxicology, and pharmacy law. He has also published articles in peer-reviewed journals and consulted with pharmaceutical companies. 

    His qualifications include being board certified as a Diplomate in the American Board of Clinical Pharmacology. He is a Fellow of the American College of Clinical Pharmacology and the American College of Nutrition.

    In summary, O’Donnell’s extensive education, teaching and research experience, publications, and board certifications in pharmacology, toxicology, and pharmacy make him highly qualified to provide expert testimony on the topics relevant to this case. 

    Octavia B. Kincaid, M.D. is a Neurologist who provided medical care to Harvey Mahler from June 5, 2018 to the present. She  is an adult neurologist who specializes in neuromuscular neurology. She holds board certification in adult neurology, clinical neurophysiology, and neuromuscular medicine through the American Board of Psychiatry and Neurology. She received her medical degree from The University of Texas Health Science Center at San Antonio and has been in practice for more than 20 years. 

    Octavia Kincaid is currently working as a Neurologist at NorthShore University HealthSystem. Before her current position, she served as the Assistant Dean for Curriculum in the College of Medicine at the University of Illinois, Chicago. Additionally, she held a previous role as a Neurologist at the University of Illinois Hospital & Health Sciences System.System.  

    Jon Edward Clark, M.S., has over 35 years of experience in the pharmaceutical industry, including extensive expertise with FDA regulations and practices. He holds Bachelor’s and Master’s degrees in Chemistry. He worked for 21 years at the FDA, serving in leadership roles developing and implementing policy. After the FDA, he served as an executive in the U.S. Pharmacopeia, involved with setting standards for medicines and dietary supplements. He now runs an independent consulting firm focused on FDA regulatory requirements and compliance.  

    Stanley Vladimir Smith, Ph.D. is a nationally renowned economist who received his Ph.D. from the University of Chicago. 

    Discussions by the Court  

    The Vitamin Shoppe moved to exclude the causation opinions of Kincaid and O’Donnell under Daubert and Rule 702. The Court granted both motions, finding their methodologies unreliable. 

    Plaintiff relied upon Octavia Kincaid to establish both general and specific causation—that is, that the lead and arsenic contained in the Vitamin Supplement Plaintiff took could and did cause his peripheral neuropathy. 

    However, the Court first found Mahler failed to properly disclose Kincaid as a non-retained expert under Rule 26(a)(2)(C). He did not provide a summary of the facts and opinions to which she would testify on causation. However, the Court excluded Kincaid based on unreliability even if she had been properly disclosed.  

    Kincaid testified there were likely thousands of potential causes of peripheral neuropathy, with heavy metal exposure being rare. She said Mahler told her he took vitamins containing heavy metals and provided the Eurofins report. Although Kincaid ordered blood tests for more common neuropathies, they came back normal. With no other apparent cause, she clinically diagnosed Mahler with heavy metal induced peripheral neuropathy.  

    The Court found this process unreliable under Daubert. Kincaid agreed dose and duration of exposure were relevant to causation. But she could not recall investigating the levels of arsenic/lead in the vitamins or how long Mahler took them. She speculated she probably looked up reference levels but had no notes documenting so. The Court also did not express an opinion on Kincaid’s clinical or treatment methods. Kincaid herself clarified that her conclusion was a “clinical diagnosis” made based on the available information at the time. It’s important to note that her intent was not to establish “proof” of causation in a legal sense.

    The Court cited cases requiring experts to consider dose-response in toxic tort cases. As Kincaid failed to evaluate dosage, the Court deemed her opinions inadmissible. 

    The Defendant made three main arguments for excluding O’Donnell’s expert testimony. First, it contended he lacked qualifications for some opinions. Second, it argued his opinions about raw ingredients were irrelevant. Third, it asserted O’Donnell did not use a reliable methodology for his general causation conclusions, as he failed to analyze the dose-response relationship between the levels of arsenic and lead in the Vitamin Supplement and the onset of peripheral neuropathy. Defendant argued that the factual assumptions made by O’Donnell did not support the record.

    The Court found multiple reliability issues rendering O’Donnell’s opinions inadmissible. First, O’Donnell incorrectly assumed Mahler took the vitamins for four years rather than the 51 days supported by the record. He speculated all of Mahler’s vitamins contained arsenic/lead based merely on other products from China having contamination, not evidence specific to The Vitamin Shoppe’s products. The Court held this undue speculation did not satisfy Daubert. 

    Additionally, like Kincaid, O’Donnell failed to reliably consider dosage. He agreed dose response was relevant to toxicity. He knew there were acceptable daily intake levels of arsenic/lead under which toxicity would not be expected. Yet he conducted no analysis of the dose levels in the vitamins Mahler took or whether they exceeded acceptable thresholds. Instead, he reasoned that because Mahler developed neuropathy and his vitamins contained some level of arsenic/lead, they must have contained enough toxins to cause the neuropathy. The Court found this circular reasoning evidenced no reliable methodology under Daubert which rendered his opinions both unreliable and irrelevant.

    Held 

    In sum, the Court held that neither Kincaid nor O’Donnell employed reliable methods in reaching their causation opinions. Their failures to account for dosage of toxins in the vitamins rendered their testimony inadmissible under Rule 702. With no other evidence of causation, Mahler could not withstand summary judgment. Thus, the Court granted The Vitamin Shoppe’s motions to exclude Octavia Kincaid and James T. O’Donnell, and its motion for summary judgment. The Court denied as moot the motions to exclude Mahler’s other experts, Jon Clark and Stan Smith and subsequently terminated the case.

    Key Takeaways

    This product liability case illustrates the importance of ensuring expert witnesses employ reliable principles and methods under Daubert and Rule 702. The Court excluded both of Plaintiff Mahler’s causation experts because their opinions lacked sound methodology.

    • In toxic tort cases, experts must carefully consider dose and duration of exposure when rendering an opinion on causation. Both Kincaid and O’Donnell acknowledged this principle, yet failed to analyze or account for the levels of toxins in the vitamins Mahler consumed, it rendered their testimony unreliable.
    • Experts should not rely on unfounded assumptions or speculation. For example, O’Donnell unreasonably assumed that because Plaintiff was diagnosed with heavy metal-induced neuropathy and because the Vitamin Supplement that Plaintiff took contained lead and arsenic, it meant the Vitamin Supplement must have contained enough lead and/or arsenic to cause neuropathy. Expert opinions must be grounded in the facts of the specific case.
    • Additionally, Experts should avoid circular reasoning that uses the injury itself as proof of causation. The Court found O’Donnell employed this flawed logic.

    In excluding the experts, the Court demonstrated its critical gatekeeping role in vetting unreliable expert opinions before admission. Attorneys offering expert testimony must ensure their experts adhere to sound scientific principles and methods that can withstand Daubert scrutiny.

  • Multiple expert challenges in case involving recreational vehicle explosion leading to critical injuries

    Multiple expert challenges in case involving recreational vehicle explosion leading to critical injuries

    In October 2019, Plaintiffs Anthony Azzinaro and Kathryn Lindsay were severely injured when their recreational vehicle (RV) caught fire after a blowout of the front passenger-side tire. The RV fire occurred while they were driving on a freeway in Cochise County, Arizona. Azzinaro and Lindsay filed a lawsuit against Shyft Group Inc. and Shyft Group USA Inc., the companies that designed and manufactured the chassis of their RV. 

    The Plaintiffs alleged that the fuel fill line on the RV was “unprotected,” and when the tire blew out, it knocked the fuel fill line loose from the fuel tank. This caused gasoline to leak out rapidly and ignite, resulting in the fire that injured Azzinaro and Lindsay. Their complaint included two claims against the Defendants: (1) strict product liability for a design defect regarding the unprotected fuel line, and (2) negligence in designing the chassis including the placement of the fuel fill line.

    The case was filed in Arizona state court but removed to federal court based on diversity jurisdiction. During discovery, the Defendants retained Henry Miller as an expert witness on the reasonableness of the Plaintiffs’ claimed medical expenses. Miller produced a report opining that the full “hospital charges” billed for Azzinaro’s and Lindsay’s medical treatment were not a reasonable measure of the value of those services. 

    Dr. Miller’s opinion emphasized that the charges listed by hospitals for their services were not indicative of the reasonable or actual value of those services. He supported this view by pointing out that hospitals generally did not anticipate receiving the full amount of their listed charges from patients who did not have health insurance coverage and Valleywise Medical Center was no exception.

    The Plaintiffs filed a motion to preclude Miller’s testimony on grounds that it violated Arizona’s collateral source rule and was irrelevant and unreliable. The collateral source rule prohibits reducing a tortfeasor’s liability based on compensation received by the Plaintiff from independent sources such as insurance. The Plaintiffs argued Miller’s opinions about lower negotiated rates improperly relied on the existence of their insurance coverage. The Plaintiff also filed a motion to preclude certain testimony of Defendant’s expert, James J. Keough, Jr. on issues such as the design of a recreational vehicle (RV), issues concerning fuel spillage, and the history of prior repairs. The Defendants, in turn, filed a motion seeking to prevent certain testimony from the Plaintiffs’ expert, Mark V. Sutherland determining the cause and origin of an RV fire at the center of the case.

    Product Defects and Healthcare Finance Expert Witness

    Henry Miller has over 50 years of experience as a healthcare consultant and researcher specializing in healthcare finance, public policy, regulatory analysis, and strategic planning. He has a PhD in Accounting and Economics from the University of Illinois and an MBA from the City College of New York. Miller has conducted studies on healthcare costs and health insurance for the Medicare program, over 40 health insurers, and several state Medicaid programs. Currently, Miller is the Managing Director of Health Analytics at Berkeley Research Group.

    Miller has designed hospital, physician, and pharmaceutical payment systems for 7 state Medicaid programs and over 30 health plans. He has provided expert testimony to Congress, state legislatures, and in court cases regarding reasonable medical costs, provider payments, network management, and other healthcare finance topics.

    Miller has directed evaluations of federal health programs for HHS agencies including the Health Resources and Services Administration, National Center for Health Statistics, and Agency for Healthcare Research and Quality. He has worked extensively with Blue Cross Blue Shield plans and advised over 50 health plans on issues like network management, reimbursement approaches, Medicare Advantage, and strategic planning.

    Miller served on the Medicare committee overseeing development of the physician fee schedule. He assisted CMS on projects related to the Medicare hospital outpatient prospective payment system and inpatient DRG system. Miller also directed studies on improving access to care for disadvantaged populations and evaluating health data systems for the Maryland Health Care Commission.

    In summary, Miller has decades of experience researching, analyzing, and advising on complex healthcare finance and policy issues for government, health plans, and providers. His qualifications as an expert are firmly established based on his education, research, public testimony, and consulting work at the federal and state level.

    James Keough possesses extensive expertise in the field of specialty vehicle engineering, design, development, analysis, and testing. His specialization encompasses a wide range of specialty vehicles, including recreational vehicles (such as Class A, Class B, Class C, fifth wheels, travel trailers, toy haulers, and truck campers), as well as ambulances, terminal trucks, buses, and street sweepers. With a remarkable 29 years of experience in this domain, including 17 years in engineering management, Keough has a track record of leadership in developing RV chassis and terminal truck designs, emphasizing critical aspects like weight distribution, structural analysis, compliance with regulations, and rigorous testing. He has successfully implemented advanced techniques like finite element analysis and accelerated durability testing across five different specialty vehicle manufacturers. Keough also boasts expertise in the development of slide-out systems, spanning cable, hydraulic, and gear-driven mechanisms, including full-body slide systems. Additionally, his experience extends to ensuring compliance with the Federal Motor Vehicle Safety Standards (FMVSS) and testing for specialty vehicle applications. He has worked on legal matters related to the Magnuson-Moss Warranty Act and the Song-Beverly Act, particularly in the context of California Lemon Law cases, encompassing both automotive and specialty vehicle applications, including Texas and Florida Lemon Law matters. Keough has also contributed his knowledge and skills to cases involving Patent and Trade Dress matters.

    Mark Sutherland is a licensed Professional Engineer in both Texas and Oklahoma, with a degree in electrical engineering from the University of Texas at Austin. He holds certifications as a Certified Fire and Explosion Investigator, Certified Vehicle Fire Investigator, and Certified Fire Investigator Instructor. He obtained his requisite certification in 2002 through the National Association of Fire Investigators and the National Fire Protection Association. Sutherland serves as the president of Sans Peur Inc. d/b/a Expert Forensic Engineers, an engineering and technical services firm located in Brownwood, Texas. His extensive background encompasses electrical engineering, including design, development, marketing, and troubleshooting, dating back to 1983. Since 2002, he has specialized in forensic engineering, particularly in the fields of fire and explosion investigation, electrical faults, and failures, having conducted over 1,400 investigations.

    Discussions by the Court

    The Court first examined the collateral source rule. This rule prohibits reducing a Defendant’s liability based on compensation the Plaintiff receives from independent sources like insurance. Both parties agreed that reasonable medical expenses should be based on the fair market value of the services, defined as the price a willing buyer and seller would agree to.  

    The Plaintiffs contended Miller’s opinions about discounts and negotiated rates violated the collateral source rule. However, the Court found the negotiated rates were highly relevant to determining fair market value. Although the collateral source rule prevented the jury from considering the Plaintiffs’ specific insurance coverage and write-offs, it did not make negotiated rates irrelevant.

    The Court could not conclude that evidence of negotiated rates was inadmissible. The negotiated rate was the price the provider agreed to accept. This was relevant to the reasonableness analysis. No authority said the collateral source rule required excluding rate evidence. 

    The Court would allow Miller’s testimony about negotiated rates. But it would instruct the jury not to consider the Plaintiffs’ insurance coverage or write-offs. The Defendants were liable for the full reasonable value of medical services, not just the Plaintiffs’ out-of-pocket costs.

    Next, the Court examined the relevance and reliability of Miller’s specific opinions. It found his opinions about hospital accounting principles and unregulated charges were relevant to determining fair market value. The link between these factors and the price a hospital would accept was clear. 

    Dr. Miller’s testimony concerning GAAP (Generally Accepted Accounting Principles) and the accounting methods hospitals used to anticipate payments for healthcare services, along with his assertion that hospital charges were unregulated and not necessarily tied to the hospital’s actual costs, held relevance in the fact-finder’s task of determining the fair market value of medical expenses. This encompassed the reasonable price a hospital would agree to accept for its medical services. By shedding light on these aspects, Dr. Miller helped establish a clear connection between these factors and the price that a hospital would consider acceptable.

    The court also rejected the plaintiffs’ argument that Miller’s testimony about charges being unrelated to costs was unfairly prejudicial. The connection between costs and acceptable price was apparent. The court would instruct the jury on the proper legal standard. 

    However, the Court agreed with the Plaintiffs that Miller’s comparison of Valleywise’s rates to two other hospitals for unrelated conditions was problematic. This limited sample was not sufficiently relevant and reliable. So the Court precluded Miller’s opinions in that specific section of his report.

    In conclusion, the Court denied most of the Plaintiffs’ motion to preclude Miller’s testimony. His opinions about negotiated rates and industry practices would help the jury evaluate reasonable medical expenses. But the Court precluded the rate comparison analysis and would instruct against considering specifics of the Plaintiffs’ insurance and write-offs.

    The Plaintiffs filed a motion to preclude certain testimony of the Defendant’s expert, James J. Keough, Jr. The Plaintiffs argued Keough’s conclusions regarding the RV design, fuel spillage, and prior repairs were not reliable under Rule 702.

    The Court first examined whether Keough’s reports showed he relied on sufficient facts and data. The Court found the reports identified numerous materials Keough reviewed, including engineering drawings, industry standards, case materials, prior insurance claims, and his multiple inspections. Keough also described his extensive experience in RV design. Read together, the reports adequately described the facts, data, and experience underlying Keough’s opinions.

    Next, the Court addressed whether Keough’s methodology was reliable. The Court found that even where not explicitly stated, Keough’s methodology of relying on the facts, data, and his experience was apparent and sufficiently reliable. The Court noted that at trial, the Plaintiffs could challenge the weight of Keough’s opinions, but his methodology satisfied Rule 702.

    The Court also rejected the Plaintiffs’ argument that Keough’s testimony was irrelevant or unduly prejudicial under Rule 403. The Court found Keough’s opinions about the fuel tank design and safety were clearly relevant to determining the fuel spill cause. His views on modifications made to the tires and structure of the Subject RV after its manufacture-some resulting from prior damage to the Subject RV-were relevant and admissible to potentially explain the accident sequence or resulting damage.

    Additionally, the Court stated that evidence of Fleetwood’s role as RV manufacturer was relevant to comparative fault issues. The Plaintiffs did not seek to exclude evidence regarding Fleetwood. Thus, the Court found Keough’s testimony would not be unfairly prejudicial overall.

    In conclusion, the Court denied the motion to preclude Keough’s testimony. His proposed opinions were supported by sufficient facts, data, and experience. He applied a reliable methodology based on his technical expertise. While the Plaintiffs could contest the weight and conclusions of Keough’s testimony at trial, it was admissible under the standards set forth in Daubert and Rule 702.

    Therefore, the Court rejected the Plaintiffs’ core argument that Keough’s opinions lacked an adequate foundation and methodology. It found his testimony regarding the RV design, fuel spillage, and prior repairs would assist the fact-finder, with the veracity of his conclusions subject to challenge by the Plaintiffs. The Court emphasized that vigorous cross-examination, rather than exclusion, was the appropriate method to address shaky but admissible expert testimony.

    The Defendants filed a motion to preclude certain testimony of the Plaintiffs’ expert, Mark Sutherland, regarding the cause and origin of the RV fire. The Defendants argued Sutherland’s testimony lacked reliability under Rule 702 by failing to use proper methodology and rely on adequate testing or data.

    First, the Court examined the Defendants’ argument that Sutherland should be limited to testifying about fire cause and origin, not “accident reconstruction.” The Court found Sutherland had to consider accident facts and evidence to reliably determine how the fire started. Examining fire cause and origin in a vacuum would undermine credibility. The facts and data Sutherland cited were within his expertise to comprehend.

    Next, the Court reviewed the Defendants’ challenge to reliability of Sutherland’s first fuel opinion. The Court noted Sutherland’s opinion went beyond the snippets quoted by Defendants and relied on multiple accident facts. The Court found Defendants could challenge Sutherland’s conclusions on cross-examination, but his first fuel opinion was sufficiently reliable.

    The Court then addressed the Defendants’ argument that Sutherland failed to properly test hypotheses for the ignition source under NFPA 921 standards. The Court reviewed how Sutherland identified and eliminated other possible sources based on the facts, settling on sparks from the blown tire. Sutherland thereby followed NFPA 921 methodology.

    Overall, the Court was not convinced Sutherland used an improper methodology or lacked a reliable basis for his opinions. The Court emphasized that disagreements over an expert’s conclusions do not render the testimony inadmissible. Vigorous cross-examination was the appropriate method to challenge shaky but admissible expert opinions.

    In conclusion, the Court denied the motion to preclude Sutherland’s testimony. His experience regarding vehicle fires qualified him as an expert. The facts and data underlying his opinions were adequate. And his methodology reliably applied his expertise to the case evidence. The Defendants could contest Sutherland’s conclusions, but his testimony met Rule 702 standards.

    Therefore, the Court rejected the core argument that Sutherland’s opinions were methodologically unreliable. It found his cause and origin testimony was properly grounded in the facts and his technical knowledge. Mere disagreement with an expert’s conclusions does not warrant exclusion under Daubert.

    Held

    The Court precluded one small portion of Miller’s proposed expert testimony but otherwise denied the Plaintiffs’ motion. Miller would be allowed to testify that normal negotiated rates between hospitals and insurers, rather than full undiscounted charges, are the best evidence of reasonable medical expenses. This was directly relevant to the jury’s evaluation of damages. However, the jury could not make any inference about the specifics of the Plaintiffs’ medical coverage or net out-of-pocket costs resulting from insurance adjustments.

    The Court held that the opinions presented by Keough were indeed relevant, particularly with regard to the design and safety of the fuel tank location, as this directly pertained to determining the cause of a fuel spill in an accident. Additionally, Keough’s opinions regarding modifications made to the RV’s tires and structure after its manufacture, especially those related to prior damage, were deemed admissible because they may provided valuable information in describing the accident or potentially contributing to it or the resulting damage. The Court denied the Plaintiff’s motion to preclude the testimony of James J. Keough, Jr.

    The Court denied the Defendant’s motion to limit the testimony of Mark V. Sutherland since the Court had not been convinced by the Defendants that Sutherland employed an improper methodology, which warranted the exclusion of his testimony as unreliable under Rule 702. The Court aligned with the Plaintiffs in the belief that mere disagreement by the Defendants, or their own expert, with Sutherland’s conclusions does not render those conclusions inadmissible. Instead, the Defendants were permitted to cross-examine Sutherland’s opinions.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    This case demonstrates how Courts apply reliability and relevance standards to determine admissibility of expert opinions under Daubert and Rule 702. The Court allowed most of the defense expert’s proposed testimony because it would aid the jury in evaluating reasonable medical expenses. Testimony about factors influencing negotiated rates between hospitals and insurers met the rules’ relevance test. The expert’s long industry experience analyzing hospital billing provided a reliable methodology foundation.  

    However, the Court precluded one portion of the proposed testimony comparing the Plaintiff’s hospital’s rates to others. This limited sample lacked sufficient relevance to the case facts. And the arbitrary, narrow methodology failed to meet reliability standards. This illustrates how even qualified experts cannot introduce opinions connecting loosely to the facts or lacking a sound methodology. 

    Overall, the Court emphasized tailoring the testimony to the needs of the case while excluding unreliable or irrelevant portions. Expert opinions must assist the trier of fact rather than confuse or distract. This case also highlights the need for careful jury instructions explaining the proper and improper uses of expert testimony when exclusions are limited. Qualified, relevant expert opinions can be presented, but within defined legal parameters.

    The Court further held that the testimony does not warrant exclusion normally if the methodology the testimony is premised on is fundamentally sound but however the opposing party is free to contest the veracity and weight of the testimony through cross examination.

  • Orthopedic expert testimony on causation survives unreliable methodology challenge in Louisiana

    Orthopedic expert testimony on causation survives unreliable methodology challenge in Louisiana

    This case involved a personal injury lawsuit filed by Plaintiff Darla Lacara and the testimony of the Defendant’s orthopedic expert witness. Lacara alleged that she suffered a labral tear to her hip as a result of an injury sustained while shopping at a Kohl’s department store on December 23, 2020. 

    According to Lacara, she was walking through the Kohl’s store when her purse, which was on her right shoulder, got caught on a protruding hook on a shelving unit. This caused the shelving unit to fall onto Lacara’s right side. Lacara twisted her body to the left and used her left hand to push the fallen shelving unit off of her. Lacara claimed that having to brace herself against the shelving unit and twist her body in this manner caused her to suffer a labral tear in her left hip.

    Kohl’s disputed Lacara’s version of events and causation theory. Kohl’s retained orthopaedic surgeon Dr. Chad Millet as an orthopedic expert witness. Dr. Millet opined that Lacara’s hip injury was not caused by the incident at Kohl’s. Rather, he opined that her injury was caused by “repeated impingements” resulting from “the aspherical nature of her femoral head.” Dr. Millet formed this opinion after reviewing Lacara’s medical records, but he did not physically examine her. 

    Lacara filed a motion to exclude causation expert Dr. Millet’s orthopedic expert witness testimony under Daubert, arguing that his methodology was unreliable because it was based solely on a review of medical records rather than a physical examination. Lacara also argued Dr. Millet’s opinion was unreliable because he mistakenly assumed she had fallen to the ground during the incident, when she did not actually fall. 

    Orthopaedic Expert Witness

    Dr. Chad Millet is an orthopaedic surgeon specializing in hip and knee replacement surgery, with a particular interest in minimally invasive techniques. He completed orthopaedic residency training at Louisiana State University and a fellowship in joint replacement at Johns Hopkins Hospital. Dr. Millet has served in numerous leadership roles including President of the Greater New Orleans Orthopaedic Society, Chief of Orthopaedics at two hospitals, and Chairman of Surgery. He is recognized nationally for his expertise in joint replacement techniques. Dr. Millet’s leadership experience includes serving as President of the Louisiana Orthopaedic Association and he is currently President of the Society for Arthritic Joint Surgery. He is a member of several prestigious professional associations. With this extensive surgical experience, leadership, teaching appointments, awards, and membership in elite orthopaedic societies, Dr. Millet is highly qualified to provide expert testimony regarding orthopaedic injuries and conditions.

    Discussions by the Court

    The Court noted that under Daubert, expert testimony must be based on sufficient facts and reliable methodology. However, the Court found that experts are permitted to offer opinions not based on firsthand knowledge or observation, citing Daubert v. Merrell Dow Pharmaceuticals, Inc. The Court stated that numerous Courts have held that an expert witness need not personally examine a Plaintiff to offer an opinion. Rather, review of medical records combined with the expert’s medical experience can sufficiently ensure reliability. The Court concluded Dr. Millet’s methodology of reviewing the medical records informed by his extensive experience as an orthopaedic surgeon was sufficiently reliable under Daubert. The Court ruled Dr. Millet’s reliance on records instead of examining Lacara went to the weight, not admissibility, of his testimony. 

    Lacara also argued Dr. Millet’s opinion was unreliable because he mistakenly assumed she had fallen during the incident when she did not actually fall. The Court found Dr. Millet’s understanding of the accident was consistent with Lacara’s deposition testimony – he accurately stated her purse got caught on a protruding hook which caused the rack to fall into her arm as she described. While Dr. Millet mentioned an assumption Lacara fell, the Court found this did not render his opinion inadmissible. The Court reasoned that if anything, an assumption of additional trauma would make Dr. Millet more likely to relate the injury to the incident. However, Dr. Millet testified that his causation opinion was based on Lacara’s chronic condition, not any assumed fall. Again, the Court ruled the dispute over the basis for Dr. Millet’s opinion affected the weight the jury should assign it, not admissibility. 

    In conclusion, the Court stated Dr. Millet’s methodology of reviewing the medical records was acceptable and sufficiently reliable under Daubert to allow his testimony and the causation expert’s testimony was admitted. The Court found Lacara’s complaints about Dr. Millet not examining her and assuming she fell went to the weight of his testimony and constituted issues for cross-examination and the jury to consider.

    Held

    The Court ruled that despite some alleged flaws in his methodology, Dr. Millet could testify and the jury could determine the appropriate weight to give his opinions. Lacara’s motion to exclude the orthopedic expert witness testimony under Daubert was denied. The Court dismissed the case without prejudice on August 29, 2023.

    Key takeaway

    This case demonstrates that experts are permitted to offer opinions based solely on a review of records, without physically examining the Plaintiff. An expert’s reliance on medical records rather than a firsthand exam goes to the weight, not the admissibility, of the testimony. The Court found that review of records combined with the expert’s professional experience can be a sufficiently reliable methodology under Daubert as a result of which the causation expert’s testimony was admitted.

  • Unreliable testimony by metrology and food safety expert excluded in class action for false and deceptive advertising

    Unreliable testimony by metrology and food safety expert excluded in class action for false and deceptive advertising

    This case, Gwinn v. Laird Superfood, was decided in the United States District Court for the Southern District of New York on September 8, 2023. The Plaintiff, Lovelynn Gwinn, brought a class action lawsuit against the Defendant, Laird Superfood, charging Laird with false and deceptive advertising and labeling of its creamer and other food products in violation of New York General Business Law §§ 349 and 350 when Laird inaccurately described the serving sizes on the nutrition labels of its powdered creamer products. 

    The Food, Drug, and Cosmetic Act (FDCA) and FDA regulations require nutrition labels to display the serving size as both a reference amount in grams and a common household measure. For powders, the reference amount is 2 grams. The household measure must be the one that most closely approximates 2 grams. Laird’s labels used teaspoon measurements. 

    Gwinn claimed Laird violated the FDCA by using an inaccurate household teaspoon measurement on its labels. Gwinn relied on a metrology expert report by Nidal Kahl, a food safety expert and consultant, to show Laird’s measurements were wrong. Laird moved to exclude Kahl’s testimony. Without the expert testimony, Gwinn could not prove the labels were inaccurate.

    Kahl tested one container of each of Laird’s seven powdered creamer products. Four products’ labels listed the serving size as 1 teaspoon. Three listed it as 3/4 teaspoon. Kahl emptied and weighed each container. Using a household teaspoon, he measured and weighed 12 samples from each product, calculating the average. He compared his measured weights to the label information.  

    Kahl concluded that all the 1 teaspoon servings weighed over 2 grams, from 2.7 to 3.4 grams. The 3/4 teaspoons also exceeded 2 grams. When he divided the containers’ total weights by his measured teaspoon weights, he found fewer servings than the labels stated. 

    In his work, Kahl presented two significant conclusions based on his research findings. First, he found that all containers with retail packaging listing 2g as a 1-teaspoon serving weight actually contained between 35% and 71% more product than indicated on the labels. This implies that consumers are unknowingly consuming significantly more of the product than they might believe based on the label. Second, Kahl’s data revealed a consistent product shortage in each retail container tested, ranging from 22% to 40%. This shortfall occurs because consumers end up using a larger product weight per serving, even when the label specifies 2g as the serving weight for 1 teaspoon.

    Laird moved to exclude Kahl’s testimony as unreliable under Daubert and Federal Rule of Evidence 702. Laird argued Kahl’s consumer-perspective methodology was irrelevant to whether Laird followed labeling regulations. Laird also contended Kahl’s techniques were not scientifically reliable.

    Metrology Expert Witness

    Nidal Kahl completed his B.S. in Microbiology & Chemistry from Oregon State University. He is a food safety and food quality advisor and has been recognized in the food industry as a food safety expert and consultant. He has been serving the food industry at an international level for approximately 19 years in areas including regulatory compliance, process validation, routine microbiological analysis, and development and implementation of quality assurance programs. 

    Currently, Nidal Kahl is the Director of Biogen Laboratory Developments, LLC. He is the Founder of Bolt Films, LLC; Kahl Properties, LLC; and Furniture Plus, LLC. He is also the Co-Founder of Celebrity Spa, LLC; Kahl & Company, LLC; and Celebrity Tan, LLC. 

    Discussions by the Court

    The Court began its discussion by setting forth the legal standard for admissibility of expert testimony. The Court stated that the admissibility of expert testimony is governed by Federal Rule of Evidence 702. Under Rule 702, expert opinion evidence is admissible if it will help the factfinder understand the evidence or determine a fact at issue, is based on sufficient data, and is the product of reliable principles reliably applied. The proponent of the evidence bears the burden of establishing its admissibility. Expert testimony must be both relevant and have a reliable foundation under Daubert.

    The Court explained that Kahl’s testimony must show Laird violated FDA labeling rules to avoid preemption. The Court reiterated that claims challenging compliant labels are preempted. So Kahl’s testimony could only survive if it showed Laird used an incorrect household measure under the FDCA. At this stage, Gwinn had to submit evidence of a labeling violation. Kahl’s report failed to carry this burden.

    The Court held Kahl’s testimony was not relevant. Kahl’s consumer-perspective measurements did not address whether Laird followed FDA’s rules for selecting serving sizes. Since Kahl did not purport to show Laird failed to comply with regulations, his testimony was irrelevant. Challenging compliant labels as misleading raised preemption issues beyond the scope of this lawsuit.

    Additionally, the Court found Kahl’s methods were not reliably scientific under Daubert. Kahl described “a rudimentary measurement process” based on a consumer approach, not expert scientific techniques. He omitted critical details about his equipment, measurement process, and analytical practices. Kahl reported final values only to the nearest tenths place. While Kahl did not follow FDA Guidance, which recommended specific measurement standards, he also offered no academic support for his methodology or its error rate. This failed to demonstrate the intellectual rigor Rule 702 requires of expert testimony. Kahl’s generic description of “measuring” the products, without reliability controls, fell short of scientific standards.

    The Court explained that Kahl’s failure to follow FDA guidance did not excuse his lack of reliable methodology. While Kahl did not have to adhere to the FDA guidance for manufacturers, Gwinn still had to show Kahl employed scientifically reliable principles and methods.

    Kahl’s assessment of the products had significant limitations, including testing only one sample per flavor variety and not independently sourcing the products. His initial report lacked descriptions of product conditions, temperature information, and details about the experiment participants.

    Had Kahl demonstrated relevance and baseline reliability, these flaws may not have required exclusion. But they provided additional reasons to find his opinions unreliable.

    The Court rejected Gwinn’s arguments for admitting Kahl’s testimony. Gwinn argued mainly that Kahl did not have to follow the FDA guidance. But this missed the key point that Kahl still needed to demonstrate his methods were scientifically reliable, which he failed to do. Gwinn also contended Laird’s criticisms went to weight rather than admissibility. The Court disagreed, holding Kahl’s methodology lacked the validation required under Daubert and Rule 702.

    Held

    In sum, the Court found Kahl’s testimony irrelevant and unreliable. His consumer-perspective testing shed no light on whether Laird followed labeling regulations. And his techniques plainly lacked scientific rigor. The relevance and reliability issues each independently required exclusion under Daubert and Rule 702. Without Kahl’s testimony, Gwinn could not show Laird’s labels were inaccurate under the FDCA. Since Kahl’s opinions were excluded, Gwinn had no evidence that Laird used an incorrect household serving size measure. As a result, Gwinn could not prove her underlying FDCA labeling violation claim.  This case awaits its final resolution.

    Key Takeaways

    This case demonstrates several important requirements for admitting expert testimony under Federal Rule of Evidence 702 and Daubert. First, experts must employ scientifically valid methodology. The Court excluded Kahl’s testimony because his basic consumer-perspective techniques lacked indicia of reliability like error controls and technical details. Second, reliability at every step matters. The Court stated that any unreliable step dooms the whole analysis. Kahl’s flaws like small samples and omitting product condition details highlighted this and the metrology expert’s testimony was subsequently found unreliable.  

    Third, relevance is critical. The Court found Kahl’s testimony irrelevant because his consumer measurements did not address the key issue – whether Laird followed labeling rules. Even reliable methods yielding irrelevant opinions are inadmissible. Fourth, reliability requires intellectual rigor equaling field standards. Kahl’s generic descriptions fell below professional metrology standards. Fifth, Courts may consider additional factors bearing on reliability. Here, Kahl’s lack of peer-reviewed support further undermined reliability.

    In summary, this case illustrates that expert testimony must be both methodologically reliable and relevant. Courts scrutinize each step of the analysis and whether the expert employed the expected level of intellectual rigor. Even minor shortcomings may render testimony inadmissible when fundamentally unreliable.

  • Vermont Court limits executive search and recruitment expert’s opinions regarding Plaintiff’s job qualifications and associated compensation range

    Vermont Court limits executive search and recruitment expert’s opinions regarding Plaintiff’s job qualifications and associated compensation range

    This case involved a claim of malicious prosecution brought by Plaintiffs Robert Wolfe and Crossfield, Inc. against Defendants Enochian BioSciences Denmark ApS, Enochian BioSciences, Inc., Rene Sindlev, and Luisa Puche. Wolfe was a citizen of Vermont and the CEO and sole shareholder of Crossfield. Enochian BioSciences was a publicly traded Delaware corporation and the parent company of Enochian Denmark, which was located in Denmark. Sindlev was the Chairman of Enochian BioSciences and Puche was its CFO. 

    Enochian Denmark had hired Wolfe as a consultant and CFO in 2017. His employment agreement contained confidentiality provisions barring disclosure of Enochian’s confidential information during or after his employment. In December 2018, Sindlev informed Wolfe he would be terminated as CFO. The Enochian Board of Directors then voted to terminate him later that month. 

    After Wolfe’s termination, a dispute arose over payments he sought related to his employment. In February 2019, Wolfe filed a lawsuit in Denmark against Enochian seeking these payments. Prior to filing, Wolfe’s attorney had emailed Enochian a draft complaint containing allegedly confidential information about payments Enochian had made for security services for its scientific advisor Serhat Gumrukcu. 

    Enochian then filed a lawsuit against Wolfe in Vermont state court in February 2019, alleging he had disclosed Enochian’s confidential information and seeking injunctive relief to bar further disclosures. Enochian was initially granted a temporary restraining order but in December 2019, after a hearing, the Court dissolved the TRO and held Enochian had failed to satisfy the requirements for a preliminary injunction. In April 2020, Enochian moved to dismiss its Vermont lawsuit with prejudice. The Court conditionally granted the motion in November 2020 and awarded Wolfe his costs but not attorney’s fees.

    In April 2022, Wolfe withdrew his Danish lawsuit and brought his claim before an arbitrator. The Danish Court still found Wolfe to be the unsuccessful party and ordered him to pay costs to Enochian, which he had not done.

    In the current federal case, Wolfe and Crossfield brought a malicious prosecution claim against Enochian, Sindlev, and Puche. They alleged the Vermont lawsuit was improperly initiated to gain leverage in the Danish case and harm them professionally and financially. 

    Enochian filed two motions: (1) a motion demanding the exclusion of speculative expert opinions of Wolfe’s executive recruitment expert witness Jeffrey Ketchum, and (2) a motion for summary judgment. 

    Vermont Court limits executive search and recruitment expert’s opinions regarding Plaintiff’s job qualifications and associated compensation range

    Executive Search and Recruitment Expert Witness

    Jeffrey R. Ketchum has over 27 years of experience in executive search and leadership consulting. He has personally completed 200 engagements focused on executive recruiting, management appraisal and assessment, executive compensation, and succession planning for organizations ranging from two million dollars to sixty million dollars in revenue across various industries. 

    Ketchum graduated from Cornell University’s Advanced Program for Executive Search and Leadership Consulting, an MBA-level certificate program designed for senior consultants with over 10 years of experience. He also holds the Certified Researcher/Associate certification from the Association of Executive Search and Leadership Consultants, the only comprehensive external certification for researchers in executive search. 

    Through his executive search firm Lordstone Corporation and its subsidiaries, Ketchum has experience performing executive job search analysis, interviewing, media research, and assessing executive skills, performance, and compensation for recruiting purposes. He previously worked for Management Recruiters International where he conducted over 60 executive/professional searches.

    Ketchum has also received training in behavioral analysis for deception detection, business brokerage, executive assessment using the Topgrading methodology, and coaching. He is a member of professional associations like the Turnaround Management Association and has published extensively on business management topics.

    Ketchum’s qualifications include his advanced education, certifications, decades of experience in executive recruiting and consulting, training in relevant methodologies, publications, and memberships that demonstrate his expertise. The Defendant pressed for exclusion of speculative expert opinions provided by Jeffrey R. Ketchum in the instant case.

    Discussions by the Court

    Jeffrey R. Ketchum was the Plaintiffs’ expert witness in this case. He has extensive professional experience in executive recruitment and continuing education in the field. Based on his qualifications, the Court found Ketchum was an expert on executive salaries, job searches, and recruitment. 

    The Defendants filed a motion to exclude Ketchum’s expert opinions as unreliable, arguing his opinions were not based on a discernible methodology but were reverse engineered to reach a desired conclusion. The Defendants claimed that Rule 702 of the Federal Rules of Evidence warranted exclusion of speculative expert opinions of the kind.

    Regarding Ketchum’s opinion on the career opportunities Wolfe would be qualified for and the associated compensation range, the Court found the factual support established Ketchum’s opinion that Wolfe was qualified for a Chief Financial Officer role was grounded in reliable evidence and admissible. However, it excluded Ketchum’s opinion on Wolfe’s probable compensation range of $240,000-$500,000. Ketchum failed to explain why he believed Wolfe’s compensation should fall in this range. His opinion relied solely on Wolfe’s prior Enochian salary and the compensation of Wolfe’s successor, without comparing their qualifications or services as CFO. Ketchum did not evaluate Wolfe’s prior compensation history or the market rates for CFO positions. The Court found his compensation range opinion was wholly conclusory and appeared designed to maximize the range without considering Wolfe’s history of lower earnings.

    The Court also excluded Ketchum’s opinion that Wolfe’s job search efforts were reasonable. It concluded that this opinion invaded the province of the jury as an inadmissible legal conclusion, citing United States V. Bilzerian. Ketchum’s assumptions about the reasonableness of Wolfe’s networking efforts were based on unverified data. For example, Ketchum did not independently verify the substance of thousands of emails on a spreadsheet from Wolfe but nonetheless found the spreadsheet reliable. Ketchum also failed to explain how the emails he did review demonstrated Wolfe used networking to find work. Further, Ketchum’s reliance on Wolfe’s job applications to jobs posted on a job board contradicted his own statements that job boards are often unproductive for executive searches. Due to these flaws in Ketchum’s reasoning, the Court found his opinion regarding the reasonableness of Wolfe’s job search efforts was unreliable and excluded it.

    The Court also excluded Ketchum’s opinion that media coverage following Wolfe’s termination would have substantially impeded his job search. Ketchum failed to provide an admissible causation opinion, as he could not identify any specific employers that had rejected Wolfe due to the media coverage. His report also failed to cite any media articles that discussed the Vermont lawsuit itself. By ignoring unfavorable evidence from his own media research that conflicted with the desired outcome, Ketchum appeared to have reverse engineered his conclusion. The Court found his media research opinion was neither reliable nor relevant.

    Held

    In sum, Ketchum’s expert opinions were limited since the Court denied the motion to exclude Ketchum’s opinions regarding Wolfe’s job qualifications and the use of networking in executive searches. However, it granted the motion regarding Ketchum’s opinions on probable compensation, reasonableness of the job search, and the impact of media coverage. It found these opinions were conclusory, speculative, and relied on inadequate methodology under Rule 702.

    The Court also denied Enochian’s motion for summary judgment in its entirety. It found there were genuine disputes of material fact regarding each element of Wolfe’s malicious prosecution claim: whether Enochian lacked probable cause, acted with malice, the Vermont case was terminated in Wolfe’s favor, and Wolfe suffered damages. The Court held a jury must resolve these factual disputes, therefore summary judgment was inappropriate.The court has not yet made a final decision on the case, and there are still unresolved issues that need to be addressed before a final ruling can be issued.

    Key Takeaways

    This case demonstrates the importance of methodology and factual support in determining the admissibility of expert witness opinions under Rule 702. Even though Jeffrey Ketchum was qualified as an expert based on his extensive professional experience in executive recruiting, portions of his opinions were excluded due to inadequate methodology. Specifically, the Court found his opinions regarding the Plaintiff’s probable compensation range and the reasonableness of his job search efforts were conclusory because they relied on limited data points without sufficient explanation of his reasoning which warranted exclusion of speculative expert opinions. This shows experts must thoroughly explain their methodology and have reliable factual support for their conclusions, rather than relying solely on experience or selectively choosing data. 

    Furthermore, the Court excluded opinions that invaded the province of the jury, like reasonableness, or were unhelpful generalizations. This reinforces the fact that experts cannot offer legal conclusions or merely restate common sense. Experts must utilize their specialized knowledge to offer opinions tethered to the facts of the case. Overall, this case demonstrates the importance of methodology and factual support in admitting expert opinions, as well as avoiding legal conclusions or unhelpful generalizations. Thorough explanation of the expert’s reasoning in applying specialized knowledge to the case facts is key under Rule 702.

  • Court admits expert testimony regarding restrictive covenants in public nuisance case

    Court admits expert testimony regarding restrictive covenants in public nuisance case

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

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

    Real Estate Expert Witness

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

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

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

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

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

    Discussions by the Court

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

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

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

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

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

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

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

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

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

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

    Held

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

    Key takeaways

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

  • FTX Founder’s Experts Face Exclusion in Cryptocurrency Fraud Case

    FTX Founder’s Experts Face Exclusion in Cryptocurrency Fraud Case

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

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

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

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

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

    Government Seeks to Exclude 7 Defense Experts in FTX Collapse Case

    Lawrence Akka

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

    Joseph M. Pimbley

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

    Bradley A. Smith

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

    Pietro (Peter) Umberto Vinella

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

    Andrew Di Wu

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

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

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

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

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

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

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

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

    Key Takeaways:

    • Experts cannot testify to legal conclusions, interpret contracts, or opine on whether the Defendants had the requisite mental state to commit the crimes. This improperly usurps the role of the judge and jury.
    • Experts noticed by the defense failed to provide adequate disclosure of their opinions and analysis as required by the rules of evidence. Vague topics are insufficient.
    • Proposed testimony on background information, industry practices, actions of third parties, and regulatory uncertainty from several experts is irrelevant to the issues the jury must decide. It is also likely to mislead and confuse the jury.
    • Testimony opining that the Defendants acted reasonably or in good faith compliance with laws and regulations is impermissible state of mind evidence.
    • Some experts lack qualifications to testify about cryptocurrency markets and exchanges. Their opinions are unreliable and speculative.
    • Expert testimony that is cumulative of facts that can be established through percipient witnesses is unnecessary and improper. In summary, the government argues the proposed experts either lack proper qualifications, offer legal opinions and testimony irrelevant to the facts at issue, or provide unreliable and prejudicial opinions. The testimony should therefore be excluded or limited through Daubert hearings.