Expert Witness Profiler

Tag: Reliable

  • Law Enforcement Expert’s Testimony on the Unique Overdose Risk of Fentanyl Excluded

    Law Enforcement Expert’s Testimony on the Unique Overdose Risk of Fentanyl Excluded

    David James Michael Jensen is charged in an eight-count Superseding Indictment with five counts of Unlawful Possession of a Firearm, one count of Possession of Controlled Substances with Intent to Distribute (methamphetamine and fentanyl), one count of Carrying a Firearm During and in Relation to a Drug Trafficking Crime, and one count of Possession of Fentanyl with Intent to Distribute for events that occurred on five separate dates.

    The Government provided Jensen’s counsel with notice of potential expert testimony by Homeland Security Investigations Supervisory Special Agent Marco Dkane about criminal practices with respect to drugs and guns to be presented at trial. 

    Jensen filed a motion requesting the exclusion of testimony from Dkane about common methods and practices of drug dealers.

    Law Enforcement Expert Witness

    Agent Marco Dkane is a twenty-two year veteran of Homeland Security Investigations (“HSI”) with the United States Department of Homeland Security.

    His duties as a supervisory special agent include serving as Task Force Commander of a High Intensity Drug Trafficking Area Task Force, supervising investigative activities of narcotics agents and detectives from numerous agencies, instructing HSI investigators in narcotics investigations, and serving as a witness relating to drug trafficking method and trends. His investigative duties include conducting investigations of fentanyl, counterfeit pharmaceuticals, heroin, methamphetamine, cocaine, and MDMA (ecstasy) trafficking. 

    He has also served as an instructor for both local and national law enforcement training on counterfeit medications, contraband/narcotics, investigative techniques, and Organized Crime Drug Enforcement Task Forces.  Dkane has been involved in the investigation of transnational criminal organizations and drug trafficking organizations. He has served as an expert witness in jury trials where his testimony included explaining the practices of drug traffickers.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Marco Dkane’s expert testimony. 

    Discussion by the Court

    Rule 702 Challenge

    1. Relevance

    a. General Relevance Challenge

    Jensen challenged the expert testimony proffered by the Government because he asserted that this case involved no complex illegal activities that require expert guidance. However, the Ninth Circuit has repeatedly allowed expert testimony regarding modus operandi in cases where defendants have been charged with possession with intent to distribute drugs or possession of a firearm in furtherance of a drug trafficking crime, as Jensen is charged in this case. 

    The Court found that Dkane’s testimony is generally relevant and will help the jury understand the evidence or determine a fact in issue. 

    b. Specific Relevance Challenges

    (1) Matters of “Common Knowledge” to Jurors

    Jensen asserted that parts of Dkane’s proffered opinions are “matters of common knowledge familiar to jurors,” “at least for those who have read a newspaper, seen a movie, or watched television since 1960 or so.”

    In this case, the Government proffered that Dkane will testify about the difference between distribution and user amounts of drugs and provide other details relevant to the distribution counts.

    During a search incident to arrest on April 7, 2022, officers found over $1,000 in low-denomination bills on Jensen, and a search of his vehicle found weapons and a safe containing 528 fentanyl pills, 75 grams of methamphetamine, and 22 grams of heroin in the trunk of a vehicle he had accessed moments earlier. The Government asserted that the jury is entitled to hear Dkane’s opinion as to, for example, whether 400 pills is a distributor’s or user’s quantity of fentanyl possession, information that is beyond the common knowledge of most individuals. The Court agreed that this type of information “supplements lay understandings about drug dealing and is a far cry from what is commonly known.”

    (2) Types of Controlled Substances and Drug Use

    Jensen asserted that the proffered opinion regarding the types of controlled substances largely consists of facts that “are both unassailable and immaterial to any issue in the case. . . . Fascinating, I suppose, in a Discovery Channel documentary way, but wholly unconnected with the facts of this case.” The Government responded that Jensen’s argument ignored the fact that he was found with the drugs that will be discussed by Dkane during the charged events. Some background testimony will be admissible to provide context to the Government’s case and may also help explain distributor’s or user’s quantity of the drugs. The Court found that testimony about types of controlled substances and how drugs are used is relevant.

    However, the Court agreed with Jensen that Dkane’s testimony regarding harm to users or society generally, such as the unique overdose risk of fentanyl, is not relevant.

    (3) Common Slang Terms

    Jensen asserted that Dkane’s testimony regarding common slang terms and codes for controlled substances is unnecessary as none of the words at issue are uttered in this case. The Government acknowledged that this testimony is likely unnecessary in this case and it does not plan to introduce this testimony. The Court agreed that this testimony seems irrelevant in this case.

    (4) Legal Opinions

    Jensen asserted that certain opinions—such as whether fentanyl is a controlled substance—call for a legal conclusion that is for the Court and not the jury.

    The Government responded that ” Dkane’s testimony that various drugs are controlled substances, while containing within it a legal conclusion, is obviously necessary as a predicate fact to explain why drug dealers do or not do certain things.” The Court agreed with the Government. Further, it appeared that Jensen is not contesting that the drugs at issue in this case are controlled substances under federal law as he has agreed to a jury instruction on to this effect. 

    (5) Testimony Regarding “In Furtherance Requirement”

    Jensen asserted that admission of expert testimony on whether a firearm was possessed in furtherance of the charged drug trafficking would violate Rule 702.

    However, the Government will not be relying solely on the expert testimony to establish that Defendant possessed a firearm in furtherance of a drug trafficking crime, but also intended to introduce evidence of the proximity, accessibility, and location of the firearms in relation to the locus of the drug activities.

    2. Reliability

    As a preliminary matter, the Court noted that Jensen did not challenge Dkane’s qualifications as an expert, nor did he dispute that Dkane has specialized knowledge on the topics of types of controlled substances or common characteristics of drug trafficking or drug traffickers and has based his opinions on that knowledge.

    The Court found that the combined aspects of Dkane’s background, training and experience clearly meet the requirements of Federal Rule of Evidence 702 and qualify him to testify as an expert in the field of drug trafficking generally based upon his knowledge, skill, experience, training, and education.

    Rule 403 Challenge

    1. General Prejudice

    Jensen asserted that “[g]eneral expert testimony regarding common methods and practices of drug dealers should be excluded because it gives rise to unfair prejudicial inferences that outweigh the limited probative value of the evidence.” While the Court is cognizant of the dangers raised by Jensen, the risk that unfair prejudice will actually materialize is not so high that it substantially outweighs the probative value of Dkane’s testimony.

    2. Specific Prejudice

    a. Comment on a Defendant’s Mental State

    Jensen correctly asserted that a witness is not allowed to state an expert opinion or inference about whether the Defendant did or did not have a mental state or condition that constitutes an element of the crime charged.

    Therefore, the Court granted Jensen’s motion but only as to excluding testimony by an expert as to whether the Defendant did or did not have a mental state or condition that constitutes an element of the crime charged.

    b. Fentanyl addiction and deaths

    Jensen argued that Dkane’s testimony concerning the addictive nature of fentanyl, the deaths it has caused, and the societal devastation resulting from its use did not prove the elements of the charged offense and created a substantial risk of prejudice. 

    The Court agreed that testimony regarding fentanyl statistics or death toll would be more prejudicial than probative and will exclude such testimony.

    The Court will limit the Government to eliciting testimony on the dangers of fentanyl as related to drug trafficking practices and as explanatory information related to law enforcement’s handling of the investigation and the seized drugs. 

    c. Testimony regarding types of controlled substances

    Jensen asserted that evidence about where the overwhelming majority of drugs trafficked in Washington are made, the fact that the drugs are usually smuggled into the United States through states other than Washington, and how they are transported to other localities are “wholly unconnected with the facts of this case.” The Court agreed that this type of evidence, while perhaps marginally relevant, is ultimately more prejudicial than probative.

    Therefore, the Court granted Jensen’s request to exclude this type of testimony pursuant to Rule 403.

    Held

    The Court granted in part and denied in part the Defendant’s motion to exclude the testimony from Marco Dkane.

    Key Takeaway:

    An expert’s opinion may overlap with the jurors’ own experiences or cover matters that are within the average juror’s comprehension, so long as the expert uses some kind of specialized knowledge to place the litigated events into context. Therefore, Dkane’s testimony about the difference between distribution and user amounts of drugs and other details relevant to the distribution is relevant.

    Case Details:

    Case Caption: United States V. Jensen
    Docket Number: 2:24cr204
    Court Name: United States District Court, Washington Western
    Order Date: August 28, 2025
  • Neurology Expert’s Testimony on Postoperative Complications Excluded

    Neurology Expert’s Testimony on Postoperative Complications Excluded

    This medical malpractice action is brought by Gladys Torres-Correa (“Plaintiff”) against Instituto de Ojos y Piel, Inc. and Dr. Miguel Santiago García, along with several unnamed insurers. After undergoing ophthalmic surgery performed by Defendants, Plaintiff allegedly developed a series of complications. 

    Consequently, Plaintiff claimed that those complications were caused by Defendants’ negligence. To prove her claims, Plaintiff intended to introduce at trial the expert witness testimony of Dr. José A. Rodríguez Robles.

    However, Defendants requested that the Court deem Rodríguez’s proffered testimony inadmissible.

    Neurology Expert Witness

    Dr. José Antonio Rodríguez Robles is a neurologist with extensive experience in alternative medicine.

    He did his doctorate in medicine and surgery at Ponce Health Sciences University.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding José Rodríguez Robles’ expert testimony.  

    Discussion by the Court

    Defendants provided four reasons to exclude the testimony of Rodríguez. First, Defendants argued that Rodríguez is unqualified to offer expert opinions regarding the medical issues in this case, given that he is not an ophthalmologist, has no formal training in the field, and has never performed the surgeries Plaintiff received in this case. Second, Defendants asserted that Rodríguez has failed to adequately describe what he believes to be the applicable standard of care in this case. Third, Defendants contended that Rodríguez’s proffered testimony regarding causation is wholly conclusory and “outcome driven.” Finally, Defendants asserted that “Rodríguez’s report and his deposition testimony are devoid of any clinical evidence, specific findings or medical literature to support” his opinion.

    In the first report, Rodríguez listed the medical records he reviewed, described Plaintiff’s then-current symptoms, provided a diagnosis of Plaintiff’s condition, and made general reference to three scientific publications. However, the first report did not define the “adequate standard of care” or the “proper precautions” that Rodríguez believed were not observed by Defendants.

    The second report also summarized information contained in the first report, and included citations to ten legal and scientific references that Rodríguez consulted in forming his opinion, three of which were also included in the first report. At no point, however, does either report ever attempt to explain how the opinion of Rodríguez was informed by or related to any of the referenced scholarship.

    Rodríguez Fails to Identify the Applicable Standard of Care

    Rodríguez failed to provide any such evidence of a national standard of care, and Plaintiff openly conceded that fact.

    The deposition testimony of Rodríguez did not cure these deficiencies. Wherever Rodríguez was asked a direct and concrete question regarding the applicable standard of care during the deposition, he failed to articulate the relevant standard in any meaningful detail. 

    The Court held that these analytical gaps implicate the reliability of the proffered expert testimony, as Rodríguez provided no reasoned or detailed basis for the conclusions adopted in his reports. Furthermore, the absence of any reliable opinion testimony regarding the applicable standard of care also compromises the relevance of the proffered testimony.

    Rodríguez Failed to Provide Support for the Conclusion that Defendants Deviated from an Applicable Standard of Care, or that any such Deviation caused Plaintiff’s Injuries

    Even if Rodríguez had articulated an applicable standard of care, the proffered testimony still failed to provide a reasoned basis for the conclusion that Defendants breached any such applicable standard of care.

    In characterizing the opinion of Rodríguez as “outcome driven, as opposed to causation driven,” Defendants argued that Rodríguez improperly relied on the mere fact that Plaintiff sustained an injury to reach the conclusion that Defendants were negligent. The Court agreed. The opinion proffered by Rodríguez is entirely conclusory, as he failed to provide any substantive explanation of the “proper procedures” or the preferred surgical “technique” that allegedly went unheeded by Defendants. Nor did he ever explain how any such unstated acts or omissions caused Plaintiff to experience postoperative complications.

    When urged during the deposition to cite any evidence supporting the conclusion that Plaintiff’s injuries were caused by Defendants’ negligence, Rodríguez explained that his opinion was simply based on the fact that Plaintiff had sustained injuries. However, by indicating that Plaintiff’s injuries could have occurred even in the absence of any negligence, Rodríguez deposition testimony appears to undermine his own conclusory opinion that Defendants must have been negligent.

    Rodríguez Failed to Explain his Methodology or Provide Adequate Data to Support his Opinions

    In this case, the Court observed a significant analytical gap between the scientific literature cited by Rodríguez and the conclusory opinions articulated in his report.

    In the reports, Rodríguez made general reference to eight publications relating to matters of ophthalmology, as well as two publications regarding “legal and ethical issues in medical malpractice.”

    Yet the reports never provided any analysis whatsoever to explain the relationship between the sources cited in the reports and the conclusions drawn by Rodríguez. None of the conclusions reached by Rodríguez cite directly to any scientific literature; the sources in question are simply appended to the end of the reports without any internal citations or further explanation. The reports never quote any of the cited sources, never summarize their findings, and never describe what, if any, data was drawn from the cited scholarship. To determine whether the citations provide any support for the proffered opinion of Rodríguez would require pure speculation where, for instance, Rodríguez made general reference to a nearly 1000-page textbook without any further explanation of how he relied on that scholarship.

    Held

    The Court granted the Defendants’ motion to exclude the testimony of Dr. José A. Rodríguez Robles.

    Key Takeaway:

    In performing its gatekeeping function, the Court must determine whether the proffered expert opinion is “supported by an accepted methodology that is based on substantial scientific, technical, or other specialized knowledge.” The Court will not admit expert testimony that lacks “good grounds”: the admissibility of expert witness testimony is contingent upon whether the expert establishes “a valid scientific connection” between the data on which they have relied and the “pertinent inquiry” at issue in the case.

    In this case, there is a yawning “analytic gap” between the scientific literature cited by Rodríguez and the conclusory opinions articulated in his report.

    Case Details:

    Case Caption: Torres-Correa V. Instituto De Ojos Y Piel, Inc
    Docket Number: 3:23cv1025
    Court Name: United States District Court for the District of Puerto Rico
    Order Date: August 27, 2025
  • Road Safety Expert’s Testimony on Disability Discrimination Admitted

    Road Safety Expert’s Testimony on Disability Discrimination Admitted

    Plaintiff Gabriel Brandon Garzaa, a current part-time preloader and temporary cover driver, sued United Parcel Service Inc., alleging disability discrimination based on its failure to promote him or provide reasonable accommodations because of his disability. Garza asserted that UPS’ refusal to hire Garza in a Driver position is based on UPS’ written policy against hiring any person with a DOT hearing exemption as a Driver.

    Plaintiff retained Dr. Jamie Dow as an expert to testify in support of their case and rebut these defenses. Defendant filed a motion to exclude the expert testimony of Dow.

    Road Safety Expert Witness

    Dr. Jamie Dow has developed a world-wide reputation as an expert on medical fitness-to-drive standards over the past twenty years.

    He also conducted research on the effects of medical conditions on crash risk using a database containing complete medical and road safety records for 4.94 million Quebec drivers of whom 500 000 were commercial drivers.

    He was the chair of the Medical Advisory Committee of the Canadian Council of Motor Transport Administrators (CCMTA) and of the sub-committee on Medical Advisory Boards and Licensing at the US Transportation Research Board.

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

    Discussion by the Court

    Dow’s opinion focused on whether there is a correlation between hearing impairment and the risk of motor vehicle crash. Dow’s opinion supported Plaintiff’s position that Defendant’s decision not to promote Plaintiff was based on discrimination and not safety concerns. It also rebutted Defendant’s business necessity defense.

    Defendant argues that Dow’s opinions are irrelevant and will not assist the trier of fact because they are “contrary to findings the [Federal Motor Carrier Safety Administration (“FMCSA”)] made in the 1970s.” However, Defendant’s argument ignored the last 55 years in which the FMCSA has amended its findings and regulations regarding hearing impaired drivers. Dow’s opinion merely confirms the FMCSA’s own current research and findings.

    The Court held that Dow’s opinion is based on sufficient facts and data. Along with his extensive background, Dow relied on the numerous documents and peer reviewed articles listed in his expert report. 

    Held

    The Court denied the Defendant’s motion to exclude the testimony of Jamie Dow.

    Key Takeaway:

    Dow’s testimony is the product of reliable principles and methods in his field. Dow’s opinion reflects a reliable application of the principles and methods to the facts of the case.

    Case Details:

    Case Caption: Garza V. United Parcel Service, Inc.
    Docket Number: 1:23cv97
    Court Name: United States District Court for the Southern District of Texas, Brownsville Division
    Order Date: July 17, 2025
  • Marketing Expert’s Testimony on Review Hijacking Limited

    Marketing Expert’s Testimony on Review Hijacking Limited

    The present action stems from Plaintiff ML Products, Inc. (“ML Products”) and Defendants BillionTree Technology USA, Inc. (“BillionTree”) and Mountain Peak, Inc. (“Mountain Peak,” collectively, “Defendants”) competing for sales on Amazon.com where Defendants allegedly employed fraudulent tactics. Specifically, ML Products asserted claims of violations of the Lanham Act, false advertising, and unfair competition against Defendants.

    On April 12, 2024, Professor Brett Hollenbeck, ML Products’ affirmative technical expert, produced an expert report on his analysis of “the tactics related to online reviews used by certain competitors of ML Products, including BillionTree and its [alleged] affiliates.”

    Broadly, Hollenbeck opined that 22 of the 29 products sold by BillionTree and its alleged affiliates engaged in review hijacking—inappropriately linking a different product’s reviews to the given product on Amazon and misrepresenting the product as having more positive reviews; reviewers of nine of the products complained that the seller sent them emails requesting them to change negative reviews into positive ones in exchange for payment; and by manipulating and falsifying product ratings, BillionTree increased its visibility and sales on Amazon, misled customers, and lowered the visibility of its competitors, thereby harming ML Products.

    Defendants filed a motion to exclude the testimony of Hollenbeck.

    Marketing Expert Witness

    Prof. Brett Hollenbeck is an Associate Professor of Marketing at the UCLA Anderson School of Management in Los Angeles, California. His educational background includes a Bachelor of Science in Economics and a Bachelor of Arts in Political Science, both from the George Washington University, a Masters in Economics from the University of Texas at Austin and a Ph.D. in
    Economics from the University of Texas at Austin.

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

    Discussion by the Court

    1. The Expert Report is Compliant with Rule 26(a)

    Defendants argued that ML Products failed to disclose the facts and data—specifically, the Amazon information—considered by Hollenbeck in forming his opinion. Defendants further argued that ML Products’ failure to disclose warrants sanctions under Rule 37.

    The Court did not find that ML Products failed to disclose the facts and data considered by Hollenbeck in forming his opinion. Although Defendants are correct that the Hollenbeck Report must lay out the factual bases for his opinions, the Hollenbeck Report provided the factual bases upon which he formed his opinions as he explored whether BillionTree and its alleged affiliates engaged in product rating manipulation to increase its sales and harm competitors like ML Products.

    For instance, Hollenbeck opined that 22 of the 29 products sold by BillionTree and its alleged affiliates engaged in review hijacking; 9 of the products had reviews where customers were offered gift cards to change negative reviews into positive ones; and BillionTree and its alleged affiliates’ conduct increased their products ratings and hurt the sales of its competitors, including ML Products.

    The Court is not convinced that ML Products’ disclosure prevented Defendants from conducting a meaningful deposition of Hollenbeck, as Defendants have had until August 20, 2025, to submit a rebuttal report and until September 3, 2025, to complete discovery, which is more than sufficient time.

    The Court found that sanctions under Rule 37 is not warranted, as ML Products did not fail to disclose Hollenbeck as an expert witness nor the facts and data supporting his opinions in the Hollenbeck Report.

    2. The Expert Report is Not Improper under FRE 703

    Defendants argued that the Hollenbeck Report should be excluded because it relies on inadmissible hearsay and improperly attempts to establish the truth of its content.

    However, the Court held that Hollenbeck may rely on hearsay as it is reasonably relied upon in the field of marketing academia. Typically, an academic expert in online marketplaces will review comment entries on marketplaces to identify how the products function.  Further, Hollenbeck used the marketplace reviews and applied his expertise to form an independent judgment that BillionTree and its alleged affiliates were engaging in review hijacking, bribing customers to turn negative reviews into positive ones, and manipulating Amazon ratings to boost its sales and diminish competitors’ sales.

    Moreover, the probative value of Hollenbeck’s opinion outweighs its prejudicial effect because it could help a juror to determine certain facts like whether review hijacking, bribing customers for better reviews, and manipulating ratings constitutes an unlawful, unfair, or fraudulent business act or practice. 

    3. The Expert Report Applies Reliable Methods

    Defendants argued that the Hollenbeck Report should be excluded because it lacked analytical rigor, relied on incomplete data, and failed to account for alternative explanations.

    Defendants asserted that, for example, the report did not account for other variables impacting a products’ ranking on Amazon, and that the Hollenbeck Report did not provide evidence supporting its assertion that repurposed reviews misled consumers and caused harm.

    Hollenbeck reviewed product pages and analyzed 29 products. He further declared that he performed an analysis of the reviews and product pages downloaded by applying his skills and expertise from marketing academia.

    The Court found that his understanding and expertise in the area coupled with the general accepted principle that alternative explanations involve weight, not admissibility, are sufficient to assuage Defendants’ concerns of unreliable methodology.

    4. The Expert Report Attempts to Introduce Legal Opinions

    Defendants argued that the Hollenbeck Report repeatedly referred to Defendants’ alleged conduct as illegal according to the Federal Trade Commission, which is an impermissible legal opinion.

    The Court found that some of Hollenbeck’s opinions constituted improper expert opinions.

    In paragraph 9 of his report, Hollenbeck described BillionTree and its alleged affiliates as partaking in review hijacking and opines that “this type of review hijacking is considered illegal by the Federal Trade Commission.” In paragraph 99 of his report, Hollenbeck opined that BillionTree and its alleged affiliates engaged in “harassment and paying for positive reviews which are considered illegal by the Federal Trade Commission.” Interpreting whether conduct constitutes a violation of law regulated by the Federal Trade Commission falls squarely within the Court’s province, as it involves conclusion of law.

      Held

      The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of Brett Hollenbeck.

      Key Takeaway:

      Expert witnesses may rely on inadmissible hearsay in forming their opinions, so long as it is of a type reasonably relied upon by experts in their field. Typically, an academic expert in online marketplaces will review comment entries on marketplaces to identify how the products function. In this case, Hollenbeck used the marketplace reviews and applied his expertise to form an independent judgment that BillionTree and its alleged affiliates were engaging in review hijacking.

      Case Details:

      Case Caption: ML Products Inc. V. Billiontree Technology USA, Inc.
      Docket Number: 2:23cv8626
      Court Name: United States District Court for the Central District of California
      Order Date: August 26, 2025
    1. Geriatrics Expert’s Cause-of-Death Opinion was Deemed Reliable

      Geriatrics Expert’s Cause-of-Death Opinion was Deemed Reliable

      James Dean Bloomer, as the surviving child of decedent James Wright Bloomer; and the Estate of James Wright Bloomer, through James Dean Bloomer Jr. as Administrator of the Estate, brought this action against Defendants HMG Park Manor of Westwood, LLC and HMG Services, LLC.

      Plaintiffs alleged wrongful death and survival claims under Kansas law arising out of decedent James Wright Bloomer’s treatment at a skilled nursing facility, HMG Park Manor of Westwood, LLC d/b/a Tanglewood Nursing and Rehabilitation (“Tanglewood”), located in Topeka, Kansas.

      Plaintiffs filed a Daubert motion to exclude certain opinions of Defendants’ retained expert Jeffrey A. Kerr DO.

      Geriatrics Expert Witness

      Jeffrey A. Kerr has been a physician since 1985 in many hospital settings. He is board certified in family practice, with an added qualification in geriatrics. He is also a certified medical director for long term care. Kerr has been affiliated with several different nursing facilities during most of his tenure as a physician, and he has served as an expert witness in many cases since 2020.

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

      Discussion by the Court

      Plaintiffs asserted that certain opinions of Kerr are made without analysis and are therefore conclusory. Defendants responded that these are two of several opinions that are based on Kerr’s preceding analysis in the report of Bloomer’s medical records for the four years leading up to his death.

      Kerr began his report by listing a multitude of deposition transcripts, exhibits, pleadings, medical records, and other documents he reviewed before rendering his opinions. Also, Kerr considered Bloomer’s extensive medical history and medications, and constructed an exhaustive timeline of his treatment going back to June 16, 2018. 

      The Court found that Kerr’s review of Bloomer’s medical records, in light of his training and experience that focuses on geriatric care, was sufficient for him to offer a reliable opinion on Bloomer’s cause of death. Plaintiffs failed to identify a specific reliability issue in the records Kerr relied on in formulating his opinions.

      To the extent Plaintiffs maintained that there are other facts that Kerr failed to consider, or that the timeline is flawed or missing information, those are matters for cross-examination because they go to the weight of the testimony, not its admissibility. The Court has reviewed the report and found no “great analytical gap between the data and opinion proffered” that would render it unreliable.

      Held

      The Court denied the Daubert motion to exclude certain opinions of the Defendants’ retained expert Jeffrey A. Kerr DO.

      Key Takeaway:

      Kerr was not required to categorically exclude each and every possible alternative cause—to require otherwise would mean that few experts would ever be able to testify. Instead, he was required to provide objective reasons for eliminating alternative causes. Therefore, the Court found that Kerr has provided an objectively reliable basis for his opinion.

      Case Details:

      Case Caption: Bloomer V. HMG Park Manor Of Westwood LLC
      Docket Number: 2:24cv2059
      Court Name: United States District Court, Kansas
      Order Date: August 22, 2025
    2. Packaging Expert’s Testimony on Compression Failure Limited

      Packaging Expert’s Testimony on Compression Failure Limited

      Plaintiff Tricia McFee asserted a negligence claim against Defendant BJ’s Wholesale Club, Inc. (“BJ’s”) under New York law, arising from a slip-and-fall accident in the bottled water display area on August 20, 2020, while she was at a BJ’s club in Brooklyn, New York.

      Defendant filed a motion to exclude the testimony of Sterling Anthony, Plaintiff’s liability expert.

      Packaging Expert Witness

      Sterling Anthony is a certified packaging professional with over fifty years of experience. Anthony has a bachelor’s degree in packaging engineering from Michigan State University, a master’s degree in marketing and finance from Roosevelt University and has taken doctrinal courses in international marketing and logistics from Michigan State University. 

      He has published over two hundred articles in various trade journals related to marketing, packaging, and logistics, and has presented in “dozens” of seminars and conferences in the United States and abroad. Anthony has testified as a marketing, packaging, and logistics expert in depositions or at trials at least nineteen times since 2012.

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

      Discussion by the Court

      Anthony opined that BJ’s knew or should have known that (1) “a slip-and-fall hazard was inherent to its bottled-water section”; (2) “compression is a force that’s inherent to palletized bottled water”; (3) “leakage from just one bottle will spread across a wide area of [the] floor”; (4) “it owes a duty to its invitees to maintain its premises in a safe condition, including against the hazard of slip-and-fall[s]”; (5) “scheduled walkthroughs were necessary, but not sufficient, as a safeguard against slip-and-fall[s] in the bottled-water section”; (6) “there are measures that can be taken to reduce the risk of slip-and-fall in the bottled-water section”; and (7) “it owed its invitees a duty to warn concerning the hazard of slip-and-fall in its bottle-water section.”

      Qualifications

      Defendant argued that Anthony is unqualified because he “lacked the scientific, technical or other specialized knowledge to opine on the liability issues relevant” to Plaintiff’s slip-and-fall.

      Based on Anthony’s significant experience in packaging engineering, the Court found that Anthony has the “knowledge, skill, experience, training, [and] education” required by Rule 702 to offer opinions in this case relating to the packaging of palletized water bottles and the compression caused by their manner of packaging.  

      However, Anthony did not appear to have experience or training in shoe design and products. Because he lacked the qualifications or experience necessary to offer opinions regarding Plaintiff’s shoes, the Court excluded Anthony’s report and proposed testimony regarding whether Plaintiff’s shoes contributed to her fall.

      Reliability and Relevance

      First, Defendant argued that “Anthony failed to perform any testing or analysis of any kind” and that “his rudimentary ‘measurements’ of the unrelated Wellsley Farms water bottles were simply incorrect.”

      Second, Defendant argued that Anthony’s report and findings are unreliable because he “has made no showing whatsoever how his experience led to his conclusions, why that experience is a sufficient basis for his opinions, how that experience has been reliably applied to the facts or whether he performed any measurements or compression testing of any kind.”

      The Court excluded the portions of Anthony’s report and proposed testimony addressing whether Plaintiff’s injuries were caused by the compression failure of water bottles at BJ’s because they are not “based on sufficient facts or data” and did not “reflect a reliable application of the principles and methods to the facts of the case.” As Defendant argued, Anthony’s primary basis for concluding that compression failure led to a leak from the palletized water bottles was his analysis of a package of Wellsley Farms water from a different BJ’s club. It is undisputed that Plaintiff fell in front of the Poland Springs water display, and that the Wellsley Farms and Poland Spring waters were displayed separately.

      Probative Value and Prejudice

      Defendant argued that the Court should preclude Anthony’s testimony under Rule 403 because Anthony’s opinions have no probative value and would be prejudicial.

      Anthony’s report and proposed testimony — specifically, the discussions of the general risks of compression failure in bottled water packaging — is not unduly prejudicial or confusing because knowledge of bottled-water packaging may be probative of the source of the water on which Plaintiff slipped.

      Accordingly, the Court admitted only the portions of Anthony’s report and proposed testimony discussing the general risks of compression failure in bottled water packaging and excluded the portions regarding the causal relationship between the water condition at BJ’s and Plaintiff’s slip-and-fall.

      Held

      The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of Sterling Anthony.

      Key Takeaway:

      Expert testimony is inadmissible under Rule 702 if it is not accompanied by a sufficient factual foundation. Anthony’s opinion regarding whether the water in which Plaintiff slipped resulted from compression failure is not reliable or relevant since it is based on his analysis of Wellsley Farms water and his own assertions that the Wellsley Farms water is representative of other water brands.

      Case Details:

      Case Caption: McFee V. BJ’s Wholesale Club, Inc.
      Docket Number: 1:21cv3087
      Court Name: United States District Court, New York Eastern
      Order Date: August 25, 2025
    3. Architecture Expert’s Testimony Regarding the Mat’s Condition Excluded

      Architecture Expert’s Testimony Regarding the Mat’s Condition Excluded

      In December 2022, Carole Daniel (“Ms. Daniel”) tripped on a floor mat and fell inside a Phenix City, Alabama Dollar General retail store (“Dollar General”). Ms. Daniel suffered injuries and later sued Dolgencorp, LLC (“Dolgencorp”), the corporate entity operating the Dollar General. On June 15, 2024, Ms. Daniel passed away. Ms. Daniel’s husband, Ralph Daniel (“Mr. Daniel”), as Personal Representative of the Estate of Carole Daniel, was substituted as the proper Plaintiff in this action.

      Dolgencorp filed a motion to exclude the expert testimony of Mark E. Williams, which is opposed by Mr. Daniel.

      Architecture Expert Witness

      Mark Elan Williams is an Alabama licensed architect, with more than thirty years of experience. He is licensed in multiple states throughout the Southeast and is certified by the National Council of Architectural Registration Boards.

      To learn about other cases where Mark E. Williams has been involved as an expert witness, order an Expert Witness Profile report.

      Discussion by the Court

      To begin with, Williams reviewed several pieces of evidence, in forming his expert opinion, including: (1) December 2, 2022 surveillance footage of Ms. Daniel’s fall; (2) the pertinent Customer Incident Report; (3) Dolgencorp’s “Safety Orientation Training Module” ; (4) industry standards; (5) Dolgencorp’s Standard Operating Procedure (“SOP”) Manual; and (6) five January 31, 2023 photographs taken by Ms. Daniel’s sister, Becky Coreno (“Ms. Coreno”). He did not personally examine the specific mat involved in Daniel’s fall, but noted he was familiar with the mat’s manufacturer and its “‘waffle’ pattern of raised squares.”

      Williams concluded, among other things, that the floor mat was a dangerous tripping hazard because: (1) it was “loose-laid” and had raised edges, which caused Ms. Daniel to trip and (2) it was improperly “secured down.” Moreover. Williams added that the “hazards associated with loose-laid floor mats are well documented and have been widely known for many years.”

      In other words, his affidavit concluded that Dolgencorp “violated the standard of care for property maintenance, and created the dangerous condition that caused Ms. Daniel’s fall and injury.”

      Basically, Williams offered expert testimony that Dolgencorp’s floor mat was a dangerous tripping hazard that ultimately caused Daniel to trip and fall.

      Assist the Trier of Fact

      In its role as gatekeeper, the Court is not convinced that Williams’ expert testimony regarding the mat’s condition will assist the jury, considering that his testimony relied on the video footage of Ms. Daniel’s fall.

      The Court found “after reviewing the record evidence, especially the surveillance video . . . that a genuine dispute of material fact exists regarding the condition of the mat, such that a reasonable jury could find in Mr. Daniel’s favor.” However, the Court reached this conclusion without considering Williams’ expert report.

      Moreover, Williams’ opinions could confuse the jury. His expert report found “the failure of Dollar General to provide a floor mat heavy enough not to move or properly secure the mat in place, violates the standard of care for property maintenance, and created the dangerous condition that caused Ms. Daniel’s fall and injury.” The Court held that Williams’ discussion of “standard of care” would at the very least confuse the jury, as “a witness may not testify to the legal implications of conduct; the Court must be the jury’s only source of law.” 

      Held

      The Court granted Dolgencorp’s motion to exclude Mark Williams’ testimony.

      Key Takeaway:

      Daniel failed to show that Williams’ testimony would satisfy Daubert‘s helpfulness prong. The parties’ dispute in this case while important—is simple—whether Ms. Daniel fell because the floor mat “was in a worn condition.” Jurors are capable of using common sense when it evaluates the floor mat’s condition and placement in the surveillance video. 

      Case Details:

      Case Caption: Daniel V. Dolgencorp, LLC
      Docket Number: 3:23cv135
      Court Name: United States District Court for the Middle District of Alabama, Eastern Division
      Order Date: August 22, 2025
    4. Economics Expert’s Testimony on Prime Enrollments and Cancellations Admitted

      Economics Expert’s Testimony on Prime Enrollments and Cancellations Admitted

      The Federal Trade Commission contended that Amazon tricked, coerced, and manipulated consumers into subscribing to Amazon Prime. According to the FTC, this was accomplished by failing to disclose the material terms of the subscription clearly and conspicuously and by failing to obtain the consumers’ informed consent before enrolling them. The FTC also alleged that Amazon did not provide simple mechanisms for subscribers to cancel their Prime memberships. As a result, the FTC sued Amazon.com, Inc. and three of the company’s executives, Neil Lindsay, Russell Grandinetti, and Jamil Ghani.

      The FTC requested that Dr. Neale Mahoney, Ph.D. provide an expert opinion on (1) “Whether Amazon’s Cancellation Survey provides a reliable basis from which to draw inferences regarding the behavior of its customers”; (2) “The extent to which customers were unintentionally enrolled in Amazon Prime, and how much such consumers paid to Amazon in Prime membership fees during their memberships”; and (3) “The extent to which customers attempted to cancel their Amazon Prime memberships and believed that they had done so but did not in fact complete the cancellation process, as well as how much such customers subsequently paid to Amazon in Prime membership fees.”

      The Defendants filed a motion to exclude Mahoney’s expert testimony. They contended that his testimony on unintentional Prime enrollments and cancellations is neither relevant nor reliable.

      Economics Expert Witness

      Dr. Neale Ashok Mahoney, Ph.D. is a Professor of Economics at Stanford University. He received a Ph.D. and M.A. in Economics from Stanford University. And he has taught economics courses at both Stanford University and the University of Chicago’s Booth School of Business.

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

      Discussion by the Court

      Mahoney’s report offered five opinions: First, Amazon’s Cancellation Survey provided a reliable basis to conclude that a significant number of Prime enrollees unintentionally enrolled in Amazon Prime. Second, unintentional enrollments in Amazon Prime through the at-issue “upsells” led to millions of dollars in harm. Third, a significant number of Prime customers who entered Amazon’s cancellation process did not complete the process and continued to pay Prime subscription fees to Amazon. Fourth, Prime benefit usage patterns showed that a significant number of Prime subscribers exited the cancellation process with the mistaken belief that they had cancelled their Prime subscription. Fifth, Prime subscribers who exited the cancellation process with the mistaken belief that they had cancelled their Prime subscriptions led to millions of dollars in harm. 

      Unintentional Enrollment Harm

      Defendants contended that Mahoney’s report is unreliable because it “assumes that the 99.998 percent of customers who intended to enroll in Prime nevertheless suffered some compensable harm because a very small fraction of other customers enrolled unintentionally.” But this argument is based on the misplaced premise that “[t]he FTC must prove its case by a preponderance of the evidence,” so only the 49 out of 2.7 million customers with a prediction score greater than 50 were likely harmed.

      Defendants next argued that “intent to subscribe is a binary choice; a consumer either meant to sign up or they did not.” Yet Defendants provided no evidence or caselaw to support this conclusory assertion.

      Defendants further criticized Mahoney’s analysis because he assumed “all subscribers who answered [the Amazon Cancellation Survey] by choosing ‘did not intend (DNI)’ are unintentional enrollments.” Even though Defendants have conjured up a hypothetical scenario where a subscriber might have selected DNI when they actually intended to sign up for Prime, that does not make Mahoney’s inference unreasonable.

      Defendants’ final argument is that Mahoney failed to consider the benefits that consumers gained from having a Prime subscription.

      Analysis

      However, Mahoney’s analysis logically advances the FTC’s argument that consumers were harmed by unintentional enrollment in Amazon Prime. This analysis will similarly help the factfinder determine facts that are in dispute. Mahoney also used techniques that enjoy wide acceptance in the field of economics and he shows that he appropriately applied these techniques to facts of this case. As a result, the Court found that the FTC has met its burden to establish by a preponderance of the evidence that Mahoney’s unintentional enrollment analysis is both relevant and reliable. The FTC has also met its burden of showing that Mahoney’s analysis is reliable even though it does not account for any potential benefits that a consumer gained from having a Prime subscription.

      Unintentional Cancellation Harm

      Defendants contended that Mahoney’s unintentional cancellation analysis is flawed too. They fault Mahoney for failing to failing to “separate lawful from unlawful conduct.” But the FTC alleged “all Prime subscriptions involve unlawful conduct as Amazon never had Restore Online Shoppers’ Confidence Act-compliant cancellation.” The hypothetical scenarios envisioned by Defendants did not render Mahoney’s analysis unreliable, nor did they show he cannot separate lawful from unlawful conduct. 

      Defendants’ final argument is that Mahoney’s unintentional cancellation analysis is unreliable because it failed to consider the benefits Prime subscribers received when they failed to cancel their memberships. This argument failed for the same reasons it failed for Mahoney’s unintentional enrollment analysis. The FTC alleged that the fraud was in Prime’s cancellation mechanisms, not the value of Prime. Thus, it was appropriate for Mahoney to include the full value of subscribers’ Prime subscription in his analysis.

      Much like his analysis of harm from unintentional enrollments, Mahoney’s unintentional cancellation analysis logically advances the FTC’s argument that consumers were harmed when they mistakenly believed they cancelled their Amazon Prime subscription. This analysis will also help the factfinder determine facts that are in dispute. Mahoney used techniques that enjoy wide acceptance in the field of economics and he shows that he appropriately applied these technique to the facts of this case. As a result, the Court found the FTC met its burden to establish by a preponderance of the evidence that Mahoney’s unintentional cancellation analysis is both relevant and reliable.

      Held

      The Court denied the Defendants’ motion to exclude Neale Mahoney’s testimony.

      Key Takeaway:

      Mahoney used techniques that enjoy wide acceptance in the field of economics and he showed that he appropriately applied these techniques to facts of this case.

      The Court found that the FTC met its burden to establish by a preponderance of the evidence that Mahoney’s unintentional cancellation and enrollment analyses are both relevant and reliable.

      Case Details:

      Case Caption: Federal Trade Commission V. Amazon.Com, Inc., Et Al.
      Docket Number: 2:23cv932
      Court Name: United States District Court for the Western District of Washington
      Order Date: August 22, 2025
    5. Metallurgical Engineering Expert Was Not Allowed to Testify About the “Expected” Performance of Golf Clubs

      Metallurgical Engineering Expert Was Not Allowed to Testify About the “Expected” Performance of Golf Clubs

      This is a products liability action involving a Callaway Rogue X 5 Iron golf club with a True Temper XP95 shaft that fractured. Plaintiff alleged that the shaft cut his finger and broke his index-finger bone on his right hand. It is undisputed that True Sports manufactured the shaft of the Five Iron.

      Joseph P. Crosson and Joseph A. Lemberg were among the experts retained to opine on the Five Iron’s potential defectiveness.

      Crosson, Plaintiff’s engineering expert, testified that based on various markings on the Five Iron, he believed it had been swung multiple times prior to its fracture. True Sports and Callaway filed Daubert motions seeking to exclude various parts of Crosson’s expert testimony.

      Callaway identified Lemberg as an expert engineer, and Lemberg found no evidence of a design or manufacturing defect having caused or contributed to the fracture of the Five Iron. Plaintiff filed a motion in limine to exclude parts of Lemberg’s expert testimony.

      Metallurgical Engineering Expert Witnesses

      Joseph P. Crosson holds both a Bachelor of Science and Master of Science in metallurgical engineering and has been conducting root cause failure analysis investigations for several decades.

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

      Joseph Aaron Lemberg is a licensed metallurgical engineer specializing in failure analysis, fracture mechanics, metallurgy, and materials science engineering with a particular emphasis on understanding the fracture behavior of materials.

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

      Discussion by the Court

      A. True Sports and Callaway’s Motions to Exclude Crosson’s Testimony

      True Sports filed a motion to exclude Crosson’s testimony that the fracture occurred during a normal golf swing and was not the result of misuse or abuse, arguing his opinion is unreliable and irrelevant. Callaway filed a motion to exclude Crosson’s opinion that he would not expect a golf club to fracture during a normal golf swing because Crosson is not qualified to render opinions about a club’s expected performance, and his opinion is a backdoor attempt to bring in a “res ipsa” opinion that is both unreliable and irrelevant. Plaintiff opposed both motions, arguing Crosson is qualified to speak on both matters and his analysis was based on reliable processes and methodologies.

      1. Crosson’s Opinion that the Fracture Occurred During a Normal Golf Swing

      True Sports contended that Crosson’s testimony stating the fracture occurred during a normal golf swing and was not the result of misuse or abuse is both unreliable and irrelevant because it is a speculative conclusion not based on any scientific analysis and therefore does not assist the trier of fact.

      The Court found Crosson’s testimony that the fracture occurred during a normal golf swing is sufficiently reliable. He represented that in examining the Five Iron, he relied on his experience and visual and photographic examinations of the Five Iron, a metallographic analysis, Vickers microhardness testing, and a compositional analysis. 

      In assessing the causal nature of the Five Iron’s condition, Crosson relied on its physical appearance, personal experience, and the angles of the abrasions and transferred materials. Specifically, Crosson testified that the perpendicular angles of the markings on the Five Iron suggested they were incurred during a normal swing, and the nature of the deformity in the shaft was consistent with a single event overstress fracture. Because Crosson relied on his experience in root cause analysis, the angular nature of the abrasions, and other deformities on the Five Iron to form his opinion that the club fractured during a normal swing, the Court held that his opinion is sufficiently reliable and assists the trier of fact. 

      2. Crosson’s Opinion that He Would Not Expect a Golf Club to Fracture During a Normal Golf Swing

      Callaway argued Crosson’s opinion that he would not expect a properly designed and manufactured golf club to fracture during a normal golf swing should be excluded.

      While Crosson admittedly is not an expert in golf club design or manufacturing, his area of expertise includes evaluating and conducting root cause failure analyses of metallic components. As such, the Court held that his expertise in metal component failures makes him sufficiently qualified to offer an expert opinion as to the expected performance and durability of a metal shaft on a golf club.

      Callaway also argued that, even if Crosson is qualified, his res ipsa-flavored opinion should be excluded because he points to no data, tests, or measurements in reaching the conclusion that a non-defective club would not fracture during a normal swing, and, as such, this opinion is unreliable.

      Plaintiff again relied on Crosson’s extensive visual examination of the abrasions and strike marks to argue this opinion is sufficiently reliable. However, Plaintiff failed to explain how a visual examination of this specific Five Iron informs his expectations about golf club performance generally. Moreover, Crosson admitted he could not render an opinion as to the Five Iron’s design or golf club design generally, nor did he calculate the Five Iron’s load bearing capacity or know the industry standard load bearing capacity. 

      Callaway further argued this opinion should be excluded because it requires “a large analytical leap” and therefore did not satisfy Daubert‘s “fit” test. The Court held that this conclusion, seemingly based solely on Crosson’s experience as a recreational golfer, did not assist the trier of fact or offer anything other than the type of speculation that is more appropriate for Plaintiff’s closing argument.

      B. Plaintiff’s Motion to Exclude Lemberg’s Testimony

      Lemberg opined that misuse, mishandling, or abuse of the subject club cannot be ruled out as a cause of the shaft fracture.

      Lemberg relied on largely the same scientific methodologies as Plaintiff’s expert, Crosson, which the Court found herein to be sufficiently reliable. And Lemberg’s opinion, based on scientific examinations and analyses, assisted the trier of fact by explaining how various features of the Five Iron – such as the unknown red material, dirt, scuff marks, misalignments, and the shaft’s deformity – are consistent with misuse or abuse.

      Lemberg’s second opinion with which Plaintiff takes issue stated: “My examination of available shaft remnants did not reveal any evidence of shaft design or manufacturing defects that could be partially or wholly responsible for the fracture of the shaft.” Plaintiff argued that this opinion is unreliable because it contradicted Lemberg’s statement in his deposition that the Five Iron’s misalignment and deformity could have been introduced during the manufacturing and design processes.

      In his deposition, Lemberg consistently stated that his inspection of the Five Iron showed it met True Sports’ specifications and he found nothing wrong with its material properties, nor did he find any metallurgical defects.
      He later was able to review the inspection processes in place and confirmed that if the deformity was introduced during manufacturing, it would have been caught during inspection, rendering him able to narrow the window of time in which it could have been introduced.

      Held

      • The Court denied True Sports’ motion to exclude the testimony of Joseph Crosson.
      • The Court granted Callaway’s motion to exclude Crosson’s opinion that a properly designed and manufactured golf club should not break during the normal course of use.
      • The Court denied Plaintiff’s motion in limine to exclude the opinions of Joseph Lemberg.

      Key Takeaway:

      While directly contradicting opinions could raise concern, the Court agreed with Callaway that Plaintiff’s reiteration of Lemberg’s opinions is not wholly accurate. The Court found Lemberg’s opinion that his examination did not reveal any evidence of shaft design or manufacturing defects that could be partially or wholly responsible for the fracture of the shaft sufficiently reliable.

      Case Details:

      Case Caption: Spivey V. Topgolf Callaway Brands, Corp.
      Docket Number: 6:24cv4
      Court Name: United States District Court, Georgia Southern
      Order Date: August 20, 2025
    6. Construction Expert’s Opinions Regarding the Rebuilding Costs Admitted

      Construction Expert’s Opinions Regarding the Rebuilding Costs Admitted

      On March 4, 2023, Plaintiff Jane Randall’s son, Christian Randall, set fire to her home on Lady’s Island in Beaufort, South Carolina. On January 26, 2025, Plaintiff identified David Johnson as an expert general contractor to testify regarding the extent of damage to Plaintiff’s home and the need to demolish and rebuild the property at a cost of approximately $2.2 million. 

      Defendant Allstate Insurance Company argued that Johnson’s opinions regarding the cost of rebuilding Plaintiff’s home are “nothing but speculation, conjecture and a lack of formalized testing.”

      Construction Expert Witness

      David Johnson has over two decades of experience as a licensed general contractor in both North and South Carolina. He has been in the homebuilding construction business since 1971 and has served as a project manager for many residential properties in Beaufort County. As both a licensed realtor and a licensed general contractor, he has extensive experience in assessing property values and damage costs.

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

      Discussion by the Court

      After a careful review of Johnson’s deposition, the arguments of the parties, and Rule 702 standards, the Court found that Johnson’s testimony is sufficiently reliable and would be helpful to the jury if called upon to determine damages in this case. Johnson has sixteen years of experience as a general contractor in the area and has firsthand knowledge of construction costs. He has consulted with an architect and structural engineer and provided an estimate that the rebuilding of the home would cost around $395 per square foot, which is at the low range of square foot costs in the area.

      Johnson’s use of a per square foot metric to estimate rebuilding costs is a reasonable method utilized in his business.

      Defendant accurately noted that the estimate provided by Johnson is not based on final architectural blueprints and that the square foot number he utilized was based on information provided by Plaintiff. These issues go to the weight and not the admissibility of the expert testimony. Defendant will have every opportunity to cross examine Johnson at trial and identify any weaknesses or questions about his opinions.

      The Court found, however, at this point, Plaintiff has carried her burden of showing by a preponderance of the evidence that Johnson’s opinions are sufficiently reliable, based upon reasonable methods, and would be helpful to the jury should damages be an issue at trial.

      Held

      The Court denied the Defendant’s motion to exclude David Johnson as an expert witness under Rule 702.

      Key Takeaway:

      Johnson’s opinions are based on personal experience as a general contractor in the Beaufort County area, consultation with an architect and structural engineer, personal inspection of the fire damaged home, firsthand knowledge of actual costs for construction in the local area, and the use of a cost per square foot metric. 

      Case Details:

      Case Caption: Randall V. Allstate Insurance Company
      Docket Number: 9:24cv4123
      Court Name: United States District Court, South Carolina
      Order Date: July 07, 2025