On January 10, 2025, Plaintiffs filed their First Amended Complaint against Defendant, alleging they suffered injuries when a wholly unprovoked group of highly intoxicated passengers (“the Aden Family”) physically assaulted and battered them while attending a “White Party” on the Defendant’s Vessel. The Plaintiffs, other than Daniella Dos Santos Vieira (“Plaintiff”), settled their claims with Defendant. As a result, the First Amended Complaint’s three remaining claims are: general negligence (Count I), negligent failure to warn (Count V), and premises liability (Count IX).
Defendant sought to strike the proposed testimony of Plaintiff’s expert, Ronald J. Thomason.
Maritime Expert Witness
Ronald J. Thomason has over 25 years of experience in providing security assessment, planning, and training services to commercial maritime industry, government, and law enforcement personnel responsible for oversight and enforcement of regulatory compliance of security standards and practices.
In preparing his report, Thomason reviewed the Cruise Vessel Security and Safety Act of 2010 (“CVSSA”), the International Ship and Port Facility Security (ISPS) Code, as well as various case documents.
First, Thomason opined that Defendant did not have enough security staff dedicated to provide a presence for deterrence and appropriate response at the “White Party”. Second, Thomason opined that Defendant did not comply with the requirements of the CVSSA. Third, Thomason opined that the Plaintiffs acted reasonably in response to a foreseeable and preventable unprovoked attack. Fourth, Thomason opined that Defendant failed to follow its own published policy, and the “White Party” bar staff failed to follow the established procedures for identifying inebriated guests, terminating their consumption of alcohol, and notifying security of their possible threat to the safety and enjoyment of other event attendees. Fifth, Thomason opined that had Defendant complied with the requirements of the CVSSA, this incident could have been detected and deterred before escalating into a physical assault.
I. Methodology and Helpfulness
First Opinion
First, Thomason opined that based on his years of training, education, and experience Defendant did not have enough security staff present for deterrence. He opined that all of Defendant’s security staff are required to be trained in the CVSSA, which provides specific instruction on the detection, prevention, evidence collection, and reporting of specific criminal threats.
However, the Court found that Thomason’s opinion improperly relied upon regulations that are inapplicable based on the facts of this case.
As to Thomason’s suggestion that more security would have prevented the altercation, Thomason did not explain how additional security would have prevented the sudden punch in this case. To the contrary, the CCTV camera shows at least two employees in the vicinity of Plaintiff and her assailant at the time of the punch.
Second Opinion
Thomason’s second opinion is that Defendant failed to comply with the requirements of the CVSSA. As the Court previously determined, the CVSSA is not implicated because the incident does not involve a homicide, kidnapping, sexual assault, suspicious death, theft of money over $10,000, or a physical assault with serious bodily injury.
Third Opinion
Thomason’s third opinion is that, based on his experience, Plaintiff acted reasonably in response to a foreseeable and preventable unprovoked physical attack. Thomason’s opinion relied only on his experience. Moreover, his opinion did not explain how his experience led to that conclusion, why his experience is a sufficient basis for the “reasonable” actions of the Plaintiff or the “foreseeability” of the assault.
Fourth Opinion
Thomason’s fourth opinion argued Defendant failed to follow its own published policy. However, Thomason failed to articulate what these established procedures are, how the bar staff failed to follow them, or how the unreferenced procedures would have prevented the sudden punch thrown at Plaintiff.
Fifth Opinion
Fifth, Thomason opined that had Defendant complied with the CVSSA and Defendant’s published policies for dealing with the intoxicated guests, this incident would have been detected and deterred prior to ever escalating into a fight. However, this summation of Thomason’s prior opinions is entirely speculative and not rooted in a methodology that relies on anything other than his experience.
The Court found that Thomason’s analysis lacked a reliable methodology and would not be helpful.
Held
The Court granted Defendant’s Daubert motion to strike the testimony of Ronald J. Thomason.
Key Takeaway
The trial court’s gatekeeping function requires more than simply taking the expert’s word for it. Moreover, Thomason’s first opinion pivots from security measures to the suggestion that the ship staff was improperly trained on how to detect intoxicated guests. Thomason provided no support for this assertion either in his experience or an applicable regulation.
This litigation arises from a motor vehicle accident that occurred during the early morning hours of May 10, 2023, on Interstate 20 in Bienville Parish, Louisiana. Ja’Vel Coleman alleged that she sustained injuries when her vehicle struck the rear of a tractor-trailer operated by Saint Fleur.
According to Defendants, Saint Fleur experienced mechanical issues with his tractor-trailer and pulled onto the shoulder of Interstate 20 prior to the collision.
Brown examined Coleman on January 15, 2026, and subsequently issued an expert report setting forth his findings and opinions while Lorencz reviewed AT&T Call Detail Records and identified calls and text messages associated with the phone number, the times of those communications, and the cell towers used during those communications.
Dr. Douglas Coleman Brown has been in private practice in North Louisiana since 1977 and is certified by the American Board of Orthopaedic Surgery and the American Board of Independent Medical Examiners. He also is a member of the American Orthopaedic Foot and Ankle Society.
Josh Lorencz possesses substantial training and experience in the field of cell phone forensics. He spent approximately sixteen years with the Simi Valley Police Department working as a detective and police officer and then subsequently worked in digital forensics for Envista Forensics before joining Rimkus.
Lorencz has several certifications in digital forensics and has performed numerous digital analyses of this kind.
Coleman first sought exclusion of Brown’s opinions regarding future medical costs. In their opposition, Defendants expressly stipulate that Brown will not testify or offer opinions regarding Coleman’s future medical costs and represent that they have retained a separate expert to address those issues.
b. Coleman’s Neurological Condition and the October 2023 EMG
Coleman challenged Brown’s opinions regarding Coleman’s neurological condition, arguing that Brown failed to adequately account for an October 2023 EMG report showing radial neuropathy and performed an insufficient neurological examination.
The Court found that these criticisms go to the weight of Brown’s testimony rather than its admissibility. Brown acknowledged the EMG findings during his deposition and provided an explanation for why the study did not alter his clinical conclusions during his January 2026 examination.
Coleman has not demonstrated that Brown employed an unreliable methodology such that exclusion is warranted under Rule 702. Any alleged shortcomings in Brown’s review of the medical records, interpretation of the EMG, or physical examination may be explored through cross-examination.
c. Return to Work
Coleman also sought exclusion of Brown’s opinion that Coleman is capable of returning to her pre-injury sedentary occupation to the extent that opinion relies upon his neurological findings. Because the Court found that Coleman has not established a basis for excluding Brown’s neurological opinions, the Court likewise declined to exclude his opinions regarding Coleman’s functional capacity and work restrictions.
d. Future Treatment
Coleman next sought to exclude Brown’s opinions regarding future surgical treatment and the appropriate surgical approach to Coleman’s anticipated hip arthroplasty. Coleman emphasizes that Brown no longer performs orthopedic surgery and testified regarding certain physical limitations.
The Court found no basis for exclusion of this testimony. The record reflects that Brown is a board-certified orthopedic surgeon who practiced orthopedic surgery for decades, performed the type of procedures at issue during his career, remains licensed, and continues to practice medicine and perform independent medical examinations.
Any reduction in his surgical practice or disagreement regarding the appropriate surgical approach affects the weight of his testimony rather than its admissibility.
II. Josh Lorencz
a. Qualifications
Based upon Lorencz’s education, training, and professional experience, the Court found that he possesses sufficient qualifications to testify regarding cell site location analysis. Accordingly, the Court found that Lorencz is qualified to offer expert testimony in this matter.
b. Reliability of Methodology
Coleman argued that Lorencz’s opinions should be excluded because his CellHawk training occurred in 2016, he has not attended refresher courses since that time, and he cannot explain the software’s internal processes.
Notably, Coleman did not challenge the general reliability of cell site location analysis itself. Instead, Coleman argued that Lorencz lacked sufficient familiarity with the CellHawk software because he has not received recent training and cannot explain the software’s internal processes.
Here, the record reflected that Lorencz has extensive experience utilizing CellHawk and performing cell site location analyses. The fact that he cannot explain the software’s back-end functionality did not render his methodology unreliable.
Any alleged deficiencies in Lorencz’s familiarity with CellHawk’s internal workings can be scrutinized on cross-examination and affect the weight of his testimony rather than its admissibility. Accordingly, the Court rejected Coleman’s argument that Lorencz’s opinions should be excluded based upon his training history or inability to explain CellHawk’s internal processes.
Coleman also argued that Lorencz failed to reliably apply his methodology because he did not independently verify cell tower locations. During his deposition, Lorencz acknowledged that he has independently verified tower locations in prior matters but did not do so in this case. Instead, he relied upon the AT&T records and CellHawk’s mapping functions.
The Court found that this criticism goes to the weight of Lorencz’s testimony rather than its admissibility.
Although Lorencz acknowledged that independent verification through tools like Google Earth may be used to ensure accuracy of the cell tower locations, Coleman has identified no authority finding that such verification is a prerequisite to admissibility under Rule 702.
Likewise, the Court is aware of no authority suggesting that an expert’s failure to employ every available validation technique renders an otherwise reliable methodology inadmissible. The Court concluded that Lorencz’s decision not to independently verify the tower locations presents an issue appropriately explored through cross-examination.
c. Scope of Permissible Testimony
Lorencz was retained to analyze AT&T Call Detail Records associated with a particular telephone number. His report identifies calls and text messages, the timing of those communications, and the cell towers associated with those communications. The record further reflects that Lorencz reviewed the AT&T Call Detail Records and the Louisiana Uniform Crash Report but did not review GPS data, electronic logging device (“ELD”) data, or other location-specific information.
Lorencz testified that cell site location analysis did not permit him to determine the precise GPS location of a device. Rather, he can only identify the tower and sector utilized during a communication.
Thus, the fact that a communication utilized a specific tower only indicates that the device was within the serviceable range of that tower at that time; it does not establish the device’s precise location.
Accordingly, Lorencz may testify regarding the contents of the AT&T Call Detail Records, the timing of the calls and text messages reflected therein, the cell towers and sectors associated with those communications, and the general principles underlying cell site location analysis. Such testimony may assist the jury in understanding the evidence.
However, the Court finds that the methodology employed by Lorencz does not support testimony concerning the precise location of any vehicle or person, the precise time that Saint Fleur arrived at the accident location, the length of time that any vehicle remained at a particular location, or other conclusions that cannot be reliably derived from the Call Detail Records.
Likewise, Lorencz may not offer opinions regarding user identity, driver behavior, distraction, causation, or matters beyond the scope of his report and expertise.
Held
The Court granted in part and denied in part Coleman’s Daubert motions to exclude and/or limit the testimony of Dr. Douglas Brown and Josh Lorencz.
Key Takeaway
Experts routinely rely upon specialized software tools without possessing detailed knowledge of the software’s source code or internal algorithms.
However, Rule 702 requires not only that expert testimony be reliable, but also that it assist the trier of fact. Thus, even where an expert is qualified and employs a reliable methodology, the testimony must remain within the bounds of what that methodology can reasonably support.
In May 2025, Plaintiff Richard Paul Merrell filed the operative putative class action complaint against Defendant Ralph Lauren Corporation. Plaintiff is visually impaired and legally blind, and he uses screen-reading software to read website content using his computer.
Screen-reading software (or a “screen reader”) allows blind and visually impaired users to access websites using a combination of a keyboard and “software that vocalizes the visual information found on a computer screen.”
Plaintiff alleged that Defendant’s website, including but not limited to https://www.ralphlauren.com/, “is not fully or equally accessible to blind and visually impaired consumers.”
According to Plaintiff, “Defendant’s failure to properly code its website” to be accessible means that he and other class members “have been and are still being denied equal and full access to Defendant’s retail stores and the numerous goods, services, and benefits offered to the public through Defendant’s website in conjunction with Defendant’s brick-and-mortar retail store locations.”
Defendant filed motions to exclude the testimony of Plaintiff’s experts, Dr. Jon A. Krosnick and Dr. William C. Easttom, II. Plaintiff filed a motion to exclude the testimony of Defendant’s expert, Aaron Cannon.
Psychology Expert Witness
Jon Alexander Krosnick is a Stanford professor and a research psychologist at the U.S. Census Bureau with a degree in psychology from Harvard University and an M.A. and Ph.D. in social psychology from the University of Michigan.
He has taught classes and trainings on research methods, received awards for research and psychology, authored or co-authored hundreds of articles and presentations, and otherwise conducted extensive research on survey research methods.
Dr. William Charles Easttom, II has Ph.Ds in technology and computer science, a Doctor of Science in cyber security, and multiple related master’s degrees. He has authored 44 computer science books and dozens of research papers and is an inventor of 27 computer science patents. He is as an adjunct lecturer at Georgetown University and Vanderbilt University.
Easttom has published three books specifically on JavaScript (a coding language for web development), holds a Certified Professional in Accessibility Core Competency certification, and has taken two accessibility courses.
Aaron Cannon has “been working in the field of web and mobile app accessibility for over seventeen years and [has] been developing software for twenty-nine years.” He is a “Certified Professional in Web Accessibility” and holds multiple accessibility-related certificates.
Cannon is totally blind and has been using screen readers since 1988, including JAWS for Windows, NVDA, TalkBack, VoiceOver, and the Orca screen reader. He also co-founded and served as chief accessibility officer for a company that provided accessibility auditing of websites and mobile apps.
Based on his review of the complaint, literature and documentation about methodologies employed in past surveys of blind people, past surveys of visually impaired people, studies of accessibility challenges faced by blind people when using computers, and other information, Krosnick conducted a survey and concluded that “the number of legally blind people living in California who used a screen reader and were prevented from doing business with a physical store due to problems related to accessibility with the Ralph Lauren webpage is 3,243.”
Defendant argued that Krosnick’s testimony should be excluded in full because (1) his opinions are unreliable and not based on sufficient facts or data; (2) his survey results are inadmissible hearsay; and (3) his survey is irrelevant and will not help the trier of fact.
Analysis
First, Defendant argued that Krosnick’s survey did not use a random probability sample and instead “recruited non-representative survey respondents from Facebook groups for visually impaired people.” But Krosnick made clear that he combined a primarily randomized probability sample with some respondents from Facebook groups oriented toward visually impaired people, and that this kind of “blended” probability sample “is a widely accepted practice in contemporary survey science.”
Defendant also contended that Krosnick’s survey had a low response rate, leading questions, self-interest bias, recall bias, and a lack of verification of unreliable answers.
The Court also is not persuaded that the survey involved leading questions or self-interest bias just because it asked participants if they wanted to “help improve the experiences of blind people using the Internet,” and then listed potential problems the respondents may have experienced.
Even if the survey’s wording did implicate some level of bias, this would not be so substantial as to render the survey unreliable.
B. Dr. William C. Easttom, II
Despite his extensive background, Defendant argued that “Easttom is not qualified to opine on website accessibility,” since general education in computer science is not interchangeable with competence in website accessibility. Even if Easttom has a relatively limited amount of experience with website accessibility, he plainly is an expert on website design and computer science, and the Court is not persuaded that his extensive background is insufficient to qualify him as an expert.
Defendant also argued that Easttom’s testimony should be excluded in full because (1) his report relied on the wrong website; (2) his methodology is unreliable; and (3) he impermissibly offers legal conclusions.
Analysis
First, Defendant argued that Easttom failed to test a screen reader version of its website, “despite being prompted to enable accessibility features.”
The fact that Easttom didn’t test an alternative, enhanced version of the website may undercut the weight of his methodology or Plaintiff’s claims against Defendant, but it did not render Easttom’s opinions completely irrelevant or unreliable.
Methodology
Second, Defendant raised various attacks on Easttom’s methodology, including that Easttom (1) did not use two tools he used in another case and (2) makes a “huge inferential leap” that Defendant denied access to its goods and services from the fact that the store locator wasn’t rendered as a clickable website attribute.
First, any questions about the tools used go to weight, rather than admissibility. Second, the Court disagreed that Easttom’s conclusions are that large of an inferential leap, or that they are irrelevant to answering the question of whether Defendant’s website violated the ADA. And to the extent another expert said that visually impaired customers could locate Defendant’s brick-and-mortar stores through its website, that is a battle of the experts to be resolved by the trier of fact.
Legal Conclusions
Third, Defendant argued that Easttom improperly offered legal conclusions. In particular, Defendant took issue with Easttom’s statements suggesting that Ralph Lauren’s website is not ADA compliant.
The Court agreed with Defendant: Easttom’s opinion and testimony that Defendant’s website did not meet ADA compliance requirements, is an improper legal conclusion, and the Court granted the motion as to these opinions.
However, one of the purported “legal” conclusions is actually a conclusion about whether Defendant’s website complies with the Web Content Accessibility Guidelines (“WCAG”), which are “a set of international standards designed to make web content more accessible.” This is not a legal conclusion just because Easttom made reference to tools that are used for scanning ADA compliance.
Fourth, Defendant argued that Easttom “conflates Ralph Lauren’s alleged non-compliance with WCAG 2.1 AA guidelines, and alleged non-compliance with the ADA,” and “there is no authority at all for the proposition that websites must comply with the WCAG guidelines.”
Reliability
Finally, Defendant argued that Easttom improperly used the Internet Wayback Machine to determine if historical versions of Defendant’s website were inaccessible because the Wayback Machine does not necessarily include full JavaScript functionality and may “not allow a user to evaluate [a website’s] full functionality.” These critiques—and critiques about the sample of Wayback Machine pages that were chosen—go to weight and do not fundamentally undermine the reliability of the opinion. This is especially true where, as here, Defendant has offered no reason to believe that these individual webpages had missing JavaScript functionality.
C. Aaron Cannon
Plaintiff first argued that portions of Cannon’s declaration should be excluded as untimely. Plaintiff sought exclusion under Federal Rules of Civil Procedure 26 and 37.
Rule 26
Defendant argued that Cannon disclosed that he had new opinions in his deposition, yet Plaintiff “did not question him about those additional opinions.”
The Court found that Defendant has not shown harmlessness. Defendant’s argument appears to be that Plaintiff’s counsel should have pushed harder at the deposition, ignoring the fact that Cannon evasively and vaguely mentioned he had some unspecified other opinions, but would not explain what they were. This is especially true where Defendant had already asserted that it would not disclose its rebuttal opinions to Easttom’s report, which it did not perceive to be related to class certification. As a result, the Court rejected Defendant’s suggestion that Plaintiff had the same “free rein” to get additional discovery on these untimely opinions as in Defendant’s cited cases.
Defendant’s other arguments regarding a lack of prejudice or surprise are unpersuasive. Defendant summarily stated that Plaintiff only cites a “single distinguishable case” supporting his claims of prejudice, and “Plaintiff has also not identified any additional expenses caused by Defendant’s alleged failure to disclose, because there is none.” This flips the burdens: it is Defendant’s burden to demonstrate harmlessness or substantial justification, and it has not done so. Accordingly, the Court will strike the identified portions of Cannon’s declaration, though those portions would have been irrelevant to the remainder of the Court’s order here.
Rule 702
Plaintiff next argued that Cannon’s testimony should be excluded in full because (1) his opinions are not based on sufficient facts or data; (2) he did not apply a reliable, testable method to the case; (3) his class certification opinions are unhelpful; (4) his opinions offer impermissible legal conclusions; and (5) he is not qualified to offer “socioeconomic and population-level opinions or reliability engineering opinions.”
In particular, Plaintiff first argued that Cannon’s opinion should be excluded because he did not “gather any site-specific facts about Ralph Lauren’s website” and instead “offered generalized assumptions based on experience, which Rule 702(b) does not permit.”
The Court found that Cannon’s opinions about what individualized technical problems may impede a user with a screen reader from accessing a website are adequately based upon his extensive personal knowledge and experience. To the extent Plaintiff believes Cannon’s testing was flawed or didn’t consider enough data or site-specific information, those critiques go to weight, not admissibility.
The same is true for Plaintiff’s arguments that Cannon did not deploy a reliable methodology.
Cannon is applying his extensive experience with accessibility-related software and screen readers to make high-level observations about, for example, the differences in hardware, operating systems, and screen reader software, in order to explain why this Court would have to engage in individualized inquiries about each class members’ experience.
The Court also disagreed that Cannon’s opinions “substitute legal judgment for technical analysis.” The fact that Cannon is identifying individualized issues in a user’s experience with accessibility features—a central part of the predominance inquiry—did not mean that he is impermissibly making legal conclusions.
Held
The Court denied the motion to exclude the testimony of expert Dr. Jon A. Krosnick.
The Court granted in part and denied in part the motion to exclude the testimony of William C. Easttom.
The Court granted in part and denied in part the motion to exclude the testimony of Aaron Cannon.
Key Takeaway
When evaluating specialized or technical expert opinion testimony, the relevant reliability concerns may focus upon personal knowledge or experience.
Plaintiffs The Avon Company and LG H&H Company, Ltd. (“Avon,” or Plaintiffs) brought this suit against Fareva Morton Grove, Inc. and Fareva S.A. (collectively “Fareva,” or Defendants) for a breach of their long-term Manufacturing and Supply Agreement (the “MSA”).
Fareva filed a motion to exclude the testimony of Avon’s two experts, Anthony J. Campanelli and Brent K. Bersin on the grounds that their testimony is based on unreliable data.
Accounting Expert Witnesses
Anthony J. Campanelli is a Certified Public Accountant with more than 25 years of experience at Deloitte, one of the world’s largest and most respected accounting and consulting firms.
Brent Kevin Bersin is a Senior Managing Director at FTI Consulting with 30 years of experience as an expert witness and consultant on valuation, financial and forensic accounting, and economic damages.
Campanelli will testify about the calculation of the Net Service Level Payments (“NSLPs”). The NSLPs are calculated based on Schedule D of the MSA, which sets out a formula that, put simply, considers when Fareva fulfilled Avon’s orders and when Avon placed those orders. The formula in Schedule D required a somewhat complex set of calculations, given the delivery and order timing inputs and different multipliers per product. In drafting his expert report and reaching his opinion, Campanelli relied on data provided by Avon regarding forecasts, orders, and delivery data from the relevant time period. Fareva argued that Campanelli’s opinion is not based on reliable data, that his calculations are inconsistent with the Schedule D formulas, and that the opinion improperly introduced contractual interpretations.
Analysis
First, the data relied upon by Campanelli are sufficiently reliable. The discrepancies that Fareva pointed to do not rise to the level of being “speculative or conjectural or based on assumptions that are so unrealistic.” Further, it was permissible for Campanelli to rely on the data provided by Avon. Even if Fareva’s “claims as to factual inaccuracies” in the underlying data and assumptions used by Campanelli were assumed true, Campanelli “at most had a few faulty inputs to an otherwise topical opinion on [the NSLPs]—this is thus not a case in which ‘there is simply too great an analytical gap between the data and the opinion proffered.’”
Second, Fareva argued that Campanelli’s calculations are inconsistent with the MSA because they differ from calculations performed by PwC, Avon’s former expert. The discrepancy is explained by a reasoned choice in how Campanelli calculated the NSLPs, a choice which conformed with Fareva’s position on calculations and resulted in a lower damages claim. This is not a basis for rejecting Campanelli’s opinion.
Third, Campanelli did not rely on improper assumptions or legal interpretations of the MSA in his calculations. While Fareva is correct that an expert may not make legal determinations interpreting a contract, Campanelli’s assumptions regarding the completeness of the data did not rise to the level of an impermissible contract interpretation.
As a result, the Court denied Fareva’s motion to exclude the expert testimony of Campanelli.
Brent Bersin
Bersin will testify about Avon’s lost profits attributable to the lost sales of products that Fareva failed to produce or timely deliver. Bersin’s opinion is based on comparisons between Avon’s performance before and after the breach and on a benchmark comparison of the performance of the broader industry. Bersin relied on a subset of Avon’s North American sales data that captured the products produced by Fareva. Fareva argued that Bersin relied on unreliable and inaccurate data in his calculations, that he failed to disaggregate compounding factors, and his basis of benchmark comparison was unreliable.
Analysis
First, Fareva argued that the sales data relied upon by Bersin included products that Fareva did not produce, that there were other indicia of unreliability, and that Bersin failed to independently verify the data. As with Campanelli, any inconsistencies, which Avon also disputes factually, did not rise to the level of being “speculative or conjectural or based on assumptions that are so unrealistic.” And Bersin permissibly relied on the data provided by Avon in the ordinary course of business.
Second, Fareva argued that Bersin improperly attributed all of Avon’s losses to Fareva, without disaggregating alternative sources of harm. This is insufficient to bar Bersin’s testimony. Bersin’s report acknowledged alternatives, noting that Avon’s oversales were declining and distinguishing between sales data in different product categories.
Third, Fareva argued that Bersin relied on an insufficiently comparable benchmark for its benchmark analysis. Bersin relied upon the Statista data for the “Beauty & Personal Care market” in making his comparison. Fareva contended that using this market, without further analysis of the comparison between the companies within it, was improper, and that the market selected did not compare to Avon because the companies within did not use the same sales model as Avon. The Court disagreed. Bersin acknowledged that he considered the brands within the personal care market to be comparable when deciding to use them. It is reasonable to conceive of Avon as a beauty and personal care brand selling similar products to those in the comparison group. Bersin was not required, as Fareva suggests, to draw a comparison to groups based solely on distribution model that offer entirely different products from Avon.
Therefore, the Court denied Fareva’s motion to exclude the testimony of Bersin.
Held
The Court denied Fareva’s motion to exclude the testimony of Anthony Campanelli and Brent Bersin.
Key Takeaway
Disputes as to the strength of an expert’s credentials, faults in his use of a particular methodology, or lack of textual authority for his opinion, go to the weight, not the admissibility of his testimony.
Plaintiffs Yafeng Zhu and Shuhui Zhang filed this action in March 2024 for damages stemming from a motor vehicle accident that occurred in April 2022.
Specifically, Plaintiffs alleged that at approximately 12:21 a.m. on April 1, 2022, Plaintiff Zhu was traveling westbound on a two-lane section of Interstate 70 in Bond County, Illinois, as part of his employment. The right lane of the highway contained markings for ongoing construction, but no construction work was being performed at that time.
At or near milepost 37.6 westbound, there was a manmade pothole (i.e., a cutout) that was only marked by cones in the right lane. According to Plaintiff, however, the pothole protruded into the left lane without any signs or cones signifying the full length of the protrusion. As a result, Plaintiff Zhu’s vehicle crashed into the manmade pothole, causing the vehicle to flip onto its side and Plaintiff Zhu to suffer severe injury and expense.
Michelle J. Albers has a Master of Science degree in rehabilitation psychology from the University of Wisconsin and has obtained numerous licenses and certifications related to rehabilitation counseling and life care planning. In addition, she has practiced vocational rehabilitation counseling for over 27 years, has worked as a vocational and life care planner for over 17 years, and has served as a social security vocational expert since 2004. Albers has also served as an expert witness in numerous cases across various state and federal courts.
Physical Medicine and Rehabilitation Expert Witness
Dr. Richard Graham Bowman earned his M.D. from West Virginia University, and he specializes in physiatry (physical medicine and rehabilitation). In addition, Bowman has been certified by the World Institute of Pain as a Fellow of Interventional Pain Practice and he has been certified by Capital University School of Law as a Certified Life Care Planner. He has also served on the International Commission on Health Care Certification’s Certified Life Care Planner Board of Commissioners.
Dr. Helena K. Breuer obtained a master’s degree and a bachelor’s degree in civil engineering, both of which included a focus in transportation engineering. In addition, she obtained a Ph.D. in civil engineering with a specialization in transportation engineering.
Breuer also completed 280 hours of accident reconstruction-related training approved by the Accreditation Commission for Traffic Accident Reconstruction.
Defendant Keeley challenged the sufficiency of the facts and data underlying Albers’ opinions, as well as the methodology and reliability of those opinions.
However, Albers’ opinions about Plaintiff Zhu’s inability to work and lost earning potential were based on sufficient facts and data. Her expert report considered hundreds of documents including dozens of medical and billing records, depositions, tax returns, photographs and videos, and numerous other discovery documents from this case.
Defendant Keeley next contended that Albers failed to rely on personal observations of Plaintiff to reach her opinions. Albers conducted a clinical interview of Plaintiff Zhu, relied on the depositions of Plaintiff Zhu and his family, and also relied on the medical records and findings of Plaintiff Zhu’s doctors.
Next, Defendant Keeley argued that Albers’ testimony should be excluded because she did not follow a reliable methodology, and thus “the opinions included in her report are unreliable because they amount to mere speculation or conjecture.”
While Defendant Keeley contended that Albers merely explained what those methods entail, without also explaining how they were applied in this case, the Court does not believe that to be true. Rather, Albers’ report demonstrates how she applied those accepted methodologies to the facts of Plaintiff Zhu’s case.
Finally, Defendant Keeley argued that Albers’ testimony and report should be excluded because her opinions would not assist the trier of fact due to the lack of data underlying her opinions and errors or inconsistencies in her methodology. The Court has already rejected Defendant Keeley’s data and methodology arguments above.
Thus, all that is left is to determine whether Albers’ opinions may be helpful to the jury. Suffice to say, the Court believes Albers’ expert opinion as to lost earning capacity would be relevant and helpful to the trier of fact in determining damages, if applicable.
II. Dr. Richard Bowman’s Expert Opinions
Defendant Keeley first argued that Bowman’s evaluation is not supported by sufficient facts or data. In this regard, Defendant Keeley emphasizes that Bowman “did not perform any physical tests or any kind of investigation” into Plaintiff Zhu’s capabilities and instead relied on Plaintiff Zhu’s subjective self-reporting. However, as shown in Bowman’s report, he relied on extensive medical records from Plaintiff Zhu’s providers and also evaluated Plaintiff Zhu over Zoom.
Defendant Keeley argued that Bowman relied exclusively on the conclusions of other medical providers, rather than the underlying data generated by them.
The Court rejected Keeley’s argument that Bowman’s opinion could only rely on the “data generated” by Plaintiff Zhu’s medical providers and not their overall conclusions. To the contrary, had Bowman relied solely on the data Plaintiff Zhu’s doctors generated, that would have raised much greater concerns as to Bowman’s qualifications and methodology, absent a showing that he was qualified to interpret underlying data from every type of medical field at issue in this case.
Defendant Keeley’s challenge related to whether Plaintiff Zhu has and will continue to avail himself of the treatment Bowman accounted for in his reports is also a question of weight, not admissibility. Admittedly, evidence that Plaintiff Zhu has not, or will not, avail himself of treatment that Bowman anticipated in his life care plan is something that goes to the weight of Bowman’s plan and cost estimates.
However, Plaintiff Zhu’s alleged treatment noncompliance does not impact the reliability of Bowman’s methodology. And, in regard to methodology, Bowman reasonably relied upon medical opinions as to the care Plaintiff Zhu will need and then expanded upon that information by using his expertise to estimate future costs. That is an appropriate methodology for determining Plaintiff’s care costs.
III. Helena Breuer’s Expert Opinions
a. Breuer’s Qualifications as an Expert
As Plaintiffs admit, this is Breuer’s “first case as an expert.” Obviously, however, the Court’s inquiry focuses on Breuer’s qualifications and not her experience or lack thereof as an expert witness.
Breuer did not dispute the fact that she is not a licensed engineer, has not designed a traffic control plan, has not assisted or evaluated the setup of an active traffic control plan, and has no prior work experience related to commercial truck drivers in construction zones.
Here the purpose of Breuer’s investigation and report was “to determine if the temporary traffic controls (TTC) at the time of the incident (1) met the requirements outlined in the approved TTC plans, (2) adequately warned road users of hazards created by work activities, and (3) provided adequate positive guidance for drivers to safely navigate the work zone.” Accordingly, given Breuer’s extensive education in civil engineering with a focus in transportation engineering along with her accident reconstruction training, the Court found that she is qualified and has an adequate foundation to answer the above questions.
Defendant Keeley has also argued that, even if Breuer is qualified to provide expert opinions on certain transportation related topics, such as passenger vehicles and commercial vehicles at rest, she is not qualified to provide expert opinions for situations involving “extensive interstate construction and commercial vehicles traveling on a busy interstate.”
Thus, to the extent Breuer has greater specialized experience in passenger vehicles or commercial vehicles at rest, as opposed to “commercial vehicles traveling on a busy interstate,” that distinction goes to the weight of her expert opinions, not their admissibility.
b. Sufficient Facts and Data
Defendant contended that Breuer’s report is lacking facts and data because: (1) she never visited the crash site or performed any sort of scene examination; (2) she has no knowledge of how traffic control measures were placed at the end of the construction day; (3) she lacks knowledge as to the reasons for the cutout extension; and (4) her opinions rely on unsupported assumptions. Again, the Court is not persuaded.
Analysis
For one, even if the Court assumes that there was value in Breuer visiting the crash site several years after the incident in question, Defendant Keeley’s argument improperly presumes that the failure to personally visit the site renders an expert’s opinions unreliable. This is an argument that has already been rejected in this circuit on multiple occasions.
Turning to Defendant Keeley’s next contention—that Breuer has no knowledge of how traffic controls were placed at the end of the workday—the Court again found that this challenge would, at most, go to the weight of Breuer’s opinions. For one, Breuer’s report demonstrates that several individuals associated with Defendant Keeley have claimed that their placement of safety barrels was permissible at the time of the accident. Put simply, Breuer’s expert opinion on the placement of safety barrels at the time of the accident is not impacted by the separate question of whether those safety barrels were initially placed in different, suitable locations.
Defendant Keeley also argued that Breuer’s opinions should be excluded because she lacks knowledge as to the underlying cause for the cutout extension (i.e., the manmade pothole referenced in the Complaint). The Court questions how Breuer’s alleged lack of knowledge as to the underlying reasoning for the extension of the cutout impacts her opinions and testimony related to traffic safety.
For similar reasons, the Court rejected Defendant Keeley’s argument that Breuer lacked knowledge to provide expert opinion as to the failure to inform the Illinois Department of Transportation about the cutout extension. Undoubtedly, if Defendant Keeley possesses evidence tending to demonstrate that the engineer in question was informed of the extension, they are free to use that evidence to challenge Breuer’s opinion that there is no evidence the engineer was informed.
c. Methodology
Defendant Keeley challenged: (1) Breuer’s use of photogrammetry to form her opinion as to the extension of the cutout; and (2) her failure to look at other factors that may have contributed to the incident.
Breuer’s report first describes the site and the accident. It then lays out the purpose and utility of temporary traffic control measures before discussing the hazard created by the extension of the cutout. Breuer references numerous resources and evidence discussing/specifying what temporary traffic control occurred in this case and what was required under the applicable plans and standards. Her report then outlines the responsibilities the Defendants failed to follow for proper temporary traffic control. Finally, her report lists seven findings related to the traffic hazard at issue and the failure to take appropriate actions to protect drivers from it.
To the extent Defendant Keeley has even challenged Breuer’s overall methodology, the Court is not persuaded. Breuer’s report provides sufficient context, explains and relies on applicable standards and plans, and analyzes Defendant Keeley’s alleged deviation from those requirements to reach her opinions. In other words, Breuer arrived at her opinions with appropriate soundness and care.
Moreover, regarding the specific photogrammetry challenge Defendant Keeley has raised, the Court found that such an approach was permissible because it satisfies the reliability requirements specified in Daubert.
Additionally, the Court is not persuaded by Defendant Keeley’s argument that Breuer’s methodology was inadequate because she failed to use the same methodology to “determine Plaintiff’s lane positioning” or “the width of other cutouts in the construction zone.” If Defendant Keeley wanted an expert to opine on Plaintiff’s lane positioning or the adequacy of temporary traffic controls for other cutouts in the area, it should have retained its own expert to conduct that analysis.
d. Breuer’s Report is Relevant and Will Assist the Trier of Fact
Defendant avers that Breuer’s report and opinions are unreliable, provide little to no independent investigation, and can readily be observed through evidence in the record (and underlying standards and specifications cited therein). The Court did not find any of these arguments convincing.
The Court need not rehash its prior finding that Breuer’s methodology was reliable. It was. Likewise, that methodology demonstrates that Breuer provided ample independent investigation. In fact, the Court found it curious that Defendant Keeley challenged Breuer’s use of, among other things, photogrammetry, while also claiming that she provided no useful independent analysis. Regardless, the Court found that Breuer’s report relied upon useful, independent analysis of temporary traffic control standards and compliance. Moreover, contrary to Defendant Keeley’s argument, the Court did not believe that the pictures and other evidence in the record adequately establish whether traffic control measures were appropriately followed. In addition, contrary to Defendant’s assertions, such a topic is not within the purview of the average juror.
Held
The Court denied Defendant Keeley & Sons, Inc.’s Daubert motions seeking to exclude the testimony of Michelle Albers, Dr. Richard Bowman, and Dr. Helena Breuer.
Key Takeaway
Medical professionals have long been expected to rely on the opinions of other medical professionals in forming their opinions. This is particularly true in the area of life care planning because it would be virtually impossible to find an expert life care planner who was qualified to opine on every distinct type of underlying injury.
In December 2020, Diana Dyer “was surgically implanted with an Aris™ Trans-Obturator Sling System (hereinafter the ‘Aris’), a pelvic mesh product and medical device designed, manufactured, and marketed by Defendants,” which “was intended to treat pelvic organ prolapse and stress urinary incontinence.”
Dyer claimed that she “has suffered, and continues to suffer, debilitating injuries” “as a result of being surgically implanted with Defendants’ unreasonably dangerous defective pelvic mesh device.”
Dyer retained as a general and specific causation expert Dr. Neeraj Kohli, “an active surgeon, teacher, entrepreneur, inventor, lecturer, and researcher.” Coloplast sought to exclude the opinions of Kohli.
Gynecology Expert Witness
Dr. Neeraj Kohli is a board certified Ob/Gyn and fellowship trained urogynecologist practicing strictly in the field of Urogynecology and Reconstructive Pelvic Surgery since 1997.
Kohli has extensive experience with pelvic repair surgery of all types with and without biologic or synthetic materials.
Kohli offered the following general causation opinions: (1) the “inherent properties of polypropylene mesh make it an unsuitable material for placement in the transobturator space,” (2) the Aris is “defective in its technique and [its] material design,” (3) the Aris “has an unacceptably high rate of mesh exposure/erosion, dyspareunia, and chronic pain complications,” (4) the Aris’s IFU “and brochure warnings were inadequate to allow physicians to make responsible treatment choices and allow patients to give proper informed consent,” (5) Coloplast did not perform adequate safety testing on the Aris and failed to warn about known “complications related to transobturator mesh placement,” (6) there “are safer alternatives that are equally or more effective” than the Aris, and (7) the risks of the Aris outweigh its benefits.
As to specific causation, Kohli opined that the “vaginal/groin pain and persistent [overactive bladder]/incontinence suffered by Dyer is the direct result of the defects described throughout this report.”
Analysis
Coloplast challenged the reliability of Kohli’s specific causation opinions. Coloplast also argued that many of Kohli’s general causation opinions are unreliable, unhelpful, or irrelevant. Finally, Coloplast contended that the Court should exclude Kohli’s opinions “stating legal standards, conclusions, and terms of art, as well as opinions about Coloplast’s knowledge, state of mind, or conduct.”
A. Kohli’s Case-Specific Opinions
Coloplast argued that Kohli’s case-specific opinions are not reliable because he based his differential diagnosis on a cherry-picked selection of medical records and did not adequately rule out alternative possible causes of Dyer’s injuries. The Court is not persuaded.
Coloplast argued that Kohli’s specific causation opinions are unreliable because he: (1) failed to adequately consider medical records that did not support his opinion, (2) only reviewed the medical records provided to him by Dyer’s counsel, and (3) did not conduct a pelvic exam of Dyer. None of the alleged factual discrepancies or mischaracterizations warrant excluding Kohli’s opinions.
Coloplast also argued that Kohli’s differential diagnosis is unreliable because he did not adequately rule out alternative possible causes of Dyer’s injuries. The Court disagreed.
Kohli “ruled in the mesh as a primary cause because Dyer’s pelvic pain symptoms began . . .immediately after mesh implantation and are unique to mesh placement in the vagina and particularly the Aris” transobturator sling.” Kohli also noted that Dyer “has no significant medical, surgical, or social history or risk factors contributing to her present mesh complication symptoms or current pelvic floor complaints.”
Coloplast argued that Kohli failed to adequately rule out lumbar disc and sacroiliac joint issues, sciatica, and surgical positioning as being sources of Dyer’s pelvic pain. However, Kohli explained that he ruled out lumbar disc involvement as it typically would not cause the symptoms experienced by Dyer immediately following mesh implantation and as post-surgical therapies to the lumbar area were not effective. With respect to sacroiliac joint issues and sciatica, Coloplast did not challenge Kohli’s assertion that Dyer denied suffering from such problems prior to the mesh implantation.
As a result, the Court found Kohli’s methodology regarding the cause of Dyer’s pelvic pain sufficiently reliable.
B. Kohli’s General Causation Opinions
1. Surgical Technique
Kohli opined that the Aris “was defective in its technique and it[s] material design. This includes blind insertion of a permanent device through the transobturator space, through and in close proximity to vital anatomic structures including muscles and nerves.”
Coloplast argued that “Kohli’s criticisms about the Aris’ transobturator approach amount to no more than personal opinions on a particular surgical technique, which does not speak to a ‘defect’ in the Aris that resulted in injury,” and, therefore, are irrelevant. The Court disagreed.
A comparison of the risks associated with implanting in the transobturator region as opposed to the retropubic region is relevant to the defect analysis because the location of the device within the body and the method of insertion are inherent attributes of the device’s design. Accordingly, the Court held that Kohli’s opinions regarding the transobturator approach are not irrelevant.
Coloplast further argued that “Kohli’s blind placement opinion is also divorced from any scientifically reliable methodology.” The Court is not persuaded. Here, Coloplast has not demonstrated that there is too great an analytical gap between the studies Kohli cited and his opinion.
2. Defective Design
Kohli opined that “the inherent properties of polypropylene mesh make it an unsuitable material for placement in the transobturator space. . . . This is especially true of the Coloplast mesh given its increased weight and stiffness.”
Coloplast argued that the Court should exclude Kohli’s opinion that the Aris is defectively designed because “Kohli does not provide support for his opinions on Aris’ design properties or that the Aris is unsuitable for use in the transobturator space.” However, Kohli cited multiple scientific articles to support his opinions regarding the properties of polypropylene mesh and its unsuitability for use in the transobturator space. Accordingly, Coloplast has not demonstrated that Kohli’s opinions are unreliable.
Coloplast further argued that Kohli’s opinions are unhelpful to the jury because Kohli “fails to provide a measuring stick for assessing the propriety of Aris’s specifications, and instead advances a ‘trust me, I’m a doctor’ approach.”
To succeed on any of her claims, Dyer must prove that the Aris “is defective or unreasonably dangerous.” Kohli explained the basis for his opinion that the properties of polypropylene mesh make it unsuitable for use in the transobturator space and cites to multiple scientific studies.
Kohli’s opinion logically advances a material aspect of Dyer’s case: whether the Aris is defective or unreasonably dangerous. This information is “beyond the understanding of the average lay person.”
3. Unacceptably High Rate of Complications
Kohli opined that the Aris “has an unacceptably high rate of mesh exposure/erosion, dyspareunia, and chronic pain complications.”
Coloplast argued that Kohli’s opinion is unreliable because “Kohli identified no methodology (much less a reliable one) for determining what constitutes an acceptable versus ‘unacceptably high’ rate of complications.”
Kohli did not identify the alleged complication rate of the Aris or explain the scientific basis for his opinion that the Aris’ rate is “unacceptably high.” Accordingly, the Court found that Kohli’s opinion on this issue is unreliable and is excluded.
4. Safer Alternatives
Kohli opined that “the Burch procedure, autologous fascial slings, and appropriate retropubic slings are safer than the Aris.”
Coloplast argued that Kohli’s opinions regarding the Burch procedure and autologous fascial slings are irrelevant as they are not safer alternative product designs for a transobturator sling but are “entirely different surgeries.” The Court disagreed. Kohli’s opinions regarding safer alternative procedures are relevant to the question of whether the risks of the Aris outweigh the benefits.
Alternatively, Coloplast argued that Kohli’s opinions are unreliable. The Court is not persuaded.
Coloplast further argued that “Kohli’s ‘safer alternative’ opinions about polypropylene retropubic slings and PVDF mid-urethral slings are unreliable.” The Court disagreed.
Coloplast’s challenge to “the sufficiency of scientific literature on which” Kohli relies “is a matter that more properly goes to the weight of the evidence and can be probed during cross-examination.”
Coloplast also argued that Kohli’s opinions regarding PVDF mesh mid-urethral slings should be excluded because such slings are not available in the United States. Under Florida law, “a Plaintiff need not demonstrate the existence of a reasonable alternative design for a strict liability design defect claim.” Accordingly, the fact that PVDF mid-urethral slings were not available in the United States at the time of Dyer’s surgery did not render Kohli’s opinion irrelevant in this case.
The Court found that Kohli’s opinions on PVDF mid-urethral slings are relevant to the issue of whether “alternative safer designs exist.”
5. Inadequate Safety Testing
Kohli opined that Coloplast failed to perform adequate safety testing on the Aris. Coloplast argued that Kohli is unqualified to opine on the matter and, alternatively, that his opinion is unreliable.
Although Kohli is the chief medical officer of a medical device company, there is no indication that he has experience in testing medical devices. Accordingly, the Court found that Kohli is not qualified to testify as to the adequacy of Coloplast’s safety testing.
In any event, even if Kohli were qualified to opine on the adequacy of the safety testing, Kohli has not offered any support for his conclusory opinion that Coloplast “rushed to market with Aris to avoid loss of market share without adequate safety testing.”
6. Deficient IFU
Kohli opined that the Aris’ Instructions for Use (“IFU”) “were inadequate to allow physicians to make responsible treatment choices and allow patients to give proper informed consent.”
Coloplast argued that Kohli is not qualified to render an opinion on the IFU and, in any event, that Kohli has not provided any “basis for reaching the conclusion that the purported inadequacy of Aris’s IFU renders the device ‘not reasonably safe’ or makes it ‘impossible’ for implanting physicians to obtain informed consent.”
The Court found Kohli qualified to opine on the adequacy of the Aris’ IFU as, in addition to his surgical experience, Kohli “assists in the drafting and editing of IFUs” at a medical device company.
However, Kohli did not provide an adequate basis for, or a reliable methodology used, in reaching his conclusions that the inadequacy of the instructions and warnings renders Aris ‘not reasonably safe’ and made it ‘impossible’ to obtain informed consent.
7. Legal Conclusions, Summaries, and Opinions on Coloplast’s Knowledge, Intent, or State of Mind
Finally, Coloplast asked the Court to exclude Kohli’s opinions to the extent they contain impermissible legal conclusions, summaries, and speculation on Coloplast’s corporate intent, knowledge, or state of mind.
The Court held that Kohli will not be permitted to testify as to the knowledge, state of mind, or corporate intent of [Coloplast] or summarize corporate documents but will be allowed to testify as to his review of the corporate documents solely for the purpose of explaining the basis of his opinions. Kohli was also not precluded from offering testimony that uses terms that do not have a separate, distinct, and specialized meaning in the law.
Held
The Court granted in part and denied in part Defendant Coloplast Corp.’s motion to exclude the testimony of Neeraj Kohli, M.D.
Key Takeaway
Experience as a surgeon alone does not translate into experience with or knowledge about the appropriate testing a medical device manufacturer should undertake when preparing a product for the market.
Plaintiff Rickey Martin is a Florida resident who purchased corrective contact lenses from Defendant Lens.com’s website on five separate occasions between January and October, 2021.
When making these online purchases, Plaintiff alleged that Lens.com charged him an undisclosed, unreasonable, and unlawful processing fee in violation of Florida’s Unfair and Deceptive Trade Practices Act (the “FUDTPA”).
Plaintiff further alleged that Lens.com advertised one price for its contact lenses but charged 50% more than the advertised price at checkout. According to Plaintiff, purchasers can only recoup the additional 50% charge by completing a mail-in rebate which is disclosed at checkout for the first time.
Plaintiff also alleged that Lens.com charged Florida customers “Taxes and Fees,” even though the State of Florida exempts contact lens purchases from sales tax.
Plaintiff thus sought to represent a class of “all Florida residents and consumers who, within the applicable statute of limitations preceding the filing of this action to the date of class certification, purchased products from Defendant and paid a charge labeled “Taxes & Fees” (known to Defendant as a “Processing” fee).” Lens.com denied that its “Taxes and Fees” are deceptive charges in violation of the FDUTPA.
Lens.com proffered the testimony of four retained expert witnesses: (1) Joshua Gifford; (2) Mark T. Keegan; (3) Peter Kent; and (4) Michele Jowdy. Plaintiff filed a consolidated motion to strike Defendant Lens.com, Inc.’s expert witnesses under Daubert.
Accounting Expert Witness
Joshua J. Gifford is a Certified Public Accountant, Accredited in Business Valuation by the AICPA and is a Certified Fraud Examiner. He has spent the majority of his career performing business valuations for litigation purposes in construction, engineering, retail, wholesale, professional services and agriculture related industries.
Gifford also has experience in forensic investigations, lost profits and economic damages analyses, and bankruptcy related tax work.
Mark Thomas Keegan has over 24 years of experience conducting consumer survey research. Over the course of his career, he has personally conducted over 1,000 consumer surveys reaching more than 250,000 consumers.
Keegan maintains a number of professional certifications and memberships that are directly related to his work as an expert in marketing and consumer research. He is a graduate of the University of Georgia’s Principles of Market Research Program, a professional certification program for marketing industry professionals covering all aspects of the survey research process. He is also a Professional Certified Marketer (PCM), an American Marketing Association certification conferred upon individuals who have demonstrated a mastery of comprehensive and core marketing knowledge and principles.
Peter Kent is an e-commerce and SEO (“Search Engine Optimization”) consultant who provides online e-commerce strategies to companies seeking to improve their business online. He has written many books about the Internet and technology in general.
Kent has been working with computer technology since early 1979 and has extensive experience in the e-commerce arena.
Gifford proffers his opinion, from an accounting perspective, that Lens.com’s “‘Taxes and Fees’ description is generic indicating there are a broad range of activities being covered by the charge.” In sum, Gifford opined on the “meaning and connotation of the ‘Taxes and Fees’ description from a financial or business perspective.”
B. Mark Keegan
Keegan’s study of 459 relevant consumers shows that most consumers understand the pricing presented during Lens.com’s online purchase checkout process and are not deceived or confused by Lens.com’s representations.
C. Peter Kent
According to Kent, customers are generally driven by price. Some customers seeking the best price for their contact lenses are benefitting from a low overall price from online sellers like Lens.com, even after the additional fee is added at the end of the transaction.
D. Michele Jowdy
Jowdy compared Lens.com’s final prices (inclusive of all applicable fees and rebates) to the final prices of Lens.com’s competitors. Jowdy also compared Lens.com’s price to the average price for 16 different brand-name contact lenses. Although Jowdy does not proffer an opinion, her report seems designed to show a jury that Lens.com charges a competitive final price for its prescription contact lenses.
Analysis
Plaintiff contended that offering their expert opinion is an improper attempt to “reframe this lawsuit as a dispute about overcharging, price comparison, consumer confusion, or industry norms,” when the case is instead about whether Lens.com’s “Taxes and Fees” are deceptive or misleading to the reasonable consumer in violation of the FDUTPA.
Plaintiff observed that Lens.com’s “four experts share the same flaw: each is directed at a substitute issue that would distract the jury from the only one that matters,” i.e., whether the net impression of Lens.com’s “Taxes and Fees” is misleading to the reasonable consumer under the circumstances, which deception caused Plaintiff actual damage. The Court agreed with Plaintiff on this point and goes one step further. All four experts improperly intrude into the province of the jury.
The testimony of Gifford, Kent, and Keegan constitute opinion on whether reasonable consumers would find Lens.com’s “Taxes and Fees” deceptive. Clearly, that is an issue (perhaps the critical issue) for the fact finder, not an expert.
The jury did not need an expert to assist its factual determination of whether the net impression of Lens.com’s “Taxes and Fees” is objectively misleading to the reasonable consumer. Nor did a jury need an expert to opine as to whether Plaintiff suffered actual damages by paying those charges.
Held
The Court granted the Plaintiff’s consolidated motion to strike Defendant Lens.com, Inc.’s expert witnesses, Joshua Gifford, Mark Keegan, Peter Kent, and Michele Jowdy.
Key Takeaway
In this case, Lens.com’s proffered expert opinions would not only not assist the trier of fact, they would affirmatively confuse the jury. The Court is disinclined to allow experts, even qualified, reliable, and helpful ones, to supplant and interfere with the jury’s role in this kind of case.
Plaintiff Brigid “Bridie” Farrell alleged that Defendant Gabel groomed and sexually abused her from June 1997 to January 1998, when she was 15 and Gabel was 33. Plaintiff was a competitive short-track speedskater in the 1990s and 2000s.
Defendant United States Olympic and Paralympic Committee (“USOPC”) filed a motion to exclude the testimony of Plaintiff’s expert, Dr. Paul Ballas, pursuant to Rule 702 of the Federal Rules of Evidence.
Psychiatry Expert Witness
Dr. Paul A. Ballas is a trained psychiatrist with board certifications in child, adolescent, and adult psychiatry.
Ballas completed an internship, psychiatry residency and child and adolescent psychiatry fellowship at Thomas Jefferson University Hospital in Philadelphia. Ballas has treated over 1,000 children and adults with psychiatric and mental illness related to sexual abuse.
Specifically, USOPC requested that the Court exclude Ballas from testifying about the following:
(1) his causation opinions, namely, that “Farrell experienced the onset of severe psychiatric symptoms following the sexual abuse that occurred from 1997-1998” and that “Farrell developed a depressive disorder in addition to PTSD as a consequence of the serious trauma inflicted upon her by Andy Gable [sic] from 1997-1998.”
(2) his vocational functioning opinions, namely, that “the sexual and emotional abuse that occurred from 1997-1998 had an impact on Plaintiff’s future ability to function in her employment capacity.”
(3) his opinions regarding Plaintiff’s past and future medical costs attributable to the alleged abuse.
A. Defendant USOPC’s motion to exclude parts of Paul Ballas’ expert testimony
(a) Causation opinion
Ballas opined that Plaintiff developed psychiatric symptoms because of Defendant Gabel’s alleged abuse. USOPC took issue with this causation opinion, arguing that, “given the lack of any evidence or data suggesting that Plaintiff’s psychiatric symptoms developed immediately after her alleged abuse by Defendant Gabel, Ballas’ opinion that there was a clear demarcation of symptoms before and after the alleged abuse — and thus that the alleged abuse caused Farrell’s psychiatric symptoms and conditions — is speculative and should be excluded.”
However, the Court found that, even if this was a flaw in Ballas’ reasoning or methodology, this flaw is not “‘large enough that Ballas lacks good grounds for his conclusions.’”
Moreover, the Court concluded that Ballas’ opinion that, because of a traumatic experience as a child, Plaintiff later in life developed psychiatric conditions that did not exist prior to the traumatic experience is not the type of testimony which “is speculative or conjectural.”
USOPC also criticized the reliability of Ballas’ report by arguing that his “failure to consider and rule out other likely causes of Plaintiff’s alleged injuries constitutes an independent and additional reason to exclude his causation opinions.”
However, Ballas did acknowledge other traumas in his report. Ballas explained that, although other traumatic incidents have occurred, the abuse by Defendant Gabel was the first, making it the “index event” in causing Plaintiff’s trauma.
Ballas also reviewed Farrell’s medical records and medical history, along with the medical records of her treating psychiatrist, Dr. Eleni Maloutas. USOPC took issue with the Ballas’ report to the extent that Ballas relied on Maloutas’ conclusions. However, an expert’s reliance on a Plaintiff’s treatment record will not bar this expert’s testimony from being admitted.
The Court concluded that the methodology that Ballas used to reach his conclusions about the cause of Plaintiff’s psychological injuries is reasonable.
Ballas opined that Plaintiff’s “ongoing symptoms are clearly affecting her relationships and vocational functioning.”
Ballas opined that, “in his opinion, the sexual and emotional abuse that occurred from 1997-1998 had an impact on Plaintiff’s future ability to function in her employment capacity, since her PTSD, anxiety, and depressive symptoms were directly related to this abuse.”
Ballas, a trained psychiatrist, opined that the severe psychological symptoms Plaintiff is experiencing impacted her ability to function in her career. This application of Ballas’ training and experience does not contain a “flaw in his reasoning or methodology that is large enough that he lacks good ground for his conclusions.”
Accordingly, the Court found that Ballas’ opinion regarding Plaintiff’s vocational capacity is reliable.
(c) Ballas’ medical cost opinions
USOPC contended that, although Ballas purportedly calculated Plaintiff’s medical costs stemming from the alleged abuse, his methods for calculating those costs are unreliable and should not be considered.
With regard to the issue of past medical costs, Ballas estimates that “the financial cost of Plaintiff’s therapy and psychiatric visits since 2014 was approximately $40,000.”
In this case, Ballas’ estimate of past medical expenses is not reliable. Plaintiff’s past expenses stemming from the alleged abuse can be calculated with specificity based on her actual treatment records. There is no need for an expert to estimate what those costs were. Furthermore, Ballas’ estimate of past treatment costs is unreliable because it includes costs that Plaintiff never incurred because, during certain periods, she received no treatment and, thus did not incur any costs. Therefore, the Court found that Ballas may not testify about Plaintiff’s past medical costs because any such testimony would be neither reliable nor necessary.
With regard to future medical expenses, Ballas opined that Plaintiff will require mental health treatment “for at least an additional 40 years.” In this case, Ballas has not provided any information that suggests that he is qualified to testify about an individual’s life expectancy or that he has any actuarial experience. Therefore, the Court found that Ballas lacked the base level qualifications that Rule 702 requires to opine on Plaintiff’s life expectancy.
Furthermore, the Court found that Ballas is qualified to testify regarding his opinion on Plaintiff’s yearly medical costs. The Court also found that Ballas’ opinion regarding Plaintiff’s future medical costs is relevant because it will assist the trier of fact in calculating any damages to which it concludes Plaintiff is entitled.
B. Defendant USOPC’s motion to strike Ballas’ May 30, 2024 Declaration
USOPC contended that the declaration of Ballas that Plaintiff filed in support of her opposition to its motion to exclude Ballas’ testimony contains new opinions asserted after the close of discovery and contains improper legal arguments.
The Court has reviewed the information contained in Ballas’ May 30, 2024 declaration and finds that it is related to the initial Ballas report. For example, in this declaration, Ballas reaffirms much of what he has already stated or is responding to USOPC’s criticisms of his report.
Furthermore, the Court found that USOPC’s argument that Ballas is making improper legal arguments in his May 30, 2024 declaration is without merit. In all the paragraphs that USOPC cited as alleging impermissible legal arguments, no such arguments are made. Rather, Ballas is permissibly responding to the criticisms of his expert report that USOPC made in its motion to exclude those reports.
Held
The Court granted in part and denied in part Defendant USOPC’s motion to exclude the expert testimony of Dr. Paul Ballas.
Key Takeaway
When determining whether to admit expert testimony, a court must consider the qualifications of an expert to testify as to a particular matter. Ballas has not provided any information that suggests that he is qualified to testify about an individual’s life expectancy.
Please refer to the blog previously published about this case:
This matter arises from damage to Plaintiffs Jacob and Suzanne Kuehn’s home caused by a water loss in December 2023.
The Kuehns sued Safeco Insurance Company of America (“Safeco”) alleging breach of contract, violation of the Consumer Protection Act (“CPA”), bad faith, and violation of the Insurance Fair Conduct Act (“IFCA”).
In advance of trial, Plaintiffs identified construction expert David Zaborowski while Defendant disclosed two rebuttal expert witnesses: construction rebuttal witness Nathan George and claims-handling rebuttal witness Joseph Hampton.
Plaintiffs filed a motion to exclude the testimony of both George and Hampton while Defendant sought to exclude the testimony of Zaborowski.
Construction Expert Witnesses
David Zaborowski has 23 years of experience in the insurance restoration industry as a general contractor. He specializes in property insurance estimating and appraisal work.
Nathan T. George is an active contractor with 25 years of continuous hands-on experience gained through both his carpentry work in the field and his involvement in running a successful restoration construction company.
Joseph D. Hampton is a retired attorney with 40 years of experience in insurance law, representing both insurers and insureds and provides expert testimony on insurance law, including contractual and extracontractual liability and claim handling.
(1) Hampton’s Testimony About the Remodeling Project
Plaintiffs argued that Hampton’s assertions that their remodeling project would have occurred even absent the December 18, 2023, water damage are not based on sufficient facts and rely on speculation.
Defendant and Hampton pointed to a series of Plaintiffs’ email correspondence to support the assertion that the remodel was planned before the water damages, but all of the referenced communications occurred after the date of water damage. The Court agreed with Plaintiffs that communications with potential vendors starting in 2024 (ranging from approximately one to over eight months after the loss date) are not a basis to opine that Plaintiffs intended to remodel their kitchen in 2023.
(2) Hampton’s Testimony About the Cabinets
Plaintiffs argued that Hampton’s testimony that Plaintiff Jacob Kuehn “did an honorable thing” by removing cabinet costs and must have concluded the policy did not cover them, must be excluded because it is unsupported speculation.
Defendant did not assert that Hampton offered rebuttal when he opined that Plaintiff Jacob Kuehn’s actions were “honorable,” and that he must have concluded the cabinets were not covered by the insurance policy. Moreover, Plaintiffs are correct that Hampton conceded that he does not know why Plaintiff Jacob Kuehn removed the cabinet estimate. Therefore, the Court agreed that Hampton is offering speculative testimony, which must be excluded.
(3) Hampton’s Testimony About Xactimate Pricing
Plaintiffs asserted that Hampton’s testimony about Plaintiffs’ use of Xactimate pricing from September 2025 is unreliable because Hampton “admitted that he does not have the qualifications to go ‘line by line through an Xactimate estimate, deconstruct it, analyze it, and come up with his own opinions,’” and that “such work falls ‘within someone else’s expertise and purview.’”
However, Hampton critiqued the use of Xactimate from September 2025, because the insurance policy requires repair costs to be determined “shortly following the loss,” which, in this case, was in December 2023. The Court held that Hampton’s opinion is reliable because he bases it off the insurance policy and Zaborowski’s report. Any critique of Hampton’s inability to go line by line through the estimate goes to the weight of the evidence he presents and is for the jury to decide.
(4) Hampton’s Testimony About the Insurance Fair Conduct Act (“IFCA”) Letter
Plaintiffs argued that the Court should exclude Hampton’s testimony about the IFCA notice because it offered improper rebuttal, improper legal conclusions, and is barred by Federal Rule of Evidence 408.
First, Plaintiffs asserted that “Hampton opined that Plaintiffs’ IFCA notice letter was sent ‘simply to enable an IFCA suit.’” While Hampton will not be allowed to speculate as to Plaintiff’s motivation for sending the letter, the Court held that Hampton’s opinion on this subject constitutes proper rebuttal.
Second, the Court found that Hampton’s testimony about the IFCA is almost entirely devoid of legal conclusions, with the exception of one opinion that must be excluded. Hampton asserted that Plaintiffs were not inviting negotiation because “the sole purpose of an IFCA notice letter is to enable a later suit pursuant to the IFCA,” rather than offering an opinion that, based on his experience handling claims, letters of this nature are not used to invite negotiations.
In his rationale for his opinion that the opposing expert is wrong that Defendant did not negotiate in good faith, Hampton is essentially concluding that the law rebuts opposing testimony.
(5) The Scope of Hampton’s Testimony
Plaintiffs sought to exclude testimony from Hampton that they argued “exceeded permissible expert boundaries” because they offered opinions on the reasonableness of conduct and legal conclusions. The Court partly agreed.
(a) Reasonableness and Case Law Conclusions
Regarding coverage for the kitchen cabinets, Hampton opined, “That part of the damaged building was the lower cabinets, not the entire set. It is a reasonable claim handling practice, and permitted in Washington, to determine the extent of damage to property, and only pay for repair or replacement of the actually damaged portion where the policy language permits such allocation.”
There are two issues with the proffered opinion. First, it deems the claim-handling practice “reasonable,” which opined on the ultimate issue of the reasonableness of Defendant’s conduct and is not allowed. Second, the statement offered a legal conclusion—namely, that Washington law permits Defendants to only pay for the damaged cabinets, but not the upper, undamaged cabinets—which is also not allowed.
However, Hampton can still testify as to generally accepted claims-handling practices in relation to the cabinets.
Hampton opined that “it is not unreasonable for a field adjuster to schedule an inspection a mere five days after initial contact” and later stated that “it is common for an insured’s contractor’s estimate to lack the details necessary for a reasonable ‘apples to apples’ comparative analysis of the competing estimates.”
Hampton can testify about what the common practice is or about typical scheduling timelines, but he cannot offer an opinion as to the reasonableness of such acts.
Regarding the IFCA letter that Plaintiffs sent, Hampton’s opinions that “no reasonable person” would accept the terms in the letter, and that the letter was not an attempt to “open a reasonable settlement discussion” offer conclusory opinions on the ultimate issue as to whether Defendant acted in bad faith. As such, they are not allowed.
The remainder of Hampton’s opinions are allowed, as they are based on his experience in legal practice and handling claims.
(b) Legal Landscape in Washington
Plaintiffs argued that Hampton’s statements referring to the legal landscape in Washington should be excluded.
Although Hampton goes on to cite the Revised Code of Washington, the Washington Administrative Code, and a Washington Supreme Court case, this testimony is based on his experience handling insurance claims.
(c) Statutory Law
Similarly, Plaintiffs argued that certain assertions Hampton made should be excluded because they make legal conclusions based on “statutory law.” The Court disagreed.
Although Hampton mentioned the Revised Code of Washington, but this is in reference to the basis of Hampton’s opinion that “the sole purpose of an IFCA notice letter is to enable a later suit pursuant to the IFCA,” meaning that Plaintiffs were not “inviting a discussion to amicably resolve a dispute.”
(d) Breach of Contract
Hampton stated, “the opposing expert says that industry standards require an insurer as part of paying to replace damaged property with like kind and quality to replace undamaged property if necessary to achieve a uniform appearance when replacing damaged property, unless there is clear policy language to the contrary.”
The report goes on to rebut the opposing expert’s assertions by stating that “Here, there is policy language to the contrary, and the allocation is allowed.” Accordingly, this testimony does not offer a legal conclusion.
(e) Catchall
Finally, Plaintiffs sought to exclude all remaining testimony from Hampton. Plaintiffs base this request on the assertion that “because so much of his testimony is excluded under the rules, Hampton’s remaining opinions are unhelpful and inadmissible.”
Because the Court denied many of Plaintiffs’ requests and found that Hampton’s testimony would still be helpful, the request to exclude the remainder of Hampton’s testimony was denied.
b. Nathan George
Plaintiffs argued that George’s opinions are not grounded in sufficient facts, reflect unsupported assumptions, lack reliable application, and exceed the permissible scope of rebuttal testimony.
(a) George never visited Plaintiffs’ propertyand instead relied on photos
First, Plaintiffs argued that because George never visited Plaintiffs’ property and instead relied on photos taken after the mitigation work, his opinions are not grounded in sufficient facts or data. However, an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.
(b) George’s conclusions regarding damage to the subfloor are unsupported assumptions, not reliable analysis
Next, Plaintiffs argued that George’s conclusions regarding damage to the subfloor are unsupported assumptions, not reliable analysis. George made it clear that his opinion regarding mold on the floors and treatment are based off his years’ long knowledge, as well as his annual re-review, of the Environmental Protection Agency (“EPA”) Guidelines.
Additionally, Plaintiffs argued that because George did not review Defendant’s estimate and instead relied on Plaintiffs’ expert’s description, George did not reliably apply any methodology to facts. But, George offered the opinion that, despite Zaborowski’s issue with the method, Defendant’s decision to combine the sketch of the kitchen and dining room, label it all as “kitchen,” and aggregate the square footage is proper and does not change the result. This opinion is developed from his extensive experience writing estimates based off square footage for flooring. It is standard rebuttal testimony because he responds directly to an opinion that Plaintiffs’ expert provided.
(c) George’s opinion as to what would have caused damaged subfloorshould be excluded
Plaintiffs argued that George’s opinion as to what would have caused damaged subfloor, and how he evaluated whether the subfloors were damaged, should be excluded. However, Zaborowski’s opinion was that it was necessary to remove the subfloor. As part of George’s rebuttal testimony, it is only logical for him to explain why he believes it is not necessary, which includes an explanation as to why, in his professional experience, he did not believe the subfloor was damaged.
(d) George’s reliance on EPA standards for mold remediation is not rebuttal testimony
Lastly, Plaintiffs argued that George’s reliance on EPA standards for mold remediation is not rebuttal testimony. But, again, in order to explain why he disagrees with Zaborowski’s conclusion, George has to be able to explain why. And the basis for his opinion as to mold on floors is based off his years’ long knowledge, as well as his annual re-review of the EPA guidelines.
c. David Zaborowski
Defendant argued that Zaborowski’s testimony is not reliable because it is not based on sufficient facts or data. In support, Defendant points to the following: the insurance policy agreement, Plaintiff Jacob Kuehn’s repair cost range, the fact that Zaborowski gave his estimate roughly a year after the house was repaired and did not consider the actual costs paid, and the fact that he included costs that were not ultimately in the final repair cost. But Zaborowski made it clear that he is “tasked to consider what [Plaintiffs] should have been paid on the claim, not what they paid to have the repairs done.”
And a central issue in this case is whether Defendant acted reasonably and in good faith when asked to pay for the repairs to Plaintiffs’ home. Those questions must be viewed through the lens of what was reasonably owed at the time of denial.
Moreover, what Defendant omits in its brief, and does not respond to in its reply, is that Zaborowski used the Xactimate software to calculate repair costs—software that George uses “all the time,” and which Hampton states estimators “typically” use.
Zaborowski’s methodology is sound, and the Court is more concerned with that than with the correctness of his conclusion.
Given that the Court found Zaborowski’s methods reliable, any questions as to his total estimate and reasons for arriving at the final number go to the weight of his credibility. They can be tested through cross-examination and are for the jury to decide.
Rule 403 Challenge
Defendant argued that Zaborowski’s testimony is prejudicial and will confuse the jury. Defendant may disagree that some of the line items in Zaborowski’s estimate should not have been included, but Zaborowski was tasked with determining what Defendant should have paid Plaintiffs, not what they did pay them. Ultimately, this is a dispute that should be decided by the jury.
Moreover, this testimony will not mislead the jury, as Defendant will have the opportunity to point out any line items that were not in the actual repair cost, and Zaborowski will be able to explain why he believes they should have been—a concept that is not overly complicated for a jury to decipher.
Held
The Court granted in part and denied in part Plaintiffs’ motion to exclude Joseph Hampton’s and Nathan George’s testimony.
The Court denied Defendant’s motion to exclude David Zaborowski’s testimony.
Key Takeaway
Reliability requires the court to assess whether an expert’s testimony has a reliable basis in the knowledge and experience of the relevant discipline. In making its reliability determination, a court is concerned with the soundness of the methodology, not with the correctness of the expert’s conclusions.
Case Details:
Case Caption:
Kuehn V. Safeco Insurance Company Of America
Docket Number:
2:24cv1785
Court Name:
United States District Court for the Western District of Washington
This case involves a contract dispute between the Douglas and Amy Mottram and Robert Radke. Prior to 2018, the Mottrams entered into four joint ventures with Radke, in which Radke would buy land in California, on which the Mottrams would construct homes to be resold for mutual profit. Beginning in 2018, the Mottrams and Radke decided to pursue a similar strategy in Kauai, purchasing two plots of land (“Lot C” and “Lot D”) using funds from both parties. The parties did not enter into a written contract for this Kauai joint venture, and, perhaps predictably, its exact nature and terms are in dispute.
What is clear is that by 2023, the business relationship between the Mottrams and Radke had disintegrated due to, inter alia, conflict over the division of profits from Lot D, personal usage of the Kauai properties, and the Mottrams’ alleged siphoning of funds for a separate project with a third-party. On March 17, 2026, the Mottrams filed the instant motion, asserting that the Court should disqualify Radke’s proffered expert witness, Ross R. Murakami, on the grounds that his expert opinions failed to meet the standards of Federal Rule of Evidence 702.
Accounting Expert Witness
Ross R. Murakami has extensive experience in the real estate, construction, government, insurance, distribution, and retail industries, with over thirty-five years of experience providing audit, accounting, and consulting services to organizations based in Hawai‘i and the Pacific Basin and on the West Coast.
The Mottrams argued that Murakami’s expert report relied in part on information provided during settlement negotiations in violation of Rule 408.
The Mottrams argued that the portions of Murakami’s report that rely upon the spreadsheet, namely Tables 7, 8, and 14 of Section III, should be excluded under Rule 408.
Rule 408 is clear in stating that “a statement made during compromise negotiations” cannot be used to “prove or disprove the validity or amount of a disputed claim.” Rule 408 is clear in stating that “a statement made during compromise negotiations” cannot be used to “prove or disprove the validity or amount of a disputed claim.” The spreadsheet, prepared and provided as it was for the purposes of settlement, and used by Murakami to support his damages opinions, is unambiguously protected by Rule 408.
During oral argument, Radke’s counsel proposed that Murakami be permitted to amend the portions of his report that rely on the spreadsheet. The Court declines to open that window. Put simply, a party is not entitled to correct a problem of their own making, particularly one so glaring as a violation of Rule 408.
II. Insufficient Facts
The Mottrams next argued that Murakami’s opinions should be excluded because he relied upon inaccurate interpretations of the record. The Mottrams claimed that those opinions failed to account for contradictory facts in the record and instead relied on mere assumptions provided by Radke’s counsel; therefore, they are not based on sufficient facts and data.
The Court takes no position as to whether the Mottrams are correct in arguing that there is evidence contradicting Murakami’s opinions, precisely because doing so at this time is unnecessary and contrary to the Court’s assigned role.
III. Reliability
The Mottrams argued that Murakami was unable to identify or utilize any reliable accounting standards or authorities supporting his methods.
Radke, on the other hand, argued that Murakami abided by professional standards in his analysis and that, beyond this, the field of forensic accounting does not have a single, uniform methodology to which he should have adhered.
To begin, the Court agreed with Radke that Murakami’s expert opinions are not rooted in scientific evidence, given that forensic accounting is a specialized field in which factors like error rates or peer review are not accepted indicators of reliability.
Accordingly, the focus of the reliability inquiry “depends heavily on the knowledge and expertise of the expert, rather than the methodology or theory behind it.”
The Court is not convinced, however, by the Mottrams’ arguments. The Mottrams go too far in asserting that Murakami’s deposition testimony is proof of a lacking methodology. Murakami testified that there was not a single “professional standard” for calculating certain figures in his analysis, but-as Radke argued-that is merely a result of forensic accounting not having universal, scientific standards in the same way as other fields of expertise.
Finally, the Mottrams also asserted that Murakami did not apply his methodology reliably because “Radke’s counsel instructed Murakami to assume that Radke’s share of the profits should be based on his share of capital contributions,” which the Mottrams argue was a flawed understanding of the case. Again, however, whether to exclude an expert does not depend on the “correctness of the expert’s conclusions,” and Murakami’s reliance on an assumption provided by counsel did not offer a basis to find he applied his methodology unreliably.
The Court found that Murakami’s expert opinions have demonstrated sufficient reliability, and the Mottrams’ motion to disqualify on those grounds is denied.
Held
The Court granted in part and denied in part the Mottrams’ motion to disqualify expert witness, Ross Murakami.
Key Takeaway
While Rule 703 permits experts some leeway in basing their opinions on inadmissible evidence, courts have determined that it cannot be used to admit evidence excluded by Rule 408.
