Expert Witness Profiler

Tag: Reliable

  • Engineering Expert’s Testimony on Metal Roofing Degradation Admitted

    Engineering Expert’s Testimony on Metal Roofing Degradation Admitted

    This case is a breach of good faith and fair dealing and breach of contract due to Defendant CSAA General Insurance Company denying Plaintiff George Richardson’s roof damage claim that occurred on September 23, 2023.

    Defendant filed a Daubert motion to exclude the testimony of Plaintiff’s expert witness, Michael Pruitt.

    Engineering Expert Witness

    Michael Pruitt, P.E. has over 30 years of experience in engineering, code compliance, and construction. He has conducted more than 1,500 forensic investigations. His expertise spans commercial and residential roof inspections, foundation investigations, building envelopes, and structural evaluations.

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

    Discussion by the Court

    Pruitt’s Qualifications

    Although Defendant did not generally challenge the qualifications of Pruitt to testify as an expert, it did argue that at least one of his opinions should be excluded because he does not have any metallurgy expertise. Plaintiff countered that Pruitt is an engineer who serves primarily as an insurance defense expert witness and, in fact, Pruitt has worked for Defendant in the past and is currently involved in one of Defendant’s cases.  Based on Pruitt’s more than 30 years of engineering and construction experience, as well as his extensive forensic investigation experience, the Court concluded that he possessed the necessary skill, experience or knowledge to be qualified to offer the opinions in his report.

    As it specifically relates to his opinion regarding degradation of the metal roofing based on loss of granules, Pruitt offered an explanation supporting his opinion based on the manufacturer’s sales materials.  Nothing about this opinion indicated that Pruitt needed to be a metallurgist to opine on the effects of loss of granules from the roof at hail impact sites, particularly considering the roof manufacturer’s own product material statements.

    Reliable Methodology of Pruitt’s Opinions

    Defendant argued that Pruitt’s opinions lacked a reliable methodology because his opinions were contradicted by the roofing manufacturer’s testing and product materials. Defendant further argued that Pruitt’s opinions were inadmissible because he had conducted no independent testing, and his opinions were not supported by peer-reviewed publications.

    Pruitt set forth his opinions and the basis upon which he arrived at those opinions in his report. In doing so, he documented the observable damage and explained what damage he believed to be hail damage and its severity.

    Much of Defendant’s Daubert Motion appeared to rely not on Pruitt’s report or his opinions expressed therein, but on his responses to deposition questions regarding the roofing materials manufacturer’s product information.

    The fact that Defendant disagreed with Pruitt’s conclusions or believed other evidence contradicted those conclusions was not a basis upon which to exclude Pruitt’s opinions. To the extent Defendant disagreed with Pruitt’s opinions and conclusions, “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof were the traditional and appropriate means of attacking shaky but admissible evidence.”

    Therefore, the Court concluded that Pruitt’s opinions relied on and were based on a sufficiently reliable methodology to be admissible.

    Held

    The Court denied Defendant’s Daubert motion to exclude the testimony of Plaintiff’s expert witness Michael Pruitt. 

    Key Takeaway:

    An expert’s personal experience, training, method of observation and deductive reasoning could be sufficiently reliable to constitute valid methodology. It should be noted that Pruitt’s method did not involve application of any controversial scientific process or theory.

    Case Details:

    Case Caption: Richardson V. CSAA General Insurance Company
    Docket Number: 6:24cv247
    Court Name: United States District Court for the Eastern District of Oklahoma
    Order Date: June 05, 2025
  • Emergency Medicine Expert Barred From Testifying Due to His Admitted Lack of Knowledge

    Emergency Medicine Expert Barred From Testifying Due to His Admitted Lack of Knowledge

    Plaintiff Emilee Bradley sued Defendants BSL Express Trucking, Inc. and Fatkhuddin Kurbonov in Jefferson Circuit Court, alleging various claims arising from an automobile accident involving Bradley and Fatkhuddin Kurbonov. Intervening Plaintiff Shawna Broyles (hereinafter “Broyles”) was a passenger of Plaintiff Bradley’s vehicle.

    Defendants filed a motion to exclude the opinion of Broyles’ proffered expert, Dr. Jules J. Barefoot.

    Defendants asserted that Barefoot’s expert report “is devoid of any meaningful analysis or reasoning” and therefore would not aid the jury with its deliberation of any issues in the case. Additionally, Defendants argued that Barefoot is not qualified to opine regarding Broyles’ dental injuries, scarring, or alleged concussion.

    Emergency Medicine Expert Witness

    Julius Jackson Barefoot is a medical doctor certified in emergency and preventative medicine. In addition, Barefoot is a certified independent medical examiner and has extensive experience evaluating injuries in the litigation context.

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

    Discussion by the Court

    Broyles intended to introduce Barefoot to testify that she suffered injuries from the accident and that “all of the medical care and medical bills [she] incurred . . . were reasonable, necessary, and appropriate for the injuries sustained.”

    The Court agreed with Defendants that Barefoot’s proposed testimony must be excluded. Because Barefoot’s report did not outline his reasoning or methodology, the Court is left to speculate as to whether Barefoot’s opinion “is the product of reliable principles and methods” or whether he has reliably applied those “principles and methods to the facts of the case.” Indeed, Barefoot provided no explanation for his conclusion that Broyles’ medical treatment was appropriate.

    The Court is also not convinced that Barefoot’s testimony would aid the jury. Barefoot’s report largely consisted of a summarization of Broyles’ medical records. And because Barefoot offered only a conclusory statement that Broyles’ treatment was necessary and appropriate, his proposed testimony did nothing to meaningfully “contextualize, analyze, and interpret” this historical information.

    Finally, the Court noted that Barefoot’s report repeatedly stated that he has not evaluated Broyles and that he is unaware of the full extent of her injuries and treatment. Barefoot’s admitted lack of knowledge regarding the full extent of Broyles’ injuries and treatment therefore made it impossible for him to reliably testify in the manner Broyles intended.

    Held

    The Court granted the Defendants’ motion to exclude the opinion of Plaintiffs’ expert Dr. Jules Barefoot.

    Key Takeaway:

    Information presented without any expert analysis or other application of the expert’s expertise generally should come to the jury directly from the sources rather than through the mouth of the expert. In this case, Broyles’ medical history “should come to the jury directly from the sources rather than through the mouth of” Barefoot.

    Case Details:

    Case Caption: Bradley V. BSL Express Trucking, Inc. Et Al
    Docket Number: 3:23cv133
    Court Name: United States District Court, Kentucky Western
    Order Date: August 18, 2025
  • Civil Engineering Expert Employed a Reliable Methodology for Segregating Damages

    Civil Engineering Expert Employed a Reliable Methodology for Segregating Damages

    In this insurance coverage dispute, Plaintiff Will Properties Inc. brought claims against Defendant Century Surety Company for breach of contract, common law bad faith, and violations of the Texas Insurance Code.

    Plaintiff alleged that its exhibition center in Harker Heights, Texas was covered by Defendant’s policy, which included hail and windstorm coverage, from November 1, 2020 to November 1, 2021, and that the property “sustained extensive damage resulting from a severe storm that passed through the Bell County, Texas area” during the policy period.

    Defendant contended that Plaintiff cannot show that its claimed damages resulted from a covered cause of loss because it cannot segregate between damages that occurred during and before the policy period, including in a 2013 storm.

    Moreover, Defendant asked the Court to exclude the opinions of Plaintiff’s expert, Neil B. Hall.

    Civil Engineering Expert Witness

    Neil Bradley Hall is a graduate of City College of New York and a licensed Professional Engineer in Texas, Minnesota, New York, New Jersey, USVI and Mississippi, with over 25 years of professional experience in the practice of engineering. 

    Hall is the owner and principal of Groundtruth Forensics, a consulting firm specializing in building performance, failure analysis and damage assessment.

    Want to know more about the challenges Neil B. Hall has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Defendant contended: “According to the facts that Hall acknowledges, the Property suffered damage from a combination of covered and non-covered causes of loss. Yet nowhere in his written reports or deposition testimony does Hall even attempt to segregate the damage between those two.”

    Therefore, Defendant asserted, “Hall’s opinions do nothing to aid the fact finder and offer no information relevant to a determination of whether or to what extent Will Properties’ roof might have been damaged by a covered cause of loss.”

    In response, Plaintiff emphasized that Defendant did not challenge Hall’s education, qualifications, or methodology. Instead, Plaintiff contended, Defendant misstated the testimony of Hall, who “explained how he segregated damages between the Policy period and those pre-existing the Policy period.” Plaintiff submitted the transcript of Hall’s deposition and his declaration responding to the motion to exclude. In both, Hall explained his efforts to segregate hail damage to Plaintiff’s property by age, including by reviewing storms five years before the reported date of loss and focusing on two hail storms in 2019 and 2020; he also testified that he reviewed information from the 2013 storm.

    The Court, therefore, found that Hall’s opinions are relevant and sufficiently reliable to be considered by the finder of fact, who will be free to consider Hall’s methodology for segregating damages when determining the proper weight to accord his opinions.

    Held

    The Court denied the Defendant Century Surety Company’s motion to strike and exclude the opinions of Neil B. Hall.

    Key Takeaway:

    As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility. Therefore, Defendants’ arguments about the reliability of Hall’s opinions go to the weight properly afforded his testimony, not its admissibility. 

    Case Details:

    Case Caption: Will Properties Inc. V. Century Surety Company
    Docket Number: 1:22cv1072
    Court Name: United States District Court, Texas Western
    Order Date: July 16, 2025

  • Legal Expert Allowed to Testify Despite His Lack of Particularized Expertise

    Legal Expert Allowed to Testify Despite His Lack of Particularized Expertise

    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. The FTC sued Amazon.com, Inc. and three of the company’s executives, Neil Lindsay, Russell Grandinetti, and Jamil Ghani.

    Defendants’ expert James C. Cooper offered opinions on two issues: (1) What a reasonable market participant would have expected, prior to March 2021, was required to comply with Restore Online Shoppers’ Confidence Act (“ROSCA”); and (2) The extent to which the FTC’s allegations in this case are consistent with such reasonable expectations predating March 2021.

    The FTC filed a motion to exclude Cooper’s testimony on three grounds. First, it said that his testimony is irrelevant to whether Defendants violated the FTC Act or ROSCA and the availability of civil penalties. Second, it contended that his methodology is unreliable because he applied his case coding technique inconsistently. Third, it asserted that he offers legal conclusions that are inadmissible under Federal Rule of Evidence 702. 

    Law And Legal Expert Witness

    James Campbell Cooper is a law professor at George Mason University’s Antonin Scalia Law School (ASLS). He has a Ph.D. in economics from Emory University. At ASLS, he teaches courses on the digital economy and consumer protection law; the consumer protection law course covers, among other things, the FTC’s authority to regulate deceptive conduct and FTC disclosure requirements. 

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

    Discussion by the Court

    To generate his opening report, Cooper reviewed complaints and judicial decisions from ROSCA enforcement actions initiated before March 2021, when Amazon received a Civil Investigative Demand from the FTC. He then coded these materials to determine the prevalence of certain allegations in ROSCA enforcement actions. If an element was included in the document, it was coded as a “1” but if an element was not included then it was coded as a “0.” This method purportedly allowed him to calculate the relative frequency of certain allegations and understand the conduct a “reasonable market participant” would expect to violate ROSCA. 

    Cooper found that “the FTC’s allegations against Amazon in this case lay out a new ROSCA standard that represents an unpredictable departure from the standard prior to March 2021 in two ways.” First, he said that the allegations suggested a new standard to “balance” the options to accept or decline an offer to enroll in a subscription service. Second, he said that the FTC’s complaint sets out more stringent standards for clear and conspicuous disclosure, express informed consent, and simple cancellation than a “reasonable market participant” would have expected ROSCA to require. His report also found that “a reasonable market participant would not have believed, prior to March 2021, that the enrollment and cancellation flows alleged in the Complaint violated ROSCA.”

    Relevance of Cooper’s Testimony

    Defendants said that Cooper’s opinions are relevant to the FTC’s request for civil penalties. But the FTC said that Cooper’s opinions are irrelevant to this request because the understanding of a “reasonable market participant” is unrelated to any Defendant’s actual knowledge, which is the relevant question in the civil penalty inquiry. The FTC also contended that Cooper’s opinions are flawed because they were formed on the basis of non-ROSCA guidance.

    The Court held that Cooper’s opinions are relevant to the FTC’s request for civil penalties because his report may help the trier of fact determine whether Defendants should have known their actions were unlawful. The FTC argued that Cooper did not offer an opinion on this subject because the relevant implied knowledge inquiry for Amazon is whether “a sophisticated company with virtually unlimited resources and near-constant involvement of in-house and outside counsel should have known.” 

    And it said, for the individual Defendants, whether “executives in charge of the largest subscription program in the United States, essentially unlimited legal resources, and constant involvement with in-house or outside counsel” should have known. But these arguments that Cooper did not account for the actual circumstances of this case concerned the weight—not admissibility—because they attacked the factual basis of his opinions.

    In addition, Cooper’s reliance on non-ROSCA guidance for his opinions did not render them irrelevant. As the FTC’s designated representative recognized in her deposition, non-ROSCA sources provide “guidance relating to clear and conspicuous online disclosures” that are the same as “clear and conspicuous disclosure[s] in the context of ROSCA.”

    Reliability of Cooper’s Testimony

    The FTC next argued that Cooper’s opinions must be excluded because they are unreliable. It said that Cooper failed to demonstrate how his experience informs his conclusions. It also said that Cooper’s case coding methodology was applied inconsistently because he used a different method to code for “dark patterns” than he used to code for past FTC ROSCA enforcement actions.

    The FTC’s first two arguments, that Cooper lacked experience with ROSCA and he did not show how his experience informed his conclusions failed to persuade the Court.

    Even though the FTC said that Cooper did not perform any work pertaining to ROSCA while working at the FTC and that he has not written substantively on ROSCA, these arguments merely concerned to the weight of his conclusions. Cooper added that the methodology he employed is common in the field of law and economics.

    The FTC’s other argument about reliability, that Cooper applied his coding method inconsistently, also did not persuade the Court. The FTC took issue with Cooper’s methodology because he reviewed and analyzed past FTC ROSCA complaints to code them, but then coded past FTC cases for “dark patterns” based on the explicit use of that term. 

    The FTC likewise contended that Cooper did not consider consent orders from past FTC ROSCA enforcement actions to code for sub-categories of alleged deficiencies, but he did review consent orders from past FTC ROSCA enforcement actions to code for allegations of fraud.

    Defendants explained in response that the FTC has not defined “dark patterns” clearly enough to allow coding by any means other than searching for this explicit term. At his deposition, Cooper explained that he did not consider some information, such as FTC consent orders, because he was coding for the presence of certain allegations made in each case.

    Testimony on Legal Conclusions

    The FTC maintained that Cooper’s report included four impermissible legal conclusions: (1) that “the FTC’s allegations against Amazon in this case lay out a new ROSCA standard”; (2) that “the first departure from prior guidance is the novel theory of liability grounded in the subjective concept of ‘dark patterns’”; (3) that “the FTC employed much more stringent tests for ‘clear & conspicuous disclosure,’ ‘express affirmative consent,’ and ‘simple cancellation’ in this case than in its other ROSCA cases”; and (4) that “a reasonable market participant would not have believed, prior to March 2021, that the enrollment and cancellation flows alleged in the Complaint violated ROSCA.”

    The FTC did not identify any portion of his report that claimed to interpret ROSCA. Nor did the FTC identify any portion of his report that opines on whether Defendants had knowledge of ROSCA or that Defendants knew or should have known that their actions violated ROSCA. Instead, as Defendants acknowledged, Cooper reviewed, interpreted, and analyzed the FTC’s past ROSCA enforcement actions. He then noted where he believed the FTC departed from its prior guidance. This is not an interpretation of ROSCA. He also concluded that a “reasonable market participant” would have expected to have complied with ROSCA under certain conditions, but he never says that Defendants did not violate ROSCA or that Defendants would not have expected to have complied with ROSCA under these conditions. 

    The Court found this testimony permissible because an expert is allowed to “discuss industry conditions, standards, and practices” as well as “factual corporate norms.”

    Held

    The Court denied the Plaintiff FTC’s Rule 702 motion to exclude the testimony of Defendants’ expert James C. Cooper.

    Key Takeaway:

    Cooper’s report does not go so far as to decide the ultimate legal questions. Instead, it stays within proper bounds by addressing industry conditions, standards, practices, and common corporate norms.

    Please refer to the blogs previously published about this case:

    Marketing Expert Employed Techniques Widely Accepted in Market Research Community

    Human Factors Expert’s Testimony on Dark Patterns Excluded

    Case Details:

    Case Caption: Federal Trade Commission V. Amazon.Com, Inc., Et Al.
    Docket Number: 2:23cv932
    Court Name: United States District Court, Washington Western
    Order Date: August 15, 2025
  • Human Factors Expert’s Testimony on Dark Patterns Excluded

    Human Factors Expert’s Testimony on Dark Patterns Excluded

    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. The FTC sued Amazon.com, Inc. and three of the company’s executives, Neil Lindsay, Russell Grandinetti, and Jamil Ghani.

    Defendants’ expert Craig Rosenberg‘s opening report addresses the FTC’s allegation that Amazon used deceptive practices known as “dark patterns” in user interface design to drive unintended Prime membership.

    Rosenberg’s opening report makes several findings. He stated that there is ambiguity in the definition of the term “dark patterns,” it is difficult to measure clarity in user experience design and subjective evaluations are insufficient to measure this clarity, Amazon’s initiatives to enhance clarity demonstrate a commitment to data-driven user experience refinement, Amazon uses empirical evidence to inform design decisions, there are alternative (non-user experience design) explanations for declines in Prime membership subscriptions following clarity-centered changes, and the absence of objective standards for clarity risks penalizing legitimate business practices. 

    The FTC filed a motion to exclude Rosenberg’s testimony on three grounds. First, it said that his methods are unexplained and unreliable. Second, it said that he is not qualified to testify on the subject of his opinions. And third, it said that his testimony is irrelevant and confusing.

    Human Factors Expert Witness

    Craig S. Rosenberg, Ph.D., is a consultant who provides advanced engineering services for a wide array of companies. He has a Master of Science and Ph.D. from the University of Washington in Human Factors, a multidisciplinary field that studies how people interact with machines, technology, and their environment. 

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

    Discussion by the Court

    Rosenberg’s opening report, rebuttal report, and deposition testimony all indicate the primary source of his expert opinions is his experience, training, and education as a human factors engineer. However, Rosenberg’s inability to articulate how his education, training, and experience have led him to his conclusions shows that these conclusions are not the product of a reliable method; therefore, the Court held that his testimony is inadmissible.

    Amazon said Rosenberg’s “references to the ‘totality’ of his experiences are not evasions, but acknowledgments that his expert conclusions stem from integrated professional judgment based on decades of interface design.” Even so, Rosenberg must explain how his decades of experience inform his expert conclusions. By his own admission, he cannot do so.

    Held

    The Court granted Plaintiff FTC’s Rule 702 motion to exclude the testimony of Defendants’ expert Craig Rosenberg.

    Key Takeaway:

    Liberally construing Rule 702 in favor of admissibility, Rosenberg’s opinion does not show how his experience informs his conclusions. He draws no methodological nexus between his conclusions and his experience, education, and training, other than to say his conclusions are based on his experience, education, and training. This circular reasoning is insufficiently reliable.

    Please refer to the blog previously published about this case:

    Marketing Expert Employed Techniques Widely Accepted in Market Research Community

    Case Details:

    Case Caption: Federal Trade Commission V. Amazon.Com, Inc., Et Al.
    Docket Number: 2:23cv932
    Court Name: United States District Court, Washington Western
    Order Date: August 11, 2025
  • Relying on Personal Intuition Is Not a Valid Methodology for an Entertainment Industry Expert

    Relying on Personal Intuition Is Not a Valid Methodology for an Entertainment Industry Expert

    This copyright infringement action concerns two musical works: Plaintiff, Rene Lorente Garcia’s 1998 song Algo Diferente (“AD”), and the 2021 track Don’t Be Shy (“DBS”), performed by Tijs Michiel Verwest (“Tiësto”) and Carolina Giraldo-Navarro (“Karol G”). 

    Plaintiff brought two claims: direct infringement against Karol G and Tiësto (“Count I”); and contributory and vicarious infringement against Atlantic Recording Corporation (“Atlantic”), Kobalt Music Publishing America, Inc. (“Kobalt”), Sony Music Publishing (US) LLC (“Sony”), and Warner Records Inc. (“Warner”). 

    Plaintiff, a professional flutist and Latin music composer, has featured AD on several albums and made it available on digital platforms like Spotify and YouTube. DBS was created collaboratively over Zoom on May 29, 2020, by writers located in the Netherlands and Finland; Tiësto and others later completed the production, and Karol G added her vocals in the final stages.

    Each side offered a purported music expert to address whether DBS copies protectable elements of AD. Plaintiff relied on Richie Viera, a Latin music producer and former Vice President of Artists and Repertoire (“A&R”) at Capitol Records, who contended that the two songs share original melodic, harmonic, and rhythmic features. 

    Defendants requested that the Court exclude the Viera Report under Rule 702 and Daubert.

    Entertainment Industry Expert Witness

    Richard A. Viera-Cintrón is a former Vice President of A&R at Capitol Records, with decades of experience managing and producing Latin artists. Beyond that, he has taught music business and copyright at the Liceo de Arte y Tecnología in Puerto Rico, led seminars across Latin America, and appeared as a television commentator on music industry issues in Puerto Rico. 

    Viera is also a voting member of the Latin Academy of Recording Arts and Sciences and the National Academy of Recording Arts and Sciences.

    His expertise encompasses copyright infringement, moral rights, authorial rights, and trademark registration, making him a highly sought-after expert witness in legal disputes within the entertainment sector. As a musicologist, historian, and producer, he has worked with major labels and artists, curating historical compilations and reediting classic vinyl and CD recordings. 

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

    Discussion by the Court

    Qualifications

    While Plaintiff touts Viera’s decades in the music industry, the Court held that experience alone does not open the gate to expert testimony.

    To begin with, the list of cases that appears in Viera’s CV is long, but not illuminating. He cited 22 matters where he allegedly served as an expert, consultant, or musicologist — but nearly all involve the same cluster of parties in the Puerto Rico music industry, with one Plaintiff, Joel Bosh, recurring across five suits filed within three years. 

    Plaintiff highlighted Viera’s role as an author and educator, pointing to three published books and a forthcoming volume titled Stolen Music – The Fraud of Prior Art and Musical Building Blocks. But Plaintiff supplied no academic reviews, peer validation, or usage data to show these works carry weight in the forensic or legal musicology community.

    More generally, the nature of Viera’s professional background does not qualify him to engage in the comparative analysis his report purports to offer. While his curriculum vitae (“CV”) highlights substantial experience in the business side of the Latin music industry — including artist management, record production, television commentary, and music business education — none of these roles involves the core competencies of forensic musicology: transcribing compositions, analyzing protectable expression, or applying comparative methodologies to determine similarities.

    Moreover, Viera did not hold a degree in musicology, music theory, composition, or any closely related field. Nor did Viera’s deposition testimony bridge the gap. He declined to define standard musicological terms, such as “tonic” and “diatonic” despite using them in his analysis.

    Reliability

    Even if Viera’s experience qualified him to testify, that experience would not render his opinions reliable.

    Defendants explained in detail why Viera’s methodology failed every aspect of Daubert‘s reliability framework. His analysis — which relied largely on listening rather than transcription or notation — is neither testable nor replicable, lacks peer review or validation, and departs from accepted musicological methods by failing to conduct a prior art review or isolate protectable elements. 

    That concern is heightened by Viera’s admission that he did not prepare the transcriptions in his own report; Plaintiff supplied them — leaving the foundation of Viera’s analysis not just unverifiable, but secondhand.

    Plaintiff asserted that Viera’s “aural comparisons” supported by “visual representations” are grounded in industry experience and accessible to a jury. Yet Plaintiff identified no recognized methodology underlying this framework, nor did he explain how Viera’s conclusions can be tested or reviewed.

    Asked at his deposition about how he determines originality without evaluating prior art, he replied: “I use my instinct.I am able to detect when a word is copied, when there is any sort of copy.”

    He added, “I have a unique perception, something that perhaps very few people in the music industry have.” The Court held that it is not a methodology; it is, at best, Viera’s personal intuition offered up as professional expertise — untestable, unverifiable, and precisely the sort of expert say-so that Daubert excludes.

    Helpfulness

    The Viera Report did not engage in the type of analysis a jury could not undertake on its own. To the contrary, the Court held that Viera’s assertions rely on intuition and unexplained impressions — the kind of subjective judgments a jury is just as equipped to make as Viera; particularly in the absence of self-generated transcriptions, any review of prior art, or analytical tools to distinguish protectable expression from unprotectable elements. 

    Because Viera’s testimony is not the kind that Rule 702 envisions — evidence that informs, rather than supplants, the jury’s judgment — it is properly excluded.

    Held

    The Court granted the Defendants’ motion to exclude the Plaintiff’s proposed expert, Richie Viera.

    Key Takeaway:

    The unremarkable observation that an expert may be qualified by experience does not mean that experience, standing alone, is a sufficient foundation rendering reliable any conceivable opinion the expert may express.

    An expert who is relying solely or primarily on experience must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.

    Case Details:

    Case Caption: Lorente-Garcia V. Giraldo-Navarro
    Docket Number: 1:24cv23066
    Court Name: United States District Court, Washington Western
    Order Date: July 09, 2025
  • Neuropsychology Expert’s Testimony on Marijuana Use Admitted

    Neuropsychology Expert’s Testimony on Marijuana Use Admitted

    This is a product liability case arising from a motorcycle accident. Plaintiff Cameron Woodall alleged that on September 9, 2022, he was severely injured while wearing a motorcycle helmet allegedly designed and manufactured by Defendants Yohe Helmet Manufacturing Co., Ltd. and Foshan City Nanhai Yongheng Helmet Manufacturing Co., Ltd.; and distributed and sold by Defendant Cycle Gear.

    Plaintiff claimed that the helmet was defectively designed and unreasonably dangerous because it failed to incorporate available anti-rotational technology, which allegedly would have mitigated the forces that caused his traumatic brain injury during the accident.

    Defendant Cycle Gear maintained that Plaintiff’s cognitive and neurological impairments may be influenced, at least in part, by his history of marijuana use, as documented in his medical records.

    In support of this theory, Defendant Cycle Gear designated Dr. Janyna M. Mercado, a neuropsychologist, to offer opinions regarding the potential relevance of Plaintiff’s prior substance use to his current condition. Mercado did not examine Plaintiff but reviewed his medical history and opined that substance use is a relevant pre-existing risk factor when evaluating post-injury impairments.

    Plaintiff contended that Mercado’s opinions concerning his marijuana use are speculative, unreliable, and inadmissible under Rules 403 and 702.

    Neuropsychology Expert Witness

    Janyna Marie Mercado-Couch is a licensed clinical neuropsychologist who specializes in brain-behavior relationships and the effects of medical history on cognitive and emotional functioning.

    She has extensive experience evaluating patients with traumatic brain injuries, and she routinely conducts evaluations of the kind at issue in this case.

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

    Discussion by the Court

    Admissibility Under Rule 702

    Mercado is Qualified

    Here, the Plaintiff did not dispute Mercado’s qualifications. Thus, the Court found that Mercado’s background, training, and clinical experience satisfy the qualification requirement under Rule 702.

    Mercado’s Specialized Knowledge will Help the Trier of Fact

    Defendant Cycle Gear sought to introduce Mercado’s opinion that Plaintiff’s history of marijuana use is a relevant factor in assessing his current cognitive and psychological impairments.
    There is no dispute that Plaintiff’s medical records—including those cited in his Life Care Plan—contain repeated references to marijuana use, cannabis dependence, and related diagnoses. Mercado relied on these records, in conjunction with her clinical expertise and scientific literature, to conclude that Plaintiff’s substance use is a relevant pre-injury risk factor for cognitive dysfunction. Because Plaintiff’s current neurological and psychological symptoms are central to his damages claims, and because the proposed testimony provides context for evaluating alternative or contributing causes, the Court found that Mercado’s opinions would “help the trier of fact to understand the evidence or to determine a fact in issue.”

    Mercado’s Testimony is Based on Sufficient Facts and Data

    Mercado’s opinions are based on her clinical experience and review of Plaintiff’s medical records, and accepted literature in the field of neuropsychology. Plaintiff has not cited any authority suggesting that reliance on medical records in this context is improper.

    Mercado’s Testimony is the Product of Reliable Principles and Methods Reliably Applied to the Facts of the Case

    Mercado testified that she conducted her analysis in accordance with APA Ethical Standard 9.01(c), which permits forensic opinions based on record review and professional experience when direct testing is not performed.

    She further acknowledged that while she cannot quantify the extent to which Plaintiff’s marijuana use contributed to his current symptoms, that limitation reflects the inherent boundaries of neuropsychological science and does not undermine the reliability of her methodology.

    Admissibility Under Rule 403

    Having found that Mercado’s opinions are admissible under Rule 702, the Court next considers whether they should be excluded under Rule 403.

    In this case, Mercado’s opinions appear to be directly relevant to causation, damages, and the weight to be given to Plaintiff’s cognitive complaints. The fact that the topic may have prejudicial implications does not render it inadmissible, particularly where the testimony is grounded in scientific methodology and offered by a qualified expert. Accordingly, the Court found that Rule 403 does not bar admission of Mercado’s challenged opinions.

    Held

    The Court denied the Plaintiff’s motion to exclude certain opinions of Janyna M. Mercado, Ph.D.

    Key Takeaway:

    In fact, expert witnesses—particularly in medical or psychological disciplines—may base their opinions on a review of records without necessarily conducting an in-person examination.

    Case Details:

    Case Caption: Woodall V. Cycle Gear, Inc.
    Docket Number: 4:23cv870
    Court Name: United States District Court, Texas Eastern
    Order Date: August 12, 2025
  • Deaf Culture Expert’s Testimony Rests on Specific Qualifications, Not General Experience

    Deaf Culture Expert’s Testimony Rests on Specific Qualifications, Not General Experience

    This is a failure to accommodate case brought by the Equal Employment Opportunity Commission (EEOC) on behalf of two former Walmart associates, Marvin Montoya (“Montoya”) and Raymond Moore (“Moore”) (collectively, “Claimants”), alleging Walmart violated the Americans with Disabilities Act (“ADA”) when it purportedly failed to accommodate the Claimants’ disability, resulting in their constructive discharge.

    Walmart filed a motion to exclude the EEOC’s expert, Roger C. Williams, who was supposed to opine on deafness, communication between deaf and hearing individuals, and how sign language interpretation may assist deaf individuals communicate at work.

    Deaf Culture Expert Witness

    Roger C. Williams specializes “in consulting and training related to the needs of deaf adults in the mental health system.” He has worked in various roles related to interpretation, treatment, and access for deaf individuals. In one of his prior roles, he advised a state department “on matters related to the recruitment, hiring, and retention of individuals with a hearing loss.”

    He received his B.S.W. from the Rochester Institute of Technology and his M.S.W., specializing in community mental health, from the University of Illinois.

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

    Discussion by the Court

    Williams’ testimony can be summarized as four opinions. To begin with, he opined that Walmart did not provide effective accommodation to Montoya and Moore that would allow them to “enjoy all the benefits and privileges of their employment” or to “receive the same access to information provided to hearing co-workers.” His second opinion is that Walmart failed to follow its own policies requiring it to provide reasonable accommodations to deaf employees. Third, he opined that Walmart failed to provide an effective interpreter for Montoya and Moore, instead providing an unqualified interpreter—Walter-Gates—to translate between Walmart managers and Montoya and Moore. Finally, he concluded that Walmart’s procedure for requesting an accommodation and its forms that employees are required to complete are “inherently inaccessible for individuals who are deaf and do not have the written English competence to understand the forms.” 

    Walmart filed a motion to exclude Williams’ testimony. First, it argued that Williams’ opinions are unreliable and irrelevant because they misstate the record and make generalizations based on a small sample of experience. Second, it asserted that Williams’ opinions invaded the province of the jury by applying the law to the facts and telling the jury what to decide. Third, it said that Williams’ opinions will unfairly prejudice Walmart in a way that substantially outweighs the probative value of those opinions.

    The concerns Walmart raised speak to the weight of Williams’ opinion and are more properly addressed on cross examination than through exclusion

    Walmart first challenged Williams’ opinion that David Walter-Gates was not a qualified sign language interpreter. Its only argument in support is that Williams misstated the record, meaning Williams relied on unreliable facts and data to arrive at his conclusions.

    Williams’ challenged opinion relied, in part, on Walter-Gates’s own statement that “he was not qualified to interpret.” Walmart asserted that Walter-Gates was referring to statements he made because Montoya and Moore were attempting to use him as an interpreter—rather than Walmart attempting to use Walter-Gates as an interpreter to accommodate Montoya and Moore.

    According to Walmart, it is misleading for Wiliams to use that statement in support of his opinion that Walmart improperly used Walter-Gates as an unqualified interpreter for Moore and Montoya.

    For one thing, the record did not support Walmart’s assertion. Walter-Gates stated that “he made it clear to everyone that he was not an ASL interpreter and that he knew very little sign language,” that “he would get called over when there were conversations with [Montoya and Moore],” and that “he would always tell them right away that he was not an interpreter.” In any event, the Court held that the concerns Walmart raised speak to the weight of Williams’ opinion and are more properly addressed on cross examination than through exclusion.

    Walmart made a similar reliability challenge to Williams’ statement that Montoya and Moore’s supervisor, Austin Duvall, refused to train Montoya and Moore on powerlifting equipment because they were deaf.

    Walmart argued that the facts and data on which Williams’ conclusion is based—i.e., Duvall’s deposition testimony—are inaccurate.

    But Williams relied on the EEOC’s evidence that Duvall told Montoya that he could not train him on powerlifting equipment because his hearing limitations would create a safety issue for himself and others. 

    Williams is qualified to opine about whether Walmart’s actions complied with its reasonable accommodation policy

    Walmart objected to Williams’ opinion that Walmart’s policy is inaccessible for deaf individuals because it apparently is based on an unreliable generalization. It added that Williams’ opinion is irrelevant because it goes beyond the scope of the lawsuit.

    The Court held that Williams is qualified to opine about whether Walmart’s actions complied with its reasonable accommodation policy. Walmart contended that Williams’ opinions about Walmart’s policies are based only on his general experience as a supervisor. But Williams’ qualifications are more specific than that. When he worked at a state department of mental health, he was not just a supervisor: He “was responsible for hiring and supervising multiple deaf employees, as well as advising the Department’s Human Resources division on matters related to the recruitment, hiring, and retention of individuals with a hearing loss.” 

    Moreover, the Court held that Williams’ opinion will help the jury understand how a deaf individual, like Montoya, may have misunderstood the requirements of Walmart’s policies and how a sign language interpreter may have been able to help deaf employees understand what they needed to do to ensure that they were reasonably accommodated at work.

    If Williams’ testimony at trial strays into the governing law, a contemporaneous objection can address this concern

    Walmart challenged five of Williams’s opinions as impermissible legal conclusions. Those opinions are that Walmart “failed to provide effective communication,” “prevented Moore and Montoya from having access to the range of employment-related knowledge,” “did not provide effective accommodation which would have allowed Moore and Montoya to enjoy all the benefits and privileges of their employment,” “did not provide an effective interpreter,” and that “Walmart’s procedure for filing and documenting a disability and requesting accommodation is inherently inaccessible for individuals who are deaf.” 

    The legal conclusions that the jury must decide are whether Walmart failed to accommodate Montoya and Moore’s disabilities and whether Montoya and Moore were constructively discharged. Williams’ opinions are premised on his explanation of deafness, communication, and Montoya and Moore’s specific abilities and limitations.

    While some of the language in Williams’ opinion mirrors the legal standard, the Court held that he does not attempt to opine on what the law requires or whether Walmart complied with specific federal statutes.

    Walmart has not shown that the extraordinary remedy of excluding evidence based on the danger of unfair prejudice is warranted

    Walmart’s final argument to exclude Williams’s testimony is that his opinion is more prejudicial than probative.

    Walmart relied on the same arguments it made above. It asserted that Williams encroaches on the jury’s role, provides unhelpful opinions, and that his opinions are unreliable. Those arguments have already been rejected, so Walmart has not shown that the extraordinary remedy of excluding evidence based on the danger of unfair prejudice is warranted.

    Held

    The Court denied Walmart’s motion to preclude the testimony of EEOC’s expert, Roger Williams.

    Key Takeaway:

    Walmart’s argument appeared to rely on the fact that Williams’ statement about Duvall is based on a contested fact. Walmart has not pointed to any authority suggesting that an expert may only rely on uncontested facts to support his or her conclusions. Rather, experts regularly rely on deposition testimony to form their opinions.

    It may be different if Williams’ entire opinion were that Duvall refused powerlifting equipment training for Montoya and Moore because they were deaf. Instead, it is one fact among fourteen pages of facts and data that Williams considered in forming his opinions about the effectiveness of Walmart’s accommodations. 

    Walmart may attempt to disprove the allegation that Williams relies on or make a contemporaneous objection if the helpfulness of Williams’ opinions regarding powerlifting equipment lessens after Walmart’s summary judgment motion is resolved. But Walmart’s concerns do not support a pretrial ruling excluding Williams’ opinion. 

    Case Details:

    Case Caption: Equal Employment Opportunity Commission V. Walmart Inc.
    Docket Number: 2:23cv2395
    Court Name: United States District Court, Kansas
    Order Date: August 08, 2025
  • Environmental Engineering Expert’s Failure to Consider Mitigation Efforts Renders His Opinions Unreliable

    Environmental Engineering Expert’s Failure to Consider Mitigation Efforts Renders His Opinions Unreliable

    Plaintiffs Tonya Clayton and Hazel Stroble allege that an automobile assembly plant operated by Defendant FCA US LLC (“FCA”) near their homes in Detroit, Michigan (the “Detroit Plant”) emitted noxious odors into their neighborhood. They said that these odors unreasonably interfere with their ability to use and enjoy the residences that they own and depreciate the values of those residences. 

    In this putative class action, Clayton and Stroble asserted claims of nuisance and negligence against FCA based on FCA’s operation of the Detroit Plant.

    Plaintiffs asked the Court to certify the following class: “All owner-occupants and renters of residential property located, in whole or in part, within one mile (1.0) of [the Detroit Plant], located at 2101 Connor Street/4000 St. Jean Street, Detroit, Michigan from March 1, 2021 to the present.”

    FCA filed two motions to exclude the opinions of Plaintiffs’ expert witnesses, Dr. Mark P. Cal and Orell C. Anderson. Plaintiffs relied upon Cal and Anderson
    in support of their class certification motion.

    Environmental Engineering Expert Witness

    Dr. Mark P. Cal obtained a B.S. in Chemical Engineering and a M.S. and Ph.D. in Civil & Environmental Engineering from the University of Illinois at Urbana-Champaign (UIUC). He is currently the Campus Director and Vice President for Academic Affairs and a Professor of Civil and Environmental Engineering at New Mexico State University (NMSU) Alamogordo. For nearly 12 years, he was Chair and Professor in the Department of Civil and Environmental Engineering at New Mexico Tech (NMT).
    Cal’s research and consulting experience spans 36-years, and he has worked on projects in the areas of air pollution control, air quality science, atmospheric dispersion modeling (odors, gases and particles), chemical fate and transport, water resources engineering, and heat and mass transfer.

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

    Appraisal and Valuation Expert Witness

    Orell C. Anderson is a valuer and expert forensic consultant with extensive experience in appraisal, diminution-in-value and litigation support matters involving commercial, industrial, subdivisions, and vacant land properties, as well as single- and multi-family residences. 

    He specializes in real property damage economics and property value diminution on a local to global basis and has worked on some of the most notable environmental, social justice, and terrorist cases in recent times.

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

    Discussion by the Court

    Mark Cal

    Cal did not acknowledge or account for the mitigation efforts that FCA undertook beginning in the fall of 2021

    Cal opined that (1) “the entire 1.0-mile proposed class area displayed some level of elevated odor concentrations above [one odor unit per cubic meter]” and (2) “there is clear and convincing evidence that odors were dispersed throughout [the] proposed class area at an odor threshold level that residents would find offensive.”

    It is not clear from Cal’s report whether he is offering these opinions with respect to the limited time period for which he had actual sampling data (October and November of 2021) or, alternatively, with respect to the entire time frame covered by Plaintiffs’ proposed class definition (March of 2021 to the present).

    To begin with, Cal did not acknowledge or account for certain mitigation efforts that FCA undertook beginning in the fall of 2021. According to the Court, his failure to consider those mitigation efforts, and to explain what effect, if any, those efforts had on the odor unit level in the proposed class area during the class period (March 1, 2021, through the present), rendered his opinions unreliable.

    Next, if Cal’s opinion is limited to the time period for which he had sampling data, then it must be excluded because it is not an appropriate fit for the proposed class. As noted above, Plaintiffs are seeking to certify a class that spans from March 1, 2021, to the present. But an opinion covering only a small fraction of that period – i.e., the two-month period in the fall of 2021 for which Cal had sampling data – says little, if anything, about whether the criteria for class certification are satisfied for the entire proposed class period.

    There is no reliable basis for Cal’s opinion that all of the members of the proposed class would find the odor level emitted from the Detroit Plant to be offensive

    Cal bases that opinion solely on the fact that the odor emanating from the Detroit Plant was measured at one odor unit per cubic meter. But as Cal acknowledged, at that level, only “50 percent of the people” would even be able to “smell” the odor.

    The Court ruled that Cal has not sufficiently explained how an odor that only 50 percent of people can even detect could reasonably be considered offensive to the entire proposed class. Moreover, his opinion that the class members would find the odor offensive because it measured one odor unit per cubic meter is at odds with his acknowledgment that five odor units per cubic meter, not one, is “generally” the “threshold level that residents would find offensive.”

    Orell Anderson

    The Court next turns to Anderson’s opinion that he could develop a reliable model to determine the economic damages suffered by the proposed class members.

    Plaintiffs sought to certify a class that includes both “owner-occupants and renters” in the class area. But Anderson’s proposed model does not apply to renters. Instead, he intended to measure only the diminution in property values caused by the odors emanating from the Detroit Plant, and it is only property owners that could have suffered such a potential diminution.

    That Anderson’s proposed model does not apply to renters is a significant problem because FCA has presented evidence that approximately 45% of the proposed class members are renters, not owners. Because Anderson’s proposed model did not apply to the many renters in the proposed class, the Court held that it is not a proper fit for that class.

    Held

    The Court granted  FCA’s motions to exclude Plaintiffs’ expert witnesses, Dr. Mark Cal and Orell C. Anderson.

    Key Takeaways:

    • To be clear, Cal certainly was not required to agree with FCA that its mitigation efforts meaningfully decreased the odors emitted from the Detroit Plant. But to be reliable, his analysis had to at least acknowledge those efforts and explain how, if at all, those efforts impacted the odor levels and his analysis.
    • Anderson’s proposed model has a major flaw—it doesn’t apply to renters. This is a serious issue because FCA has shown that about 45% of the proposed class members are renters, not owners.

    Case Details:

    Case Caption: Clayton V. FCA US LLC
    Docket Number: 4:21cv12995
    Court Name: United States District Court, Michigan Eastern
    Order Date: August 07, 2025

     

  • Family Medicine Expert’s Testimony on Medical Facts in the Abstract Admitted 

    Family Medicine Expert’s Testimony on Medical Facts in the Abstract Admitted 

    In this personal injury case, Johnathan Mudge sought to recover for injuries allegedly resulting from an automotive collision that occurred on October 5, 2021.

    Mudge has sued three Defendants in this matter: Riverside Transportation, Inc., Riverside Transport, Inc., and Rena Talton, the driver of the vehicle that collided with Plaintiff’s vehicle.

    Defendants collectively filed a motion to exclude testimony from one of Plaintiff’s treating physicians, Dr. Winston B. Morris, a family medicine practitioner.

    Plaintiff elicited testimony from him regarding the anatomy of the spine, including the grouping of vertebrae, the nature and function of spinal discs, and the nature, causes, and symptoms of spinal disc injuries.

    Family Medicine Expert Witness

    Winston Barrington Morris, MD, holds a Bachelor of Arts degree in Biology from the University of South Florida, and he graduated as a Doctor of Medicine from the Medical University of South Carolina in 1997. He completed family medicine residencies in 2004, and he is certified by the American Board of Family Practice.

    Want to know more about the challenges Winston B. Morris has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    Morris offered some testimony based on scientific, technical, and otherwise specialized knowledge. For such testimony to be admissible in Court proceedings, Morris must be “qualified as an expert by knowledge, skill, experience, training, or education.” Morris’ medical education and significant experience as a doctor of family medicine satisfy this requirement.

    Next, the Court must determine whether it is “more likely than not that the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Morris’ medical knowledge is more likely than not to assist the jury in this case with understanding medical evidence and deciding on relevant medical facts. Thus, his testimony satisfies this requirement as well.

    Finally, the opinions he offers in this case must be “based on sufficient facts or data; be the product of reliable principles and methods; and must reflect a reliable application of the principles and methods to the facts of the case.” The Court ruled that Morris’ testimony about general medical facts meets the required standard. His knowledge of how the brain, spine, and nervous system work comes from his medical training. While he may not be a specialist, it’s up to the jury to decide how much weight to give his testimony.

    Similarly, Morris’ testimony regarding Plaintiff’s medical condition is based on his own experience treating the Plaintiff, including his review of Plaintiff’s own statements and medical records, in keeping with Morris’ medical training. The Court deemed it sufficient for his testimony to be admissible.

    Held

    The Court denied the Defendants’ motion to strike the testimony of Plaintiff’s treating physician, Winston Barrington Morris.

    Key Takeaway:

    Plaintiff has shown that Morris is qualified as an expert, and that it is more likely than not his specialized knowledge will assist the factfinder. He has also shown that Morris’ opinions are based on sufficient data, are the product of reliable principles and methods, and reflect a reliable application of the principles and methods. 

    Case Details:

    Case Caption: Mudge V. Riverside Transportation Inc. Et Al
    Docket Number: 2:23cv159
    Court Name: United States District Court, Texas Northern
    Order Date: August 04, 2025