Expert Witness Profiler

Tag: Reliable

  • Human Factors Expert Barred from Testifying on Whether Injury Was Foreseeable

    Human Factors Expert Barred from Testifying on Whether Injury Was Foreseeable

    Monserrate Caraballo (“Caraballo” or “Plaintiff”) has sued Home Depot U.S.A., Inc. (“Home Depot” or “Defendant”) under state common law tort for negligence, alleging that Defendant’s negligent display of boxed tile resulted in injuries to Plaintiff’s left eye.

    Caraballo filed a motion to exclude certain testimony from Home Depot’s expert, Dr. Robert Rauschenberger.

    Human Factors Expert Witness

    Robert Rauschenberger is currently the Vice President, Director of Human Factors at J.S. Held. He has over 25 years of experience conducting research on topics of visual attention and distraction, the organization of perceptual information, product design, user experience, risk communication effectiveness, and consumer decision-making.

    Also, Rauschenberger obtained his Ph.D. in cognitive psychology from The Johns Hopkins University, and for over two decades has conducted research on how humans process information.

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

    Discussion by the Court

    Caraballo argued (1) that Rauschenberger is unqualified to testify as an expert in this case because he does not have any demonstrable experience in “accidental construction or the biomechanics of strapped boxed tiles display, construction or movements,” (2) that his opinions regarding the “foreseeability” of Caraballo’s injury should be barred as they bear on the “‘ultimate issues’” of the case  (3) that his opinion is irrelevant under Federal Rule of Evidence 701 because it is “not based in science or fact,” and (4) and that “[a]ny evidence and/or testimony relating to an assertion that Plaintiff could and should have chosen a different method of accessing the boxed tiles to avoid the alleged incident contains speculation, is highly prejudicial, is not predicated on any fact and would mislead and confuse the jury,” in violation of Federal Rule of Evidence 403.

    Robert Rauschenberger

    To begin with, Rauschenberger has been recognized as a “human factors expert” under Federal Rule of Evidence 702 in past federal trials. Based on that, the Court has allowed him to testify in this case and offer expert opinions on how consumers like Caraballo may behave with or without proper warnings and instructions.

    Rauschenberg, however, will not be permitted to offer testimony that provides legal conclusions. Whether Caraballo’s injury was “foreseeable” strays perilously close to one of the ultimate issues of this case: whether Caraballo’s injury was reasonably foreseeable by Home Depot.

    The Court ruled that Rauschenberg’s first opinion—that, “[b]ased upon a lack of known prior similar incidents, the absence of scientific literature discussing the underlying mode of injury, and a dearth of even remotely related events in publicly injury databases . . . it was therefore appropriate [for Home Depot] not to provide warning against the alleged hazard of unintentionally punching oneself in the eye while attempting to pull merchandise off the display shelf using a packaging strap”—is relevant and admissible.

    However, he will not be allowed to state that “the subject incident was not foreseeable by Home Depot.”

    In Rauschenberg’s second and third opinions, he opined on how Caraballo “would have” behaved in the presence of warnings and the other options available to Caraballo. But drawing conclusions about what Caraballo would have done is speculative. At best, the Court held that Rauschenberg can opine on how “consumers” or “consumers like Caraballo,” generally behave, rather than speculating as to how Caraballo himself would have behaved.

    Held

    The Court granted in part and denied in part Caraballo’s motion in limine to exclude certain testimony by Dr. Robert Rauschenberger.

    Key Takeaways:

    • The Court recognized Rauschenberger as a qualified “human factors expert” under Rule 702 based on his prior testimony in federal trials.
    • The Court allowed him to testify about how consumers like Caraballo may behave with or without warnings and instructions.
    • The Court, however, prohibited Rauschenberger from testifying that the incident was not foreseeable by Home Depot.
    • The Court rejected Rauschenberger’s attempt to speculate on how Caraballo specifically “would have” acted, limiting him to general opinions on how consumers in similar situations behave.

    Case Details:

    Case Caption: Caraballo V. Home Depot U.S.A Inc
    Docket Number: 3:21cv252
    Court Name: United States District Court, Connecticut
    Order Date: June 10, 2025
  • Family Medicine Expert’s Opinions on Opposing Experts’ Qualifications Excluded

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

    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.

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

    Family Medicine Expert Witness

    Dr. Kennon Christopher Tubbs is a licensed medical doctor and board-certified family practice physician with nearly 30 years of experience as a practicing physician, including numerous years as a physician at the Utah State Prison and various jails.

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

    Discussion by the Court

    Tubbs’ testimony and opinions regarding correctional standards are beyond the scope of his expert designation and are not relevant

    The Defendant appointed Tubbs to evaluate and challenge the opinions of the Plaintiff and her experts concerning the medical and mental health treatment provided during her arrest and booking. However, the Court found that Tubbs’ expert report went beyond that role—it included opinions stating that the Washington County Jail’s booking and release policies, as well as the Defendant’s actions, complied with correctional standards. The Court noted that these opinions were not backed by any analysis in his report and fell outside the scope of what he was designated to testify about.

    Tubbs is qualified to offer expert testimony

    The Plaintiff claimed that Tubbs was not qualified to give expert testimony because his background is in general medical care, not in diagnosing trauma in women. However, the Plaintiff did not cite any legal authority to support this argument, and there is nothing in the record showing that Tubbs lacks the necessary knowledge, skills, experience, training, or education to testify about the medical and mental health treatment the Plaintiff received during her arrest and booking.

    The Court also found that the Defendant had adequately shown that Tubbs is qualified to provide the expert testimony for which he was designated.

    Tubbs’ anticipated testimony and opinions are reliable and admissible under Rule 702

    Plaintiff argued that Tubbs’ methods and opinions are unreliable because he did not examine Plaintiff; he speculates on facts; he misinterprets the criteria for diagnosing PTSD; and he is biased against and dismissive of Plaintiff’s version of the events and of women in general.

    However, the Court found that Tubbs’ report and deposition showed he had reviewed enough information to support his critiques of the Plaintiff and her experts concerning her medical and mental health treatment related to her arrest and booking. The Court also noted that Tubbs used specific criteria and relied on sufficient facts to form his opinions challenging their conclusions.

    Tubbs may not offer ad hominem opinions, or testimony and opinions that invade the exclusive roles of the judge and jury

    In his report and deposition, Tubbs offered opinions about the qualifications, training, and personal habits of the Plaintiff’s experts. While he is allowed to critique their opinions on the Plaintiff’s medical and mental health treatment related to her arrest and booking, the Court ruled that his comments on their qualifications crossed the line—such matters fall solely within the judge’s authority to decide.

    Moreover, Tubbs’ report and deposition testimony also included commentary and opinions regarding the weight of certain evidence, as well as the motivations of Plaintiff and her experts. The Court made it clear that Tubbs is not allowed to give testimony or opinions that interfere with the jury’s job of evaluating the evidence and deciding which witnesses are believable.

    However, this determination did not preclude Tubbs from offering testimony and opinions that involve certain disputed facts. Moreover, the Court decided that Tubbs may testify and opine regarding the medical effects of alcohol use and intoxication on an individual; how an individual’s alcohol use and intoxication affect or have implications in the proper diagnosis of medical and mental health conditions; and that if Plaintiff was intoxicated at the time of her arrest and booking, how her intoxication affects Plaintiff and her experts’ opinions regarding Plaintiff’s medical and mental health treatment as it relates to her arrest and booking.

    Held

    The Court granted in part and denied in part the Plaintiff’s motion to exclude the testimony of Defendant’s expert, Dr. Kennon Tubbs.

    Key Takeaway:

    The Court held that Tubbs is allowed to provide relevant testimony and opinions that critique the views of the Plaintiff and her experts on the medical and mental health treatment the Plaintiff received during her arrest and booking. If he lays an adequate foundation and meets the requirements of the Federal Rules of Evidence, he may also testify about the applicable medical standards of care during that time at the Washington County Jail.

    However, he is not permitted to testify that the jail’s policies, procedures, or the Defendant’s actions met correctional standards. He is also barred from offering opinions about the qualifications of the Plaintiff’s experts or the reliability of their methods, as those issues fall solely within the judge’s authority.

    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

    Case Details:

    Case Caption: Blackmore V. Ramirez
    Docket Number: 4:21cv26
    Court Name: United States District Court, Utah
    Order Date: May 27, 2025
  • Corrections Expert Barred from Testifying on Nurse’s Medical Decisions

    Corrections Expert Barred from Testifying on Nurse’s Medical Decisions

    Johnathan Maskiell and John Daulton were placed together in a small “isolation” cell. Maskiell stomped and beat sixty-one-year-old Daulton into a coma. Daulton died from his injuries on May 21, 2023. Maskiell has since pled guilty to Daulton’s murder.

    The Plaintiff, Tonya Jones as Administratrix of John Daulton’s estate, filed suit against the Kenton County Detention Center, Deputy Kristen Wehrer, and Deputy Jared  Capps alleging multiple constitutional violations.

    Kenton County filed a motion to exclude or limit Gary Maynard‘s testimony.

    Corrections Expert Witness

    Gary Maynard is a corrections consultant with over 45 years’ experience. He has served in the correctional field as the head of four state departments of corrections across the country since 1987, including Oklahoma, South Carolina, Iowa, and Maryland.

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

    Discussion by the Court

    Opinion 1

    Maynard’s first contested group of opinions concerns whether: (1) Deputy Kristin Wehrer “fraudulently” and “recklessly” filled out an inmate intake assessment form; (2) Wehrer’s actions comport with accepted jail corrections practices; (3) Wehrer’s actions “set in motion the events that led to” Daulton’s death; and (4) the Kenton County Detention Center (“KCDC”) failed to provide safe housing for Daulton.

    Although testimony using terms like “fraud” and “recklessness” could imply legal conclusions about Wehrer’s liability, the Court, however, ruled that Maynard is allowed to testify about whether, in his expert opinion, Wehrer’s actions or omissions related to the intake assessment form did not meet accepted practices in jail corrections. The Court found that this opinion is based on Maynard’s professional experience and could help the jury understand the standards and whether they were followed in this case.

    Opinion 2

    Kenton County challenged Maynard’s opinions regarding KCDC’s policies on information collection and use. 

    The Court held that Maynard’s claims that Daulton was held in conditions that posed a serious risk of harm, and that Capps and Wehrer knew about this risk but ignored it, are essentially legal conclusions presented as if they were factual opinions.

    The Court ruled that Maynard cannot testify about Maskiell’s health records. Additionally, in line with its earlier decisions, the Court will not permit Maynard to testify that KCDC’s practices “lead to a failure to protect inmates and staff,” because such a statement touches on legal issues that were already dismissed in Jones’ claims against Capps and Wehrer.

    However, Maynard will be allowed to give his opinion that KCDC’s use of JailTracker and its alert system does not meet generally accepted practices for gathering inmate information in jails. This opinion is within his area of expertise and could help the jury decide whether the jail’s lack of training or supervision contributed to Daulton’s death.

    Opinion 3

    Maynard criticized KCDC for allegedly relying too heavily on New Vista staff and their placement decisions, especially given the lack of available information about limited isolation cells and the absence of direct observation of inmates. He argued that the way New Vista’s system was implemented at KCDC went against generally accepted correctional practices—but this is not the same as saying that simply using New Vista was inappropriate.

    Maynard’s report also suggested that he believes Nurse Whitney Price recommended Daulton should be cleared for the jail’s general population based on her personal familiarity with him—not because she was making a formal mental health evaluation. Maynard will be allowed to testify that it goes against best practices for jail staff to blindly follow off-site placement decisions from New Vista when jail staff may be in a better position to assess an inmate’s safety. However, he will not be allowed to testify that Nurse Price’s decision to clear Daulton for the general population amounted to medical advice, as Maynard is not qualified to evaluate her medical judgment.

    Opinion 4

    Maynard tries to offer an opinion about what Capps knew or should have known, but this goes beyond his expertise in jail operations and wouldn’t be helpful to the jury.

    He also claims that KCDC’s failure to conduct timely cell checks “contributed to the death of John Daulton.” The Court has excluded this statement because it takes away the jury’s role in deciding whether Wehrer’s actions were the legal cause of Daulton’s death.

    While Maynard cannot simply repeat that the cell checks were inadequate, he is allowed to explain why frequent cell checks are important for inmates in isolation. He may also testify that ongoing failures to perform these checks violate accepted correctional practices. These opinions are based on his professional experience and may help the jury assess whether jail staff were properly supervised.

    Opinion 5

    The Court will allow Maynard to testify about best practices for managing inmates placed in isolation cells. In the first part of his opinion, Maynard discusses the fact that KCDC had only four isolation cells compared to its total number of beds and that the facility had the authority to repurpose unused cells for isolation if needed. His view that KCDC’s approach was rigid and did not align with accepted correctional standards is permitted, as it is based on his experience in jail operations and may help the jury evaluate whether KCDC staff were properly trained or supervised.

    However, Maynard will not be allowed to offer opinions about what Capps should have done. The Court found that such testimony would improperly suggest what might have happened if Capps had acted differently, which is a decision the jury must make when determining legal causation (proximate cause).

    Opinion 6

    Maynard stated in his opinion that “KCDC has exhibited a policy of inadequate training and supervision; and a custom of tolerance or acquiescence of federal rights violations.” Kenton County argued that Maynard is not qualified to make this claim because he had no factual basis—he didn’t review any records about the training deputies actually received, and therefore can’t assess whether the training met jail standards.

    More importantly, the Court found that these statements are improper because they directly accuse Kenton County of breaking the law. Deciding whether the County violated the law is a legal judgment that must be made by the jury, not an expert witness.

    Held

    The Court granted in part and denied in part the motion to exclude certain oipnions of Gary Maynard.

    Key Takeaway:

    The Court found that Maynard’s testimony might help the jury decide whether the jail’s lack of training or supervision contributed to Daulton’s death. Therefore, the Court chose not to completely exclude his testimony.

    Case Details:

    Case Caption: Jones V. Kenton County, Kentucky Et Al
    Docket Number: 2:23cv164
    Court Name: United States District Court for the Eastern District of Kentucky, Northern Division
    Order Date: June 09, 2025
  • Mechanical Engineering Expert’s Opinion on Alleged Manufacturing Defect in Accident Ladder Excluded

    Mechanical Engineering Expert’s Opinion on Alleged Manufacturing Defect in Accident Ladder Excluded

    In this products liability action, Plaintiff Joshua Cleaveland sued Defendants Tricam Industries, Inc. and Home Depot USA Inc. after he fell from a Tricam model GLX-5B ladder on August 26, 2021. The ladder was manufactured by Tricam and purchased from Home Depot. According to Plaintiff, he was injured because the ladder was defective.

    Defendants filed a motion to exclude the testimony of Plaintiff’s expert, Dr.
    Jonathan Slocum.

    Mechanical Engineering Expert Witness

    Jonathan Slocum is a mechanical engineer who earned his bachelor’s degree in 2014, master’s degree in 2015, and doctorate in 2018 in mechanical engineering from the Massachusetts Institute of Technology.

    He worked at Materials and Engineering Group LLC from 2017 to 2022 as a senior consultant, where he provided forensic and design consulting and failure analysis. Since 2020, his company LTAG Systems, LLC has been developing technology and devices for the United States Department of Defense.

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

    Discussion by the Court

    Defendants filed a motion to exclude Slocum’s expert testimony on the grounds that Slocum is not qualified to opine on ladder defects and design and causation, and his expert testimony is unreliable and speculative.

    Initial Matters

    The Court first addressed whether Plaintiff may rely on the First Slocum Affidavit to respond to Defendants’ motion to exclude.

    The Court concluded that Plaintiff may offer the First Slocum Affidavit to defend the principles and methodology used by Slocum in his initial report.

    To the extent that the Plaintiff attempted to use the First Slocum Affidavit to further explain Slocum’s qualifications as an expert in this case, the disclosure was untimely. Under Rule 26(a)(2)(B)(iv), Slocum was required to include all relevant qualifications in his initial expert report. As a result, the Court excluded certain parts of the First Slocum Affidavit.

    Slocum’s Qualifications

    The Court rejected Defendants’ argument that Slocum is unqualified to render an opinion in this case because he has never provided testimony specific to ladder design or accidents, has never designed a ladder or worked in the ladder industry, has no experience researching or addressing the causes of ladder-related accidents, and has never participated in any relevant committees that address ladder safety issues. While it is true that Slocum’s curriculum vitae indicated that he had little to no experience specific to ladder design and ladder-related accidents, his extensive education and professional background in mechanical engineering and metallurgy demonstrated that he is qualified to opine on whether the aluminum ladder in this case was defectively designed and manufactured.

    Reliability of Slocum’s Testimony

    First, the Plaintiff has failed to show that a simple visual inspection is a reliable methodology from which to draw conclusions about whether the ladder suffered from a manufacturing or design defect. While Slocum himself claimed, without proof, that his methodology is generally accepted in the “scientific community,” the Court cannot conclude that Slocum’s methodology is reliable because the Plaintiff has not put forth any evidence or argument that visual inspection alone is a reliable methodology for assessing the causes of ladder-related accidents.

    Based on a visual examination of the accident ladder and the exemplar ladder and calculating the height/wall thickness ratio of the accident ladder’s rear rail, Slocum found “evidence of buckling at the pin joint” and “deformation of the aluminum tubing,” which he concluded to be a manufacturing defect that contributed to Plaintiff’s accident. However, Slocum provided no explanation or testing to demonstrate why the deformity at the “rear-left rail extrusion that the spreader-link pin-joint passes through” could be problematic.

    Slocum concluded that the ladder was defective in design because he found that a “side load” is applied to the ladder’s front and rear rails when a user’s weight is on one of the top two steps of the ladder, leading to deformation of the ladder’s rails and spreader links. However, Slocum did not perform any tests to determine whether Plaintiff’s position on the top step of the ladder would lead to the buckling observed on the accident ladder or to prove that the spreader link of the ladder applied both an “eccentric load” and “torsion to the tube, which would add to the overall stress it experiences when loaded.” He also did not explain how much torsion or eccentric load is acceptable.

    Held

    The Court granted Defendants’ motion to exclude Dr. Jonathan Slocum’s opinion.

    Key Takeaway:

    Rule 702 does not require expertise to be so exacting. Although Slocum’s curriculum vitae shows minimal, if any, direct experience with ladder design or ladder-related accidents, his extensive education and professional background in mechanical engineering and metallurgy support his qualification to offer an opinion on whether the aluminum ladder in question was defectively designed or manufactured.

    Case Details:

    Case Caption: Cleaveland V. Home Depot United States Inc Et Al
    Docket Number: 3:23cv1298
    Court Name: United States District Court, Connecticut
    Order Date: June 10, 2025
  • Social Work Expert’s Testimony on PTSD Symptoms in Adult Women Admitted

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

    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.

    Plaintiff designated Annette Curtis as a retained rebuttal expert. Curtis will provide testimony regarding the symptoms and diagnosis of [PTSD] in adult women.

    Defendant sought to exclude or limit at trial the testimony of Plaintiff’s rebuttal expert, Curtis.

    Social Work Expert Witness

    Annette B. Curtis is a Licensed Clinical Social Worker (“LCSW”) with over 20 years of experience in treating women with sexual trauma and Post-Traumatic Stress Disorder.

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

    Discussion by the Court

    Curtis is Qualified to Offer Expert Testimony

    The Defendant contended that Curtis was not qualified because she lacked experience working in a jail setting or with inmates.

    However, the Court observed that Defendant pointed to no authority to support these propositions, and there is nothing in the record to suggest that Curtis lacked the requisite specialized knowledge, skill, experience, training, or education to testify and opine on the symptoms and diagnosis of PTSD in adult women. 

    Curtis’ Anticipated Testimony are Reliable and Admissible under Rule 702

    Defendant argued that Curtis’ methods and opinions are unreliable because she did not examine Plaintiff, but instead relied on a review of Plaintiff’s medical records and the discovery relating to other expert witnesses in the case.

    The Court held that Curtis’ report and deposition testimony demonstrated that she obtained and reviewed sufficient information to testify about and offer opinions on the symptoms and diagnosis of PTSD in adult women and the Plaintiff, as well as to critique the opinions of the Defendant’s experts. Whether obtaining more information or personally examining the Plaintiff would have been helpful to Curtis’ opinions is a matter for cross-examination.

    Moreover, Curtis’ report and deposition testimony also demonstrated that she applied specific criteria and sufficient facts to form her opinions.

    Specifically, provided adequate foundation and the testimony being otherwise admissible under the Federal Rules of Evidence, the Court held that Curtis may offer expert testimony and opinions regarding the symptoms and diagnosis of PTSD in adult women. Curtis may also offer expert testimony and opinions regarding circumstances that may cause sexual trauma and PTSD. 

    Curtis may not offer Ad Hominem opinions, or Testimony and Opinions that Invades the Exclusive Roles of the Judge and Jury

    The Court held that Curtis’ speculation, ad hominem attacks on the Defendant’s expert, and personal (as opposed to expert) opinions are likewise inappropriate, irrelevant, and substantially prejudicial. In other words, Curtis’ testimony and opinions on these matters are not helpful under Rule 702.

    Curtis testified in her deposition that she believed the Plaintiff suffered a traumatic event at the jail, that the Plaintiff was strip-searched in front of male deputies, and that the Plaintiff was not intoxicated. While Curtis is permitted to critique the opinions of the Defendant’s expert regarding the Plaintiff’s mental health diagnosis, the Court held that her deposition testimony should not include weighing evidence or assessing witness credibility. Basically, Curtis did not have personal knowledge of whether Plaintiff suffered a traumatic event at the jail, was strip searched in front of male deputies, or was not intoxicated.

    But provided adequate foundation and the testimony being otherwise admissible under the Federal Rules of Evidence, the Court held that Curtis may rebut the opinions of Defendant’s expert regarding the medical effects of alcohol use and intoxication on an individual; how an individual’s alcohol use and intoxication affect or have implications in the proper diagnosis of medical and mental health conditions; and that if Plaintiff was not intoxicated at the time of her arrest and booking, how that affects the opinions of Defendant’s expert.

    Held

    The Court granted in part and denied in part the Defendant’s motion to exclude or limit at trial the testimony of Plaintiff’s expert, Annette Curtis.

    Key Takeaway:

    The majority of the issues the Plaintiff raised regarding the reliability of Curtis’ testimony and opinions went to weight, not reliability or admissibility. Curtis’ report and deposition testimony demonstrated that her expert testimony and opinions were the product of reliable principles and methods, which she applied reliably based on sufficient facts.

    While some of the facts on which Curtis’ opinions are based are vigorously disputed by the parties, Defendant pointed to no evidence or legal authority requiring exclusion of her testimony and opinions regarding these facts. Curtis’ use of disputed facts to form her opinions regarding Plaintiff’s diagnosis did not render her testimony and opinions unreliable.

    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

    Case Details:

    Case Caption: Blackmore V. Ramirez
    Docket Number: 4:21cv26
    Court Name: United States District Court, Utah
    Order Date: June 03, 2025
  • Advertising Expert Permitted to Testify on Impact of Coupon Discounts on Consumer Decision-Making

    Advertising Expert Permitted to Testify on Impact of Coupon Discounts on Consumer Decision-Making

    Michaels Stores, Inc. sells arts and crafts and home decor products on its website and in its stores. Plaintiff, Nea Vizcarra, purchased several items from Michaels.com on November 28, 2022.

    Vizcarra said that in purchasing the discounted items, she understood that she was purchasing items that regularly (including before the advertised promotion) retailed at the published “regular” price, that this published price was the market value of the products she was buying, and that she was receiving the items at a comparatively reduced price that was not always available.

    Vizcarra brought this action on behalf of a putative nationwide class of people who “purchased one or more Michaels Products advertised at a discount on Defendant’s website or instore,” as well as on behalf of a similar California subclass. Michaels has moved to dismiss the amended complaint.

    Defendant filed two Daubert motions to exclude certain opinions of Plaintiffs’ two experts: Bruce G. Silverman and Colin B. Weir.

    Advertising Expert Witness

    Bruce G. Silverman is the owner and manager of Silverman Consulting LLC, an advertising and branding firm.

    He has testified as an expert in federal courts in Arizona, California, Delaware, Florida, Illinois and Oregon, in state courts in California and Missouri, at arbitrations, and before the Copyright Royalty Judges of the Library of Congress.

    Silverman served as EVP/Executive Creative Director at three of America’s largest advertising agencies (Ogilvy, Bozell and BBDO), as President/COO of two of the nation’s best independently-owned agencies (Asher/Gould and Wong Doody), and as President/CEO of the principal U.S. unit of the world’s largest media planning and buying shop (Initiative Worldwide).

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

    Economics Expert Witness

    Colin B. Weir is President at Economics and Technology, Inc., a research and consulting firm specializing in economics, statistics, regulation and public policy. He conducts economic, statistical, and regulatory research and analysis and often testifies as an expert witness before state and federal courts.

    His experience includes work on a variety of issues, including: “calculating economic harm and damage, and analyzing liquidated damages provisions; lost profits; false claims; diminution in value; merger/antitrust analysis; Early Termination Fees (ETFs); Late Fees; determination of Federal Excise Tax burden; and development of macroeconomic analyses quantifying the economic impact of corporate actions upon the US economy and job markets.”

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

    Discussion by the Court

    Opinions of Expert Bruce G. Silverman

    Defendant asked the Court to exclude two sets of Silverman’s opinions: (1) opinions related to whether certain discounts are misleading to reasonable consumers (“Misleading to Consumers Opinions”), and (2) opinions related to whether Defendant’s Coupon Discount practice would be important to a reasonable consumer  (“Michaels-Specific Opinions”).

    Misleading to Consumers Opinions

    Defendant argued that Silverman’s misleading to consumers opinions should be excluded because they opine on ultimate issues of law.

    Since Silverman did not opine on any legal issues, the Court held that there is no reason to exclude his proffered testimony on those grounds.

    Michaels-Specific Opinions

    Defendant argued that Silverman’s Michaels-specific opinions should be excluded because they (1) exceeded the scope of Silverman’s expertise, (2) were not the product of any reliable principles and methods, and (3) invaded the province of the jury. 

    The Defendant specifically challenged whether Silverman’s advertising experience provides a sufficient foundation to offer opinions about Michaels, its customers, or the coupon discount at issue in the case, without having conducted consumer surveys. As an expert, Silverman is permitted to make certain factual assumptions in forming his opinions. Moreover, the Court is persuaded that Silverman’s opinions are adequately grounded in his extensive personal knowledge and experience. The Court also noted that the Defendant had not demonstrated how Silverman’s opinions would invade the province of the jury.

    Opinions of Expert Colin B. Weir

    In his report, Weir opined that it is possible to determine class-wide damages using three damages theories, one of which is a conjoint analysis. Weir “proposes to calculate Price Premium Damages using conjoint analysis (wherein consumers would receive the difference in value between what they paid and the value of what they received that is solely attributable to Defendant’s challenged conduct).”

    The Defendant asked the Court to exclude Weir’s opinions that relied on his conjoint methodology on the grounds that they (1) are novel and unreliable, (2) ignore critical inputs, and (3) fail to properly account for supply-side factors.

    The Court found that the Defendant had not established a basis for excluding Weir’s opinions at that stage of the proceedings. The Defendant’s challenges to Weir’s use of conjoint analysis went to the weight and credibility of his opinions, not their admissibility.

    Held

    The Court denied the Defendant’s motions to exclude certain opinions of Bruce Silverman and Colin Weir without prejudice.

    Key Takeaway:

    Silverman’s opinions are sufficiently grounded in his experience in the advertising industry, and he is permitted to rely on hypotheticals supported by evidence. Moreover, Silverman did not offer opinions on any legal issues. After all, an opinion is not objectionable merely because it embraces an ultimate issue.

    Case Details:

    Case Caption: Vizcarra V. Michaels Stores, Inc.
    Docket Number: 5:23cv468
    Court Name: United States District Court, California Northern
    Order Date: June 02, 2025
  • Safety Expert’s Testimony on Clothing Rack Lighting Admitted

    Safety Expert’s Testimony on Clothing Rack Lighting Admitted

    This dispute involves injuries sustained by Plaintiff Virginia English (“Plaintiff”) when she fell in a Hollister Co. store at the Greenwood Mall in Bowling Green, KY (the “Hollister Store”). English alleged that she was looking at some clothes while walking out of the right side of the store when she tripped over a clothes rack and fell. 

    Defendants Abercrombie and Fitch Stores, Inc. d/b/a Hollister Co. and Abercrombie & Fitch Management Co. (collectively, the “Abercrombie Entities” or “Defendants”) filed a motion to exclude the testimony of David Johnson (“Johnson”), English’s expert witness. Meanwhile, English filed a motion to exclude the testimony of Defendants’ expert, Randy Gray (“Gray”).

    Safety Expert Witnesses

    David Johnson is a board certified safety professional. He performs forensic engineering and safety expert witness work for attorneys and insurance adjusters for cases involving slips, trips, missteps and falls, falls from elevation, stairway falls and industrial accidents.

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

    Randy Gray has over 25 years of conducting OSHA inspections of workplaces based on federal and state regulations, while being employed at Kentucky Labor Cabinet, Division of Compliance, Occupational Safety & Health. He has also worked fifteen years in the private sector as the President of Grayhawk Advantage, Inc., where he provides expert witness investigation services and reports regarding hazardous workplace conditions that caused injuries to clients.

    He has a Bachelor of Science degree from Murray State University in Occupational Safety & Health, a Masters degree in Science from Murray State University in Occupational Safety & Health, and twenty-five years of specialized training courses at the Occupational Safety and Health Training Institute.

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

    Discussion by the Court

    David Johnson

    English offered the opinion of David Johnson to show that the clothing rack “formed a low profile, low contrast, inconspicuous obstruction in a foreseeable passageway/walkway that was unsafe and unreasonably dangerous.” 

    Defendants asserted that Johnson’s report is not reliable because it is based on his own speculation and on incomplete information. Defendants also asserted that Johnson’s testimony is unreliable because “his own testimony contradicts his assumptions,” and that “Johnson cites no applicable codes or regulations with which the clothing rack failed to comply with.”

    Reliability

    However, the Court found nothing wrong with Johnson’s assumption that English fell when “her foot be[came] stuck and then unstuck under the clothing rack.” It did not constitute “subjective belief based on speculation and incomplete information” because Johnson did not fabricate that English’s foot became stuck under the rack. In fact, English’s medical records state that she “sustained a Type III RTC from falling when her foot caught on a rolling clothes hanger in the store.” Therefore, the argument that Johnson’s opinion is based on unsupported speculation is unpersuasive, as Johnson’s assumption that English fell when her foot became stuck under the clothing rack is supported by evidence in the record.

    Defendants challenged Johnson’s opinion that the clothing rack constitutes a platform or a display base because “the feet of clothing rack were below knee-level and/or under three feet in height.” Defendants also argued that because the feet of the rack cannot be separated from the clothing rack, Johnson’s opinion must be excluded as it is in direct contradiction of his own testimony and would also mislead the jury and confuse the issues. And Defendants challenged Johnson’s opinion because he opines that Hollister did not violate any applicable codes, and because he based his opinion on the existence and placement of the clothing rack, not whether the clothing rack was defective.

    The Court held that the objections raised by Defendants regarding Johnson’s reliability go to the weight that should be given to the expert’s opinions, and not to their exclusion.

    Relevance

    Defendants asserted that Johnson’s opinion regarding the lighting of the clothing rack was irrelevant because “he did not observe the rack with the additional holiday lighting that was placed.”

    However, the Court held that Johnson relied upon the testimony taken in the case, including of the store manager who testified that the store is dim, dimmer than most other stores in the mall, and that the lighting can create shadows on the floor. 

    Moreover, the fact that Johnson did not observe the rack with the additional holiday lighting is a potential limitation to his opinion, the weight of which can be decided by a jury.

    Defendants also argued that Johnson’s opinion that the rack was unexpected would confuse the jury because the Sixth Circuit has already taken judicial notice that clothing racks are expected in department stores during the holiday shopping season. The Court ruled that Johnson’s opinion about the rack being unexpected is specific to the facts of this case, not that all clothing racks in a store are unexpected. 

    Randy Gray

    Defendants retained Randy Gray “to render an opinion regarding the December 18, 2022, fall accident of English.”

    Qualification

    With twenty-five years of specialized training courses at the Occupational Safety and Health Training Institute, Gray was found qualified by the Court under Rule 702 and Daubert to offer expert opinions on whether an unsafe and dangerous condition existed at Hollister, and whether Hollister failed to inspect, maintain, remedy, or warn of that condition.

    Relevance and Unduly Prejudicial

    English also argued that Gray’s opinion that Defendants did not violate any Codes of Federal Regulation “will not assist the trier of fact and its probative value is substantially outweighed by the danger or confusing the issues or misleading the jury.”

    In this case, the Court held that Gray’s testimony will assist the trier of fact in determining whether a dangerous condition existed at the time of English’s fall. First, although OSHA standards apply to employees, Gray’s opinion could still help jurors determine whether an unsafe condition existed at the time of English’s fall. Second, the objections raised by English go to the weight that should be given to the expert’s opinions, and not to their exclusion. 

    Since this opinion is not unfair or inappropriate, the jury would be within its discretion to credit Gray’s testimony to conclude that a dangerous hazard did not exist. 

    Held

    • The Court denied Hollister’s motion to exclude David Johnson’s testimony.
    • The Court denied English’s motion to exclude Randy Gray’s testimony.

    Key Takeaway:

    An expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true. Stated another way “an opinion may be based on facts that are ‘assumed,’ or ‘hypothetical’ at the time of the report, provided that those facts are ultimately ‘established’ by other, independent evidence.”  Therefore, the argument that Johnson’s opinion is based on unsupported speculation is unpersuasive, as Johnson’s assumption that English fell when her foot became stuck under the clothing rack is supported by evidence in the record.

    Case Details:

    Case Caption: English V. Abercrombie & Fitch Stores, Inc. Et Al
    Docket Number: 1:23cv128
    Court Name: United States District Court, Kentucky Western
    Order Date: June 06, 2025

  • Recreational Vehicle Expert’s Cost-of-Repair Opinion Admitted

    Recreational Vehicle Expert’s Cost-of-Repair Opinion Admitted

    Naomi and Christopher Pershing (and their revocable Pecan Trust) sought compensation from Nexus RVs, LLC and Navistar, Inc. for their recreational vehicle, which they called defective.

    Nexus offered Thomas Fribley as an opinion witness. On March 14, 2025, the Pershings filed a motion to exclude an opinion from Fribley under Federal Rule of Evidence 702 and Daubert.

    Recreational Vehicle Expert Witness

    Thomas Fribley has over 28 years of experience with Coachmen Industries (another recreational vehicle company) where he held many roles in technical services, product evaluation, and sales. Since 2002, he has operated Fribley Technical Services, which offers expertise in RV inspections and technical services.

    He has been a certified master RV service technician since 1993 (a level four certification), and he has assisted in the design, manufacture, and repair of RVs and the training of others.

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

    Discussion by the Court

    Fribley intended to offer a cost-of-repair opinion. He testified that the RV’s diminished value corresponded to the estimated cost of repairs—approximately $6,000. His assessment was ostensibly based on the condition of the vehicle at the time of his inspection, rather than at the time of its acceptance. Given this difference in timing, the Pershings argued that the opinion should be excluded.

    The Pershings said that Indiana law limits damages for a warranty breach to “the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.”

    Nexus argued that Indiana law recognized several alternative means for calculating damages so long as they are reasonable, including the cost of repair. The Court agreed.

    The Court noted that the Pershings raised no doubts about his methods or bases. Moreover, the Pershings identified no late, extraneous, or prejudicial opinion of concern.

    Held

    The Court denied the motion to exclude the testimony of Nexus’ expert Thomas Fribley.

    Key Takeaway:

    A Court should exclude testimony unless it reliably speaks, without confusing or misleading the jury, on a relevant issue that the jury must decide. However, Fribley’s cost-of-repair opinion helped the jury decide an issue of consequence.

    Case Details:

    Case Caption: The Pecan Trust Et Al V. Nexus Rvs, LLC Et Al
    Docket Number: 3:22cv531
    Court Name: United States District Court, Indiana Northern
    Order Date: June 04, 2025
  • Testimony of Rehabilitation Expert Admitted Despite Reliance on Medical Opinions

    Testimony of Rehabilitation Expert Admitted Despite Reliance on Medical Opinions

    This is a personal-injury action arising out of a motor-vehicle accident between Plaintiff Jose Ricardo Olvera-Velazquez and Defendant Jose Hernandez De La Rosa. Defendant MVT Transportation LLC (“MVT”) has stipulated that Defendant De La Rosa was acting in the course and scope of his employment with MVT at the time of the accident.

    According to Plaintiff, his vehicle was struck by the 18-wheeler being driven by Defendant De La Rosa, causing severe injuries. Basically, this suit alleged claims of negligence against Defendant De La Rosa and claims against Defendant MVT for negligent hiring, retention, entrustment, supervision, and training of Defendant De La Rosa.

    Plaintiff has filed motions to exclude two of the Defendants’ experts, Dr. Mathew Greenston and Dr. Irmo Marini.

    Accident Reconstruction Expert Witness 

    Mathew Greenston is certified by the Accreditation Commission for Traffic Accident Reconstruction and is an emergency medicine physician. His education includes an undergraduate degree in mechanical engineering.

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

    Rehabilitation Expert Witness

    Irmo Marini obtained his PhD in rehabilitation from Auburn University and a master’s degree in clinical psychology from Lakehead University in Thunder Bay, Ontario, Canada.

    Also, he is a 2009 recipient of the National Council on Rehabilitation Education’s Distinguished Career Award in rehabilitation education, and 2010 recipient of the American Rehabilitation Counseling Association’s James F. Garrett Distinguished Career Award in rehabilitation research.

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

    Discussion by the Court

    Mathew Greenston

    The Plaintiff contended that (1) Greenston’s expected testimony included an impermissible legal conclusion; (2) portions of his expected testimony did not require an expert and are not helpful to the jury; and (3) his testimony is unreliable because he did not inspect the truck at issue.

    However, Plaintiff did not contend that Greenston is unqualified to testify. And Plaintiff has not identified problems with the reliability of the methodology he used either. Moreover, Defendants have satisfied their burden to demonstrate by a preponderance of the evidence that Greenston’s testimony is reliable. As a result, the Court held that the issues raised by the Plaintiff are matters more appropriately raised at trial with a motion in limine, through contemporaneous objection, or on cross-examination. 

    Irmo Marini

    To begin with, the Plaintiff argued that Marini impermissibly parrots the opinion of a medical doctor. However, the Court held that life planners like Marini must rely upon medical opinions to estimate the quantity of medical care someone will need over their lifetime. Significantly, it is undisputed that the medical doctor is expected to testify at trial to the opinions relied upon by Marini. 

    Therefore, the Court decided that Greenston and Marini should not be excluded as experts, so that the District Court is able to consider specific objections to aspects of their testimony as they arise at trial and/or through any motions in limine.

    Held

    In conclusion, the Court denied without prejudice the Plaintiff’s motion to exclude Defendants’ experts Mathew Greenston and Irmo Marini.

    Key Takeaway:

    According to Rule 703, an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. Thus, life planners like Marini must rely upon medical opinions to estimate the quantity of medical care someone will need over their lifetime. 

    Case Details:

    Case Caption: Olvera-Velazquez V. Mvt Transportation LLC
    Docket Number: 5:24cv28
    Court Name: United States District Court, Texas Western
    Order Date: May 08, 2025
  • ASL Expert’s Testimony on Language Proficiency Excluded

    ASL Expert’s Testimony on Language Proficiency Excluded

    Marie Rose Lennox Wing was deaf and used American Sign Language (“ASL”) to communicate. She passed away after three visits to Dignity Health hospitals over the course of a month.

    Her estate and family members brought this lawsuit following her death. It argued that Dignity Health violated state and federal law by requiring family members interpret for Wing during her hospital visits.

    Dignity Health’s expert Ann Witter-Merithew opined Wing had “some proficiency in reading and writing English” and could understand non-ASL communications occurring in a hospital setting. She further opined Dignity Health “was prepared to and perhaps offered [interpretive] services,” but Wing declined those services because she preferred to communicate through family members. Finally, Witter-Merithew opined on the dynamic between deaf parents, their children, and medical providers.

    Plaintiffs’ Daubert motion challenges the admissibility of Witter-Merithew’s expert opinion under Rule 702 of the Federal Rules of Evidence.

    American Sign Language Expert Witness

    Ann Witter-Merithew spent over fifty years as an ASL translator and instructor. Her career involved working in complex environments, including interpreting for criminal and civil court cases, family and individual counseling, in-patient treatment programs and healthcare and rehabilitative treatments.

    Witter-Merithew has experience interpreting for deaf parents in medical
    settings. She also holds a bachelor of professional studies degree in linguistics and interpreting, a master’s degree in education, and multiple certifications.

    Want to know more about the challenges Ann Witter-Merithew has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Qualifications

    Plaintiffs challenged Witter-Merithew’s ability to review and interpret Wing’s medical records instead of her general qualifications as an expert on [ASL], ASL interpreting, and deaf culture.

    The Court held that Witter-Merithew is a qualified expert based on her skill, training, education, and experience. She can use Wing’s medical records to the extent they allow her to render an opinion within her area of expertise.

    To the extent Witter-Merithew lacked experience using medical records or normally does not rely on them when determining if interpretive services were offered, those arguments are best left for cross examination.

    Sufficient Facts or Data

    Plaintiffs argued that Witter-Merithew’s opinions largely relied “on a cursory review and interpretation of medical records” and demonstrated a lack of firsthand knowledge about the events leading to this lawsuit.

    Plaintiffs pointed to portions of Witter-Merithew’s expert report about the use of Video Remote Interpreting (“VRI”) services with Wing. They argued that the report’s reasoning demonstrated that Witter-Merithew lacked “specific knowledge about the VRI system[s] used at [Dignity Health] facilities and [their] effectiveness for Wing.”

    To begin with, Witter-Merithew relied on over 2,000 pages of medical records, filings in this case, policy manuals from Dignity Health, and “research and literature from the field of deafness and ASL-English interpreting” to create her opinions.

    The Court held that there is no requirement for the experts to have firsthand knowledge about the events leading to a lawsuit.

    Experts also can extrapolate on existing facts, such as medical records and the availability of VRI systems, to generate novel theories.

    Reliable Principles and Methods

    Plaintiffs argued that Witter-Merithew provided two unreliable opinions. The first concerned Wing’s language use and ability to communicate through mediums like ASL and written English. The second concerned family members interpreting for Wing.

    The Ninth Circuit Court of Appeals provided unique factors to assess the reliability of experience-based expert testimony in United States V. Holguin, 51 F.4th 841, 855. The Holguin factors are “whether the expert’s experience supports [their] conclusion; whether the expert’s reasoning is circular, speculative, or otherwise flawed; or whether the expert’s reasoning is adequately explained.”

    Language Use by Wing

    Due to Wing’s death, Witter-Merithew could not conduct a formal language and communication assessment and could not interview Wing “about the quality and effectiveness of [services] she received” from Dignity Health. Witter-Merithew instead had to rely on “the reporting of others” to assess language usage and Wing’s ability to communicate.

    Witter-Merithew opined Wing had “some” proficiency in speech, “some proficiency in reading and writing English,” and was fluent in ASL. She further opined Wing could understand non-ASL communications in a hospital setting.

    By relying on medical records and family history, Witter-Merithew attempts to determine language proficiency based on third-party accounts of interactions with Wing. How others perceive Wing’s proficiency is relevant to the analysis. But it is too speculative to be the basis of Witter-Merithew’s opinion.

    While Witter-Merithew’s experience allowed her to opine on Wing’s language proficiency, the Court held that Wing’s language proficiency depends on her ability to understand and communicate information.

    Witter-Merithew’s opinion relied on medical records and family history to determine Wing’s non-verbal language proficiency. This deviates from the customary approach taken in ASL discrimination cases. ASL discrimination experts typically use scientific tests and methods to assess a hearing-impaired individual’s ability to communicate.

    The different approach that Witter-Merithew used is not determinative of reliability. The Court held that language proficiency is not something readily discernible from experience alone. In other words, Witter-Merithew, as a knowledge and experience expert, must provide some methodology explaining how she applied her background to the facts of this case.

    The Court found that Witter-Merithew did not make such a showing. Her opinion did not identify any knowledge or experience applicable to her analysis of this issue.

    Language Brokering

    Witter-Merithew did not interview Wing’s family members. She therefore did not opine on the family member’s ASL proficiency or “whether the means of communication family [members] used with Wing and hospital staff was effective.”

    However, she concluded that family members interpreting for Wing was likely due to her personal preference, rather than a lack of resources from Dignity Health.

    The Court held that Witter-Merithew’s opinions are reliable. Witter-Merithew can opine on language brokering and Wing’s preference for communicating through family members.

    Relevance

    Plaintiffs argued that Witter-Merithew’s “[o]pinion about the shortage of sign language interpreters” was irrelevant.

    While Witter-Merithew opines there is a general shortage of ASL interpreters in the United States, the Court held that she did not explain how this applies to the facts of this case.

    Indeed, Witter-Merithew testified at her deposition that the interpreter shortage did not relate to Dignity Health or its treatment of Wing. Relevance requires that expert testimony have underlying knowledge with “a valid connection to the pertinent inquiry.”

    Prejudice

    Plaintiffs argued that Witter-Merithew’s testimony and opinions about the use of family members for interpreting poses a significant risk of confusion and misleading jurors.

    However, Witter-Merithew provided a valid rebuttal opinion that offered an alternative explanation to the opposing expert’s conclusion about Dignity Health refusing to provide interpretive services, forcing family members to interpret for Wing. The Court held that there is no risk of confusion and jurors will not be misled.

    Held

    The Court granted in part and denied in part the Plaintiffs’ Daubert Motion regarding the testimony of Defendant’s expert Anna Witter-Merithew.

    Key Takeaway:

    Witter-Merithew was required to explain why her knowledge or experience led her to believe certain facts demonstrated a certain level of proficiency from Wing. Witter-Merithew, by not connecting her knowledge or experience to the opinion, did not adequately explain why she believes Wing was fluent in ASL and somewhat proficient in other forms of non-verbal communication.

    Case Details:

    Case Caption: Macaraeg Et Al V. Dignity Health Et Al
    Docket Number: 2:23cv990
    Court Name: United States District Court, Arizona
    Order Date: June 3, 2025