Expert Witness Profiler

Tag: Reliable

  • Construction Expert Barred from Testifying on Established Damages

    Construction Expert Barred from Testifying on Established Damages

    The case arises from Belmere, L.P.’s claim that Steadfast Insurance Company failed to timely and adequately pay it proceeds due under its commercial lines policy after Belmere invested $26 million of its own funds to repair a 249-unit apartment complex in Houma, Louisiana that it alleged suffered “catastrophic damage” during Hurricane Ida.

    Through its lawsuit, Belmere sought (i) additional coverage under its policy with Steadfast, and (ii) penalties, attorneys’ fees, and interest for Steadfast’s alleged bad faith. 

    Steadfast filed a motion in limine to exclude the opinions of experts Mr. Byron Earls and Mr. Christopher Lipp.

    Belmere retained Earls to (i) “investigate the scope of completed repairs based on information provided”; (ii) “generate comparative estimates for typical building types”; and (iii) “generate a report providing an opinion on the projected measurement of loss based on extenuating circumstance[s] after the event.”

    Lipp, on the other hand, was retained to provide a “technical assessment of the exterior building envelope components inclusive of the roof, exterior walls and windows” with a focus “on the severity of the impacts of water intrusion sustained at Belmere, and its need to replace building materials that were ruined after becoming wet.”

    Construction Expert Witness

    Byron Earls has over 20 years of experience in building construction, both commercial and residential. He also has over 7 years of experience as a catastrophic adjuster handling catastrophic claims nationwide including large fire and water losses.

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

    Engineering Expert Witness

    Christopher Lipp has performed numerous envelope assessments, and investigations and has prepared construction documents based on those investigations. Lipp is experienced in the evaluation of distressed facade elements, including windows, doors, curtain walls, storefront systems, stucco, brick and fiber cement panels on both historic and new construction.

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

    Discussion by the Court

    Byron Earls

    Steadfast made the following contentions: (i) Earls’ methodology is insufficient to meet Daubert standards for reliability and will otherwise result in jury confusion; (ii) his expert report fails to address causation; and (iii) his testimony is irrelevant to determining the alleged cost of repairs, which will result in jury confusion.

    Since Belmere conceded that Earls’ testimony will not be used to establish the measure of its damages—”which are established by its own out-of-pocket costs”; accordingly, the Court granted Steadfast’s motion to the extent that it sought to exclude testimony or any part of the Earls’ report that estimated damages that have already been established by Belmere’s “repair bill.”

    While Earls’ testimony may be relevant for the purpose of rebutting an assertion by Steadfast that specific repair costs were excessive or that the property was not restored using like-kind and like-quality materials, but, the Court held that in its current form, the “proposed opinion [did not] assist the trier of fact to understand or determine a fact in issue.”

    The Court declined to admit any testimony or portion of the Earls report that estimated damages that have already been established by actual costs. If Steadfast presented an argument that the costs incurred by Belmere are somehow excessive or relate to betterments, the Court will allow Earls to opine in general terms (i) as to the reasonable nature of the actual costs or (ii) for the purpose of rebutting the contention that the costs amounted to betterments. As to the reasonable nature of the amount paid by Plaintiff, in no event will the expert state the specific amount of his estimate; merely that he estimated the amount of damages to be greater than the amount paid by Plaintiff. 

    Christopher Lipp

    Steadfast contended in brief fashion that Lipp’s testimony should be excluded for the following three reasons: (i) he did not inspect the property; (ii) he did not provide any opinion on the issue of causation of the alleged damages or the sufficiency of the repairs; and (iii) his “expert report and associated opinions rely heavily on the flawed, irrelevant, and unreliable opinions included in Earls’ report.”

    As a threshold matter, the Court denied Steadfast’s motion to the extent it sought to exclude Lipp’s testimony because (i) Lipp was qualified to render an opinion on his respective subject matter, and (ii) Steadfast has otherwise failed to provide the Court with enough analysis on the issue to make a ruling.

    However, the motion against Lipp’s report was granted to the extent that it relied on the Earls report.

    Held

    The Court granted in part and denied in part Steadfast’s motion in limine to exclude experts Byron Earls and Christopher Lipp.

    Key Takeaway:

    According to Rule 402, expert testimony must be relevant—not merely in the general sense that all testimony must be relevant, but specifically in the sense that the expert’s proposed opinion would assist the trier of fact in understanding or determining a fact in issue.

    Case Details:

    Case Caption: Belmere, L.P. V. Steadfast Insurance Company
    Docket Number: 2:22cv2689
    Court Name: United States District Court, Louisiana Eastern
    Order Date: June 30, 2025
  • Obstetrics and Gynecology Expert’s Testimony on Mesh Porosity and Stiffness Admitted

    Obstetrics and Gynecology Expert’s Testimony on Mesh Porosity and Stiffness Admitted

    Connie Thacker is one of tens of thousands of individuals who have filed suit against Ethicon for injuries after treatment with Ethicon’s pelvic mesh devices. 

    Thacker filed a motion asking the Court to preclude defense expert Dr. Salil S. Khandwala from offering testimony on certain subjects. 

    Obstetrics and Gynecology Expert Witness

    Dr. Salil Siddhartha Khandwala is board-certified in obstetrics and gynecology with a subspecialty board certification in female pelvic medicine and reconstructive surgery. He has been in the practice treating women’s health issues since 2000.

    He taught as an Assistant Professor in the Division of Urogynecology and Pelvic Reconstruction Surgery department at the University of Maryland from 1998-2002.

    Want to know more about the challenges Salil S. Khandwala has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Khandwala’s testimony regarding degradation and contraction in the Ethicon mesh devices

    Khandwala was expected to testify that Ethicon’s pelvic mesh devices do not degrade or contract. Thacker argued that this testimony should be excluded because it is unreliable. Thacker contended that Khandwala’s opinions are based on (1) his statement that he “does not believe,” in those issues with respect to Ethicon’s mesh devices; and (2) a flawed methodology.

    However, Khandwala stated that his opinions on these subjects are based on his review of several studies and his own clinical experience using similar mesh devices. He also made several citations to scientific literature.

    For example, with respect to his opinion on degradation, Khandwala stated that “I have never seen [degradation] in my personal experience using this sling in over 300 cases spanning a period of 10 years and recent published scientific literature has found that Prolene mesh in fact does not degrade [citation omitted].”

    The Court found Khandwala’s opinions—that Ethicon’s pelvic mesh devices did not degrade or contract—to be reliable.

    Khandwala’s testimony regarding mesh porosity and stiffness

    Thacker suggested that Khandwala’s opinions on porosity and stiffness are unreliable because he “has never published on the porosity of mesh and has never personally examined the pore size of any of the Ethicon meshes absent observations with the naked eye.” Thacker argued that such gross examinations, on their own, are insufficient to render Khandwala’s opinions on porosity and stiffness reliable.

    The Court held that Khandwala’s testimony, however, is not solely based on the occasional examination of Ethicon’s products. Rather, the portion of his report that Thacker challenges demonstrated that Khandwala’s testimony on this subject is based on his knowledge relating to the conditions of Ethicon’s mesh products in cases where they are correctly implanted.

    And Khandwala’s knowledge on that subject was derived from both clinical and scholarly review. In fact, his expert report is replete with references to not only his own clinical experience as the basis for his knowledge relating to the conditions of Ethicon’s mesh products after implantation, but it also included numerous references to his review of relevant articles, studies, and other materials.

    Held

    The Court denied the Plaintiff’s motion to exclude the testimony of defense expert Dr. Salil S. Khandwala, M.D. 

    Key Takeaway:

    Khandwala’s opinions regarding degradation and contraction did not rest on unsupported speculation or a flawed methodology. Basically, he stated that his opinions on these subjects are based on his review of several studies and his own clinical experience using similar mesh devices.

    As a result, the Court broke no new ground in finding that Khandwala’s testimony was supported by appropriate validation and rested on a sufficient methodology.

    Case Details:

    Case Caption: Thacker V. Ethicon, Inc. Et Al
    Docket Number: 5:20cv50
    Court Name: United States District Court, Kentucky Eastern
    Order Date: July 01, 2025
  • Digital Forensics Expert’s Analysis of Website Activity Considered Relevant

    Digital Forensics Expert’s Analysis of Website Activity Considered Relevant

    This is a copyright infringement action filed by CoStar Group, Inc. and CoStar Realty Information, Inc. (collectively, “CoStar”) in September 2020 against Commercial Real Estate Exchange Inc (“CREXi”).

    CoStar is a company that provides commercial real estate (“CRE”) information, analytics, and online property listing marketplaces. It owns and operates LoopNet.com, a digital marketplace platform for CRE listings. CoStar contended that CREXi has engaged in “mass infringement” of CoStar’s photographs. Apparently, CREXi and its BPOs copied listing information, including images, from LoopNet when a listing could only be found on LoopNet, and that CREXi would take screenshots of photos or otherwise crop out CoStar’s watermarks from photos to build out listings on its website.

    CREXi filed a Daubert Motion to exclude the opinions of CoStar’s expert, Mr. Daniel Roffman. CoStar retained Roffman to opine on CREXi’s access to the LoopNet website.

    Digital Forensics Expert Witness

    Daniel E. Roffman is Vice President in the Forensic Services Practice. He has over 20 years of digital forensics and information security consulting experience, helping clients protect their most valuable information, and investigating allegations of trade secret theft and cyber incidents.

    He has extensive testimony experience working on behalf of both plaintiffs and defendants and has served as a court-appointed neutral expert on theft of trade secret cases. Roffman has also testified on a range of other digital forensic subjects including software piracy, cyber investigations, and electronic document authenticity issues.

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

    Discussion by the Court

    Roffman was supposed to analyze LoopNet logs and identify what activity in those logs can be attributable to CREXi and its representatives (including CREXi employees and third-party vendors CREXi retained to complete certain work).

    To begin with, Roffman explained how IP addresses can be used to identify users and track their activity on a website, LoopNet’s tools for logging activity (referred to as “hits”) on its website during a “session,” and how users “anonymous online campaigns” attempt to mask user activity through virtual private networks (“VPNs”), outsourcing tasks to third-party business process outsourcing companies (“BPOs”), and rotating through multiple IP addresses in a single session.

    Rule 403

    Basically, CoStar’s theory of copyright infringement is that CREXi copied its images from LoopNet “on a massive scale,” including by having BPOs copy images from CoStar, crop out CoStar’s watermark logo, and upload them onto CREXi’s website, and that this activity was a company policy at CREXi.

    Given that CoStar’s theory of the case is “mass infringement” by CREXi, the Court found that Roffman’s opinions are not substantially more prejudicial than probative. 

    Accordingly, Roffman’s analysis of the volume of activity on LoopNet’s website attributable to CREXi is relevant to and probative of whether CREXi employees and BPOs copied images off of LoopNet.

    Rule 702

    CREXi contended that Roffman’s opinions are unreliable because IP addresses identify a computer network, not an individual user. But if an IP address is identified as a computer network associated with CREXi, including activity from users on that computer network would likely show activity by users associated with CREXi. Roffman’s testimony attempts to identify LoopNet activity by CREXi and its BPOs. To the extent CREXi contended that this does not accurately capture activity attributable to CREXi, the Court held that it is free to challenge Roffman’s approach on cross-examination.

    Next, CREXi argued that Roffman’s opinions unreasonably assumed that activity from certain IP addresses containing no indicators, which appeared in the same sessions as IP addresses with an indicator, is also attributable to CREXi. Roffman explained why he “swept in” activity from IP addresses with no indicator of CREXi—if a user accessed LoopNet from a “CREXi Referring Website” once, only the activity from that particular session would appear as associated with CREXi. Other activity from that IP address where a user did not access LoopNet through a CREXi Referring Website would be left off of the activity log results. Thus, Roffman included activity from these IP addresses to capture potential CREXi activity where a VPN or rotating IP addresses were employed.

    Roffman relied on both IP addresses and sessions, which capture multiple IP addresses associated with one user in a session. He acknowledged that his approach to this analysis “may still be over inclusive,” despite taking measures to remove some data that appeared associated with CoStar’s clients, CoStar, and private IP addresses. 

    Held

    The Court denied the Defendant’s Daubert motion to exclude the opinions of Daniel E. Roffman.

    Key Takeaway:

    Roffman sufficiently explained his methodology, which is sound and based on his expertise in digital forensics. Again, to the extent CREXi disagreed with Roffman’s methodology because the results may be overinclusive, it is free to challenge his opinions on cross-examination. But questions that go to weight, not admissibility, are for the jury to decide—not the Court.

    Case Details:

    Case Caption: Costar Group, Inc. Et Al V. Commercial Real Estate Exchange Inc.
    Docket Number: 2:20cv8819
    Court Name: United States District Court, California Central
    Order Date: June 26, 2025
  • Hospitality Expert’s Testimony on Corporate Structure Excluded

    Hospitality Expert’s Testimony on Corporate Structure Excluded

    The Plaintiffs had purchased timeshares at the Westgate Smoky Mountain Resort. They alleged that the Defendants, comprising various entities linked to the resort, operated a high-pressure sales scheme. According to the Plaintiffs, this scheme persuaded prospective buyers to invest in the vacation timeshare program without properly disclosing critical and legally mandated information.

    In June 2020, Defendants disclosed Howard Nusbaum as an expert. Nusbaum provided an overview of timeshare history and its industry. He then set forth his disagreements with Plaintiffs’ expert, Mr. Kenneth Christopher Free.

    Plaintiffs filed a motion to exclude certain opinions of Mr. Howard Nusbaum. 

    Hotel And Hospitality Expert Witness

     Howard C. Nusbaum was the president and chief executive officer (“CEO”) of American Resort Development Association (“ARDA”) from 2000 to 2019.

    For the past thirty-seven years, he has held leadership positions in hotels and resorts with the last twenty years focused solely on timeshare standards, education, and communications with the goal of sharing these best practices.

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

    Discussion by the Court

    Nusbaum’s Opinions Regarding Defendants’ Sales Practices

    According to Plaintiffs, “Nusbaum opined that ‘Free’s assertions that somehow [Defendants] did not adequately or clearly disclose information about the use plan and booking availability is truly perplexing and is just plain wrong.’”

    Plaintiffs argued that Nusbaum’s opinion was not grounded in sufficient facts and relied on three unsupported bases. First, they claimed that Nusbaum relied on Defendants’ Public Offering Statement (“POS”) and made “a legal argument masquerading as an expert opinion.” Second, they argued that Nusbaum relied on Defendants’ experience, which they considered irrelevant. Finally, they asserted that Nusbaum based his opinion on his belief that Defendants had sufficient inventory.

    The Court had already excluded Free’s testimony regarding inadequate disclosures, finding it unhelpful to the jury. In light of that ruling, Plaintiffs’ challenge to Nusbaum’s critique of Free’s opinions appeared moot. To the extent Defendants sought to rely on Nusbaum’s opinions, the Court found them unhelpful for the same reasons it had excluded Free’s.

    Although Defendants argued that “Nusbaum opines that the disclosures in the POS ‘meet industry standards’,” Nusbaum, like Free, failed to explain the specific industry standards he referenced.

    Accordingly, to the extent Plaintiffs’ challenge was not moot, the Court concluded that Nusbaum’s opinions regarding Defendants’ sales practices were not helpful and should be excluded.

    Nusbaum’s Opinions about Corporate Structure

    Plaintiffs stated that, “Nusbaum’s opinion that Defendants’ use of multiple company entities is ‘legal’ is obviously, a legal conclusion, and thus, inadmissible.” In addition, Plaintiffs submitted that “Nusbaum’s opinion is not based on any information or data about the specific interrelationships between the various [Defendant] entities that are Defendants in this case.”

    The Court agreed that Nusbaum’s discussion of Defendants’ structure is not reliable.  Nusbaum stated that he did not “read any financial documents showing the interrelationship of the various Defendant entities in connection with the Resort.”  And his expert report reflected that he “did not review any documents regarding the relationships between the various Defendant entities.”

    Nusbaum’s Opinions about Free’s Experience

    According to Plaintiffs, “Nusbaum takes particular issue with the background and qualifications of Plaintiffs’ expert Kenneth Free.” But Plaintiffs stated that “Nusbaum . . . had no first-hand knowledge of Free’s role in the founding of Hilton Grand Vacations Company (HGV), which predated Nusbaum’s entry into the industry by nearly a decade.”

    Upon review, the Court held that Nusbaum’s statements appeared to be factual testimony as opposed to expert testimony. Even if Nusbaum’s statements could be considered expert testimony, Plaintiffs did not challenge any methods of collecting the information for his commemorative publications; instead, they challenged that Nusbaum did not review certain records or talk to certain individuals. These challenges go to the weight of Nusbaum’s statements.

    Plaintiffs also argued that “Nusbaum has no first-hand knowledge of Free’s role.”  But Nusbaum’s statement flows from his “two-decade experience” in the timeshare industry and his role in collecting information for the commemorative book.  If Plaintiffs believe that Nusbaum’s statements are speculative or constitute hearsay, they may object to them at a later date.

    Held

    The Court granted in part and denied in part the Plaintiffs’ motion to exclude certain opinions of Howard Nusbaum.

    Key Takeaways:

    • It is not proper for the Court to exclude expert testimony merely because the factual bases for an expert’s opinion are weak.
    • Claiming that an industry standard exists is not the same as discussing that standard.

    Case Details:

    Case Caption: Moore Et Al V. Westgate Resorts Ltd., L.P.
    Docket Number: 3:18cv410
    Court Name: United States District Court, Tennessee Eastern
    Order Date: June 27, 2025
  • Marketing Expert’s Testimony on Consumers’ Perceptions Admitted

    Marketing Expert’s Testimony on Consumers’ Perceptions Admitted

    This case centered on a trademark dispute involving the mark IDHAYAM, which means “heart” in Indian languages and was used in connection with sesame oil sales. Defendant Meenakshi Overseas LLC sold sesame oil under the IDHAYAM name and held a federal trademark registration for it. Plaintiff V.V.V. & Sons Edible Oils Limited, who also marketed sesame oil under the IDHAYAM mark, asserted that it had used the mark first and sought to cancel the Defendant’s registration along with related relief.

    Plaintiff retained Thomas J. Maronick to perform a survey purporting to measure the likelihood of confusion between the Parties’ respective IDHAYAM sesame oil products. 

    Maronick issued an expert report describing and interpreting the results of this survey on October 30, 2024. He opined that the “level of likelihood of confusion found here, i.e., 46.7%, supports a conclusion that there is a likelihood of confusion between the two brands of sesame oil among consumers who buy Indian and Asian food.”

    Plaintiff has also identified Janarthanan Rajaratnam, a director of Pankaj Exports Private Limited (“Pankaj”), as a non-retained expert who Plaintiff intends to use as a witness at trial. Pankaj is an export company located in India that has been involved in shipping IDHAYAM branded goods manufactured by Plaintiff to various parts of the world, including the United States. Plaintiff has indicated Rajaratnam will testify about various customs and practices of importers in meeting the requirements of U.S. Customs and the U.S. Food and Drug Administration (“FDA”), as well as about the importation practices of the Parties to this action.

    The Defendant filed motions to exclude the testimony of Plaintiff’s expert witness, Maronick, as well as that of non-retained expert Rajaratnam.

    Marketing Expert Witness

    Thomas Joseph Maronick is an Emeritus Professor of Marketing in the School of Business and Economics at Towson University in Towson, Maryland. His educational background includes a BA in Philosophy from St. Thomas Seminary, an MSBA from the University of Denver with a major in Marketing, a Doctorate in Business Administration (“DBA”) from the University of Kentucky with a major in Marketing, and a JD from the University of Baltimore, School of Law. He is an inactive member of the Maryland Bar.

    At Towson University, he taught undergraduate and graduate courses in strategic marketing, consumer behavior, and marketing research. He has also taught graduate and executive development courses in strategic marketing and marketing research at several universities in the Baltimore and Washington, D.C., areas.

    His professional background includes serving as the Director of Impact Evaluation in the Bureau of Consumer Protection at the Federal Trade Commission (“FTC”) from 1980 to 1997. In that capacity, he was the in-house marketing expert for all divisions of the Bureau, advising attorneys and senior management on marketing aspects of cases being considered or undertaken by Commission attorneys.

    Get the full story on challenges to Thomas J. Maronick ‘s expert opinions and testimony with an in-depth Challenge Study.  

    Discussion by the Court

    Motion to Preclude Expert Testimony of Thomas J. Maronick

    The Defendant contended that: (1) Maronick surveyed an overly broad audience, failing to limit participants to Indian consumers or to those who regularly purchased Indian food; (2) he omitted a control group; and (3) he failed to replicate real-world market conditions. According to the Defendant, the survey used low-quality photos that obscured distinguishing language on the packaging and excluded images of third-party products—factors that may have led respondents to perceive the parties’ products as more similar than they were. Due to these alleged flaws, the Defendant asserted that Maronick’s report was “completely useless” and likely to mislead the jury, and therefore should be excluded from trial.

    The Court agreed with the Plaintiff’s position, as stated in their Opposition, that all survey respondents had indicated that they purchased Indian food, even if only occasionally. Therefore, the Defendant failed to demonstrate that the survey sample was clearly inappropriate. If the Defendant wished to argue that the survey group should have been more narrowly defined, the Court noted they remained free to do so at trial.

    Regarding Maronick’s omission of a control group, the Parties disagreed on whether a control was necessary or useful for this type of survey. The Court concluded that this dispute pertained to the weight of Maronick’s testimony, not its admissibility.

    Lastly, the Court found that the photos used in the actual survey (as opposed to the lower-quality copies submitted to the Court) were much clearer. It also held that including third-party product images could have overcomplicated the survey and reduced its effectiveness. As with the other objections, the Court ruled that these concerns affected the weight of the evidence, not its admissibility, and could be addressed during trial.

    Motion to Preclude Expert Testimony of Janarthan Rajaratnam

    The Defendant argued that Rajaratnam’s testimony should be excluded for three reasons: (1) he did not qualify as a proper non-retained expert, but instead acted as a retained expert because he intended to base his testimony on documents and information produced during the litigation and provided to him for review; (2) the Plaintiff had failed to fully comply with the disclosure requirements of Federal Rule of Civil Procedure 26 for either non-retained or retained experts; and (3) Rajaratnam lacked adequate qualifications to testify regarding U.S. Customs and FDA importation requirements and practices.

    In their Opposition, the Plaintiff largely conceded that their expert disclosures were inadequate and that Rajaratnam was not a proper expert witness. Instead, the Plaintiff contended that Rajaratnam should be allowed to testify as a fact witness under Federal Rule of Evidence 701, citing his personal knowledge of U.S. Customs and FDA requirements gained through years of experience importing food products into the United States, as well as his familiarity with the importation of IDHAYAM products by both parties over several years.

    The Court agreed that Rajaratnam could not testify as an expert witness due to the Plaintiff’s failure to comply with the Federal Rules’ disclosure requirements. However, the Court declined to bar him from testifying as a lay witness.

    The Defendant objected, arguing that Rajaratnam had not been properly disclosed as a fact witness and should therefore be precluded from testifying in that capacity. Nonetheless, the Court noted that while Rajaratnam was originally identified as a non-retained expert, he had been timely disclosed as a witness nearly eight months earlier. Moreover, the Defendant had the opportunity to depose him on January 22 and 24, 2025. Given this, the Court found that any potential prejudice to the Defendant was not significant enough to justify excluding Rajaratnam’s testimony entirely.

    Held

    • The Court denied the Defendant’s motion to preclude the testimony of expert witness Thomas J. Maronick.
    • The Court denied the Defendant’s motion to preclude the testimony of non-retained expert witness Janarathanan Rajaratnam.

    Key Takeaway:

    Technical flaws in a survey—such as the format of the questions or how the survey is conducted—affect the weight of the evidence, not its admissibility. In essence, concerns about methodology, survey design, reliability, the expert’s experience and reputation, or critiques of the conclusions go to the weight of the survey, not whether it can be admitted.

    Case Details:

    Case Caption: V.V.V. & Sons Edible Oils Limited V. Meenakshi Overseas LLC
    Docket Number: 2:14cv2961
    Court Name: United States District Court, California Eastern
    Order Date: June 18, 2025
  • Risk Management Expert’s Conclusions about IBM’s Internal Capabilities Excluded 

    Risk Management Expert’s Conclusions about IBM’s Internal Capabilities Excluded 

    Plaintiff Gerald Hayden brought claims against Defendants International Business Machines Corporation (“IBM”), Pablo Suarez, and Shanker Ramamurthy, under the federal Defend Trade Secrets Act (“DTSA”) and for violating New York’s prohibition on the misappropriation of trade secrets.

    Prior to joining IBM in 2015, Plaintiff developed a “methodology to construct  an architecture for a digital platform,” which he called “Awareness to Execution” (“A2E”). According to Plaintiff, his alleged trade secret “describes an architecture for an IT solution that creates a digital platform which accesses data in near real-time . . . and applies big data prescriptive and predictive analytics.” A2E “can also be used as a methodology to market and sell the various components or elements of the digital platform, individually or in combination with each other.” 

    Plaintiff also brought a number of other claims under New York and federal law: breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, tortious interference, and retaliatory discharge under the Sarbanes-Oxley Act.

    Defendants filed a motion to exclude the proffered testimony of Plaintiff’s expert, David Martin.

    Risk Management Expert Witness 

    David Martin is a risk management consultant with over 40 years of experience as a financial executive. He has held senior positions at PricewaterhouseCoopers, Citibank, and AllianceBernstein, and has “extensive experience with technological solutions in the banking and financial markets industries.”

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

    Discussion by the Court

    Plaintiff offered Martin as an expert to opine on the nature and value of A2E. Defendants did not dispute Martin’s qualifications regarding the topics for which he has been engaged to testify. Instead, Defendants argued that Martin’s opinions are irrelevant and that his methodologies warranted exclusion of his testimony. Specifically, Defendants argued that Martin’s opinions are not based on sufficient facts and that he does not apply reliable methodologies to reach his conclusions.

    Reliance on Sufficient Facts or Data or Reliable Methodologies

    IBM’s Awareness of A2E

    Regarding IBM’s awareness of A2E and the value it may have held for the company, the Court observed that Martin based his conclusions solely on his personal experience. He asserted that the solutions embodied in A2E were not known to IBM or the broader market as of 2015.

    IBM’s Internal Capabilities

    Martin stated—after reviewing depositions from a former IBM employee and another individual he described as “an expert in software technology”—that “without access to [Plaintiff’s] A2E trade secrets, competitors and IBM would not have been able to execute on these strategies and solutions.”

    However, Martin did not explain how his background or expertise led him to conclusions about IBM’s internal knowledge or capabilities at any specific time. He failed to clarify how he determined that IBM lacked awareness of the “formulas, architectures, and solutions contained in A2E,” especially given that he had never worked for IBM or with the company in any professional capacity.

    The Court found that this omission weakened Martin’s opinion that IBM could not have executed the solutions without access to Plaintiff’s trade secrets. Because his assertion that IBM was unaware of certain strategies lacked a sufficient factual foundation, his related conclusion about IBM’s inability to implement or act on those strategies was similarly flawed.

    IBM’s Commercial Objectives

    Martin further opined that, before Plaintiff’s employment, IBM was not focused on the core elements of A2E or on horizontally integrating workflows. He based this view on his review of Plaintiff’s deposition and certain documents produced by IBM describing its commercial offerings.

    Nevertheless, the Court found that IBM’s public-facing commercial materials, even when considered alongside Plaintiff’s testimony, did not constitute “sufficient facts and data.” Moreover, Martin did not demonstrate how his industry experience in banking and finance qualified him to determine, from that limited set of documents, what IBM’s commercial priorities actually were at the time.

    Cloud Pak’s Overall Design

    Martin claimed that IBM incorporated parts of the Plaintiff’s trade secret—A2E—into its Cloud Pak products, and as a result, profited from A2E. He pointed to specific similarities, stating that Cloud Pak included “key combinations of elements” found in A2E, such as integrated data systems, a distinctive marketing framework, and a unique framework for analytics and decision-making.

    Based on these similarities, Martin concluded that IBM’s Cloud Pak was directly based on A2E. He argued that the overlap was too significant to be a coincidence and therefore believed that Cloud Pak’s overall design and architecture were derived from A2E.

    However, the Court rejected this reasoning. It held that Martin’s opinion amounted to a bare assertion—or ipse dixit—which is not valid expert testimony because it lacked a reliable, tested methodology.

    To support his conclusion, Martin had simply compared two slide decks: one showing A2E’s reference architecture and the other showing Cloud Pak’s. The Court found that this kind of side-by-side comparison was not a scientifically valid or reliable method under Rule 702, and therefore could not support his expert opinion.

    Hybrid Cloud Platform Solution

    Regarding Martin’s opinion on how long it would have taken IBM to develop a hybrid cloud platform without knowledge of A2E, the Court found that he failed to offer any methodology to estimate the time IBM allegedly saved by using A2E.

    Although Martin asserted that IBM gained a “head start” by using Plaintiff’s trade secret, the Court pointed out that he did not examine IBM’s internal processes for securing approval or funding for research and development. As a result, his opinion lacked the necessary factual basis and analytical framework.

    Intruding on the Province of the Fact Finder

    Although Martin did not expressly state that A2E qualified as a trade secret—and claimed that he had “no opinion” on that legal issue—he assumed, for the purposes of his report, that a trade secret is any formula that offers a business advantage. Based on that assumption, he concluded that A2E met this definition. However, the Court ruled that this was an inadmissible legal conclusion, which an expert is not permitted to make.

    The Court also noted that Martin made improper credibility judgments by repeatedly adopting the testimony of fact witnesses to support his own conclusions, rather than relying on independent analysis.

    Ultimately, the Court held that Martin’s testimony was inadmissible because his opinions and inferences merely reinforced the Plaintiff’s version of events, rather than offering objective, expert analysis.

    Held

    The Court granted the Defendants’ motion to preclude the testimony of Plaintiff’s expert, David Martin.

    Key Takeaway:

    Although an expert can “draw a conclusion from a set of observations based on extensive and specialized experience,” the expert must base that opinion on sufficient facts or data and “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: Hayden V. International Business Machines Corporation Et Al
    Docket Number: 7:21cv2485
    Court Name: United States District Court, New York Southern
    Order Date: June 17, 2025
  • Accident Reconstruction Expert’s Opinion on Crew’s Inadequate Response Admitted

    Accident Reconstruction Expert’s Opinion on Crew’s Inadequate Response Admitted

    Plaintiff Sky Jet sought economic damages related to the destruction of the left engine of its 1996 Beech 1900D aircraft.  Defendant VSE overhauled an engine part called a fuel control unit (“FCU”). Sky Jet claimed that the fuel control unit malfunctioned during two attempts to start to the aircraft, causing elevated internal engine temperatures, also referred to as “hot starts.”

    Sky Jet sued VSE for negligence in its overhaul of the FCU. Defendant VSE has disclosed Mark Pottinger as its retained expert. Sky Jet filed a motion to exclude a causation opinion by Defendant’s expert Pottinger as unreliable and irrelevant.

    Accident Reconstruction Expert Witness 

    Mark Pottinger is an aircraft accident investigation course graduate at the USC Viterbi School of Engineering and an affiliate member of the International Society Of Air Safety Investigators (ISASI).

    He is an instructor at the Aviation Safety and Security Program of the Viterbi School Of Engineering.  In 2013, Pottinger started his own consulting firm specializing in accident investigations and reconstructions. He develops trial exhibits for parties involved in complex aviation litigation. Pottinger also consults with clients who are or expect to be parties to litigation due to aircraft accidents or aviation activities.

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

    Discussion by the Court

    Mark Pottinger

    Pottinger disclosed four reports. His initial report, dated November 15, 2023, explained that an “engine makes power by taking ambient air and drawing it through the inlet and into the compressor section of the engine,” before passing into a “single centrifugal impeller.” Pottinger also explained the role of pilots during starting procedures and the need for the pilot to “be vigilant for abnormal start conditions” and to “take immediate action to manage an abnormal start” at the risk of engine damage. 

    Pottinger reviewed the maintenance records for the engine. He noted that problems with the engine began a few weeks before the FCU was replaced. 

    Pottinger also inspected the engine. One of the straightening vanes was broken and cracked, and it had a broken weld on the top crossbar. Pottinger stated: “The impact of the broken straightening vane on engine operation, or what caused the damage to the vane, have not been determined.”  However, he found that whatever the cause of the hot starts, the flight crew failed to appropriately react by aborting when the internal temperature reached 900 degrees. Both hot starts reached 1,000 degrees. 

    It should be noted that Pottinger supplemented his report three times. The last supplement, dated October 7, 2024, is at issue in the current motion. His specific opinion was that “[t]he fluctuating engine parameters and the poor starting performance of the subject engine resulted from the damaged diffuser straightening vane.”

    Plaintiff filed a motion to exclude Pottinger’s opinion in his October 7 report that “a broken engine component called a ‘straightening vane’ caused ‘poor starting performance’ or ‘abnormal engine operation.’”

    A. Undisclosed Opinions

    Plaintiff’s first argument is that Pottinger should not be allowed to offer a previously undisclosed opinion that “the broken diffuser vane caused the hot start.” In response, Defendant stated that Pottinger never made such an assertion and will not testify to that effect at trial.

    While this might appear to resolve the issue, Plaintiff, in its reply brief, accused Defendant of “playing semantic games,” arguing that Pottinger uses the terms “diffuser vane,” “straightening vane,” and “diffuser straightening vane” interchangeably—suggesting they refer to the same component. Plaintiff contends that Defendant is drawing an artificial distinction between these terms to claim that Pottinger never offered the disputed opinion. The Court observed, however, that Plaintiff’s own filings also use these terms inconsistently, making the distinction unclear on both sides.

    The Court found the parties’ arguments on this issue confusing. Pottinger’s October 7 report does, in fact, contain an opinion about a “damaged diffuser straightening vane,” making it unclear what opinion Plaintiff believes was not disclosed.

    As a result, the Court denied Plaintiff’s motion without prejudice. It emphasized that Pottinger’s opinions are documented in his report, and any testimony he offers at trial must align with what is stated there. However, due to the current lack of clarity in the record, the Court declined to make a definitive ruling on whether a specific opinion was disclosed or not. If necessary, Plaintiff may revisit the issue during trial.

    B. Reliability

    Pottinger’s October 7 report states that he had previously searched the Federal Aviation Administration’s Service Difficulty Report (“SDR”) system “for incidents that could be informative respecting the subject engine.” The two SDRs he discovered showed a damaged diffuser system causing increased temperatures and fluctuating engine parameters.

    His specific opinion about the damaged diffuser straightening vane was based on the SDRs.

    Plaintiff contended that “there is simply too great an analytical gap between Pottinger’s SDRs and any conclusion that the broken straightening vane caused hot starts.”

    Plaintiff did not dispute that, in general, relying on SDRs is improper. Instead, Plaintiff argued that the SDRs cited by Pottinger involve situations too different from this case, creating an unacceptable gap in his reasoning.

    The Court reviewed Pottinger’s reports along with the SDRs and agreed that there are some differences between those incidents and the present case. However, the Court finds that the gap in reasoning is not significant enough to make Pottinger’s opinions unreliable.

    Service Difficulty Report

    Plaintiff argues that the Service Difficulty Reports (SDRs) cited by Pottinger are not relevant for three reasons. First, the SDRs involved loose or broken diffuser tubes, whereas the engine in this case had a broken straightening vane. Based on this difference, Plaintiff claims the SDRs do not support the conclusion that a single broken straightening vane could affect engine performance.

    The Court disagrees. As noted earlier, there is considerable confusion regarding the terminology and how these components relate to one another. In fact, Plaintiff’s own reply brief quotes Pottinger’s testimony, in which he suggests that diffuser tubes and straightening vanes function as part of the same system. This implies that Pottinger himself sees less of a distinction between the parts than Plaintiff claims.

    Pottinger has also explained that both components work together to direct airflow into the engine, and that disrupting this airflow could adversely affect engine performance. Given this explanation, the Court finds that the fact the SDRs refer to diffuser tubes does not, by itself, make them irrelevant or render Pottinger’s opinion unreliable.

    Plaintiff’s second and third objections are that neither of the SDRs involved a hot start or engine damage. But the Court found this unpersuasive. Just because the engine in this case was damaged by a hot start doesn’t mean the SDRs are irrelevant simply because they didn’t involve hot starts. Both SDRs describe abnormal engine behavior, which is central to Pottinger’s opinion.

    The Court held that Pottinger’s reliance on SDRs where such irrevocable damage did not ultimately occur did not present so great an analytical leap—especially considering his emphasis on the crew’s inadequate response.

    C. Relevance

    Plaintiff’s third argument is that Pottinger’s October 7 report is not directly relevant to its claim that the fuel control unit (FCU) caused the hot starts. Plaintiff maintains that the central issue is whether the FCU was the cause and argues that Pottinger’s discussion of the diffuser or straightening vane has no bearing on that question.

    However, the Court found that Plaintiff’s view of the issue is too narrow. While Plaintiff’s theory focuses on the FCU as the cause of the hot starts, the broader question in the case is what caused the engine damage. Plaintiff believes the FCU was to blame, but Defendant offers alternative explanations—including Pottinger’s opinion that other engine defects contributed and that the crew’s failure to respond appropriately was ultimately responsible.

    Plaintiff also argued that Pottinger fails to connect his mention of “poor starting performance” to the hot start events. But this overlooked Pottinger’s opinion that the crew’s inadequate response played a key role in causing the damage.

    In conclusion, the Court finds that Pottinger’s opinions are sufficiently relevant to the issues in the case.

    Held

    The Court denied the Plaintiff’s motion to exclude certain expert testimony of Mark Pottinger.

    Key Takeaway:

    Pottinger “carried out an extensive investigation,” including inspecting the engine and maintenance records. His findings were that the engine was having issues unrelated to the FCU. His examination of the engine found damage to the diffuser straightening vane and he proffered that the general rule is that the most “upstream” damage is usually a starting point for determining what went wrong. 

    He was able to rule out all potential causes except the broken diffuser straightening vane and pilot error. So although Pottinger ultimately relied on the SDRs, they were not the exclusive basis of his opinions. Pottinger also testified as to the distinctions between the SDRs and this case and explained why they were still persuasive. 

    Case Details:

    Case Caption: Sky Jet M.G. Inc. V. VSE Aviation Services, LLC
    Docket Number: 2:23cv2210
    Court Name: United States District Court, Kansas
    Order Date: June 13, 2025
  • Biomechanics Expert’s Subjective Assurances do not Establish Admissibility

    Biomechanics Expert’s Subjective Assurances do not Establish Admissibility

    This case arises from a January 2023 automobile accident. On April 16, 2023, Plaintiff Gina Martin was driving eastbound on Interstate I-10, nearing the Chef Menteur exit in New Orleans, Louisiana, when Defendant Micah Cunningham crashed his truck into the rear of Martin’s vehicle. Martin alleged that she suffered various severe injuries as a result of this collision.

    Plaintiff retained Dr. David J. Barczyk, D.C as an expert witness in the field of biomechanics in order to opine about the causation of Martin’s injuries.

    Defendants filed a motion in limine to exclude the testimony of Barczyk arguing that Barczyk lacked the qualifications and expertise to render opinions regarding medical causation. The Court granted in part and denied in part the Defendants’ motion in limine to exclude the testimony of David J. Barczyk.

    Even though the Court found that Barczyk is qualified to opine on the medical causation of Plaintiff’s musculoskeletal injuries, the Court nonetheless excluded his testimony as to the same. The Court found that Barczyk’s testimony with respect to medical causation would be inadmissible because it would not reflect a reliable application of methodology to the facts of this case.

    Martin requested that this Court reconsider its prior ruling which precludes Barczyk from testifying as to the medical causation of Plaintiff’s alleged injuries. 

    Biomechanics Expert Witness

    David Barczyk is licensed in Louisiana as a chiropractor and
    continues to practice as a chiropractor in the office that he established. Barczyk has postdoctoral training in neurology and training in crash biomechanics.

    He has received over 350 hours of neurological training and is a diplomate of the American Chiropractic Neurology Board. He has several certifications in biomechanics and has attended over a dozen trainings. Barczyk has given a number of lectures on topics in biomechanics.

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

    Discussion by the Court

    With respect to whether Barczyk reliably applied his methodology, the Court held that Plaintiff has still failed to establish that Barczyk has done so. Plaintiff explained that “following the completion of the physical examination and examination of the medical history of Plaintiff, Barczyk was in position to render a reliable opinion regarding causation.” Plaintiff then stated that “Barczyk was able to eliminate previous and alternative causes of Plaintiff’s condition.”

    However, Plaintiff’s argument missed the point. Whether Barczyk was in a position to offer reliable testimony does not establish that he reliably applied his methodology to the facts of this case. And, even if he had done so, the Court held that his report fails to demonstrate as much. For example, Barczyk failed to demonstrate how or why he was able to eliminate alternative causes for the Plaintiff’s condition. The Court is thus left with the Plaintiff’s and Barczyk’s own assurances that Barczyk reliably applied his methodology. These subjective assurances do not establish admissibility.

    With respect to Barczyk’s qualifications to opine on the medical causation of Plaintiff’s alleged traumatic brain injury, Plaintiff’s arguments for reconsideration are likewise unavailing. Plaintiff restated Barczyk’s qualifications, which the Court has already found to be insufficient. Plaintiff further stated that Barczyk has performed research, testing, and clinical practice with respect to brain injuries. But she cited no examples of Barczyk’s publications, research, or clinical experience.

    However, the Court did clarify that, given Barczyk’s expertise in biomechanics, Barczyk is qualified to “testify as to the amount of force he believes was generated by the subject collision and the observed effect of such force on a hypothetical human body in a comparable accident.”

    Held

    The Court denied the Plaintiff’s motion for reconsideration of the Court’s ruling limiting Dr. David Barczyk’s testimony regarding medical causation.

    Key Takeaway:

    Whether Barczyk was in a position to offer reliable testimony does not establish that he reliably applied his methodology to the facts of this case. The Court is thus left with the Plaintiff’s and Barczyk’s own assurances that Barczyk reliably applied his methodology. These subjective assurances do not establish admissibility.

    Please refer to the blog previously published about this case:

    Biomechanics Expert’s Opinions on Medical Causation are Excluded

    Case Details:

    Case Caption: Martin V. National Interstate Insurance Company Et Al
    Docket Number: 2:24cv1645
    Court Name: United States District Court, Louisiana Eastern
    Order Date: June 11, 2025
  • Anesthesiology Expert Barred from Testifying About Alleged Strip Search

    Anesthesiology Expert Barred from Testifying About Alleged Strip Search

    The claims against La-Norma Ramirez and Washington County stem from Plaintiff Danyale Blackmore’s booking and release at the Washington County Jail.

    Blackmore alleged that her constitutional rights were violated when she was allegedly strip-searched at the Jail.

    Defendant sought to exclude or limit at trial the testimony of Plaintiff’s expert, Dr. Scott Allen. 

    Anesthesiology Expert Witness

    Scott Allen is a licensed medical doctor with specialization in anesthesiology. He has been board certified since 2017 by the American Board of Anesthesiology.

    Allen currently practices as an anesthesiologist with Mountain West Anesthesiology and has privileges at Intermountain Health Care, specifically at St. George Regional Hospital in St. George, Utah and Intermountain Medical Center in Salt Lake City, Utah.

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

    Discussion by the Court

    Plaintiff received multiple ketamine treatments at Allen’s clinic, starting on October 5, 2020, and met with Allen during at least three of her visits to the clinic.

    Allen was retained to testify that the Plaintiff’s arrest and the events surrounding it were extremely traumatic for her, leading to serious psychological and emotional issues.

    Plaintiff fails to demonstrate the reliability of Allen’s testimony for some of the matters for which he was designated as an expert

    The Defendant argued that Allen’s methods and opinions are unreliable because ketamine is not widely accepted as a standard treatment within the medical community. They also noted that Allen had only a few treatment sessions with the Plaintiff and based his understanding of her condition primarily on her ketamine treatment records.

    However, in his deposition, Allen explained that ketamine is a recognized treatment for certain medical and mental health conditions. He also testified that he used specific criteria and relied on sufficient facts to conclude that the Plaintiff exhibited symptoms consistent with anxiety, depression, or PTSD.

    Despite this, Allen did not provide an adequate basis to formally diagnose the Plaintiff with any medical or mental health condition. He also lacked personal knowledge of her arrest and alleged strip search. Ultimately, Allen did not diagnose the Plaintiff and cannot reliably determine the cause of her symptoms or the source of any diagnoses she may have received.

    Allen’s anticipated testimony, as limited in scope, is relevant and admissible

    The Defendant argued that even if Allen’s testimony meets the standards of Rule 702, it is irrelevant because it would not help the jury decide whether the Plaintiff was strip searched.

    Allen will not be allowed to testify that the strip search occurred or that it caused the Plaintiff to develop PTSD or any other medical or mental health condition. He also may not vouch for the Plaintiff’s credibility or state that he believes her version of events is true. However, this does not mean that his testimony is irrelevant to the issues at trial.

    Allen is permitted to testify about his direct observations of the Plaintiff during her ketamine treatments, as well as his communications with her during those sessions. Such testimony is generally not considered hearsay. If a proper foundation is laid and the testimony otherwise meets the requirements of the Federal Rules of Evidence, the Court held that Allen may also testify about general matters such as mental health diagnoses and the Plaintiff’s potential need for future ketamine treatments.

    This testimony is highly relevant to the issue of damages and may also be used to rebut the opinions and testimony of the Defendant’s expert, provided it meets evidentiary standards.

    Held

    The Court granted in part and denied in part the Defendant’s motion to exclude or limit the testimony of Dr. Scott Allen.

    Key Takeaway:

    It is important to note that Allen never diagnosed the Plaintiff with any specific medical or mental health condition. While he may speak generally about medical and mental health diagnoses, he is not permitted to testify or offer an opinion that the Plaintiff has, or is suffering from, any specific condition such as anxiety, depression, or PTSD.

    Please refer to the blogs previously published about this case:

    Mental Health Expert’s PTSD Diagnosis Was Deemed Reliable

    Corrections Expert’s Opinions on the Strip Search Excluded

    Social Work Expert’s Testimony on PTSD Symptoms in Adult Women Admitted

    Family Medicine Expert’s Opinions on Opposing Experts’ Qualifications Excluded

    Case Details:

    Case Caption: Blackmore V. Ramirez
    Docket Number: 4:21cv26
    Court Name: United States District Court, Utah
    Order Date: May 27, 2025
  • Lost Wages Expert’s Commission Calculations Admitted

    Lost Wages Expert’s Commission Calculations Admitted

    Jenessa Dubey was employed by Concentric Healthcare Solutions, LLC from August 2016 until her termination on December 2, 2021. She has filed a lawsuit against Concentric and Robert Bales, alleging sex-based discrimination, sexual harassment, and unpaid wages.

    The case focuses on Dubey’s claims that, over several years, Bales engaged in conduct that created a hostile work environment during her time at the company.

    Plaintiff retained a damages expert, Mr. Nathaniel Curtis, to calculate her lost earnings resulting from Defendants’ actions. As a result, Concentric and Robert Bales filed a motion to exclude Curtis under Federal Rule of Evidence 702 and Daubert V. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

    Lost Wages Expert Witness

    Nathaniel Curtis is typically engaged to analyze lost earnings related to complex labor discrimination and wrongful termination disputes.

    He holds an MBA, a Master’s Degree in Business Administration, and a Bachelor’s in “Business Ecology.” He serves as the Chief Financial Officer of a private engineering firm with over 150 employees based in Arizona.

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

    Discussion by the Court

    Curtis opined that the present value of Plaintiff’s lost earnings resulting from Defendants’ conduct is approximately $5.4 million as of January 1, 2024, based on documents produced by the parties, and information obtained from research efforts.

    Curtis is Qualified under Rule 702

    The Court found that Curtis is qualified to testify as an economics expert based on his education and professional experience. He holds an MBA in Business Administration and a Bachelor’s degree in Business Ecology, which satisfy the educational requirements under Rule 702. In addition, he has over ten years of experience providing expert analysis in similar cases. Therefore, the Court concluded that Curtis met the threshold qualifications to testify as an expert and will not exclude him at this pretrial stage.

    Whether Curtis’ Testimony Will Assist the Jury

    Defendants next argued that Curtis’ opinions about lost earning capacity are not helpful to the jury because the Plaintiff does not claim that her earning capacity was harmed. In response, Plaintiff contended that Curtis intends to testify only about the amount of her lost future earnings due to her wrongful termination by Concentric.

    There appeared to be a misunderstanding between the parties regarding the scope of Curtis’ intended testimony. In his report, Curtis stated that he was engaged to “calculate [Plaintiff’s] lost earnings resulting from Defendants’ actions as described in [her] complaint.” During his deposition, he was asked about the following statement: “[t]he relevant issue is [Plaintiff’s] earning capacity as a professional, not her earning capacity at Concentric.” When asked why her earning capacity at Concentric was not considered relevant, Curtis explained: “It’s not that it’s not relevant. It’s not the goal. The goal isn’t to say what she would have earned at Concentric. It’s to understand what her earnings capacity was.”

    The Court found that Curtis’ testimony will assist the jury because he will provide “knowledge beyond the trier of fact’s common knowledge.” The Defendants’ objections go to the weight of Curtis’ testimony and the evidence supporting it—not to its admissibility.

    Sufficient Facts and Data

    Defendant next argued that Curtis’ testimony relied on insufficient facts and data in violation of Rule 702(b). However, the Court found that Curtis’ opinions are drawn from sufficient factual grounds. Curtis stated in his report that, in developing his opinions, he reviewed documents produced by the parties, and information obtained from research efforts related to this report.

    Curtis has also included an exhibit detailing the documents he relied upon which includes check stubs and an offer letter. Plaintiff also noted in her response that Curtis relied upon records of Plaintiff’s historical compensation and commissions and data regarding compensation conditions in the specific industry at the relevant time. She also argued that Defendant’s expert also relied upon these same documents to reach his opinion.

    Defendants argued in their Reply that Curtis “only reviewed two commission payments to predict Plaintiff’s commissions for the remainder of her career” and that this limited review of two commission payments “is insufficient to predict almost 25 years of commissions.”

    Defendant essentially argued that Plaintiff’s commission payments and wage data were reviewed in a vacuum. Yet, according to Curtis, they were reviewed in conjunction with other documents, evidence and statistics from the Bureau of Labor. Cutis then utilized these facts, data and assumptions to reach a conclusion as to Plaintiff’s lost wages. These facts and data, reviewed in the aggregate, establish sufficient factual grounds from which Curtis could form an opinion and draw conclusions from.

    Reliable Principals and Methods

    Defendant argued that Curtis’ opinions regarding Plaintiff’s future earning capacity and expected growth rate in the “Actual Scenario” employed an unreliable methodology.

    Curtis employed a But-For Scenario and an Actual Scenario to calculate Plaintiff’s damages. He states that “the Actual Scenario differs from the But-For Scenario by assuming that [Plaintiff] will experience abnormal wage increases and commission increases in her new position because workers commonly experience several years of above average earnings increases when they pursue long-term and stable employment.”

    Curtis also stated that that “with respect to the Plaintiff’s lost commissions, I reviewed Plaintiff’s pay stubs, which revealed commissions in September 2021 of $16,308 and in October 2021 of $18,011. Using historical earnings, and specifically recent historical earnings, is a generally accepted and testable data source used by experts to calculate lost earnings in wrongful termination disputes.”

    Defendants objected to Curtis’ calculations regarding earning capacity growth and commissions. They also argued that he failed to explain the basis for his assumption of a 10% annual commission. However, an expert “may, in appropriate circumstances, rely on assumptions when formulating opinions.”

    While Defendants argued that Curtis did not take Plaintiff’s specific job into consideration in determining what rate was appropriate, the Court held that Curtis’ opinions are indeed the product of reliable principles and methods such that he can testify under Rule 702. It should be attacked by cross examination at trial—not exclusion beforehand.

    Held

    The Court denied the Defendants’ Daubert motion to exclude Plaintiff Jenessa Dubey’s expert, Nathaniel Curtis, MBA.

    Key Takeaway:

    Curtis has applied reliable principles to form his hypothesis. It is not for the Court to gauge whether that hypothesis is ultimately correct, so long as his opinion stays “within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology.”

    Case Details:

    Case Caption: Dubey V. Concentric Healthcare Solutions LLC Et Al
    Docket Number: 2:22cv2044
    Court Name: United States District Court, Arizona
    Order Date: June 12, 2025