Expert Witness Profiler

Tag: Reliable

  • Elevator Expert’s Twice-a-Year Inspection-Frequency Opinion Admitted

    Elevator Expert’s Twice-a-Year Inspection-Frequency Opinion Admitted

    Sebastian Symeonides got stuck in a malfunctioning elevator at the Trump International Hotel in Las Vegas for 20 minutes on Valentine’s Day 2022, which also happened to be his wedding day. So he sued Trump Ruffin Commercial LLC and its affiliated entities, along with Otis Elevator Corporation for negligence and products liability. His claims are based primarily on the opinions of his retained elevator-maintenance expert, John Koshak.

    John Koshak opined that PE3 malfunctioned because the hoistway ropes stretched, resulting in the lowering of the compensation sheave to the point where the switch tripped, which stopped the elevator.

    Koshak further concluded that Otis’ maintenance of PE3 was negligent for this incident to occur, as Otis employees must have failed to notice and fix the stretched ropes or the lowering of the compensation sheave before the incident occurred.

    Otis filed a motion to exclude Koshak’s report and testimony, arguing that it is not based in the scientific method, plus it’s speculative and irrelevant.

    Elevator and Escalator Expert Witness

    John Winfield Koshak has worked in the elevator industry for the last several decades. He belongs to the American Society of Mechanical Engineers (ASME) and the American National Standards Institute (ANSI), he is a certified elevator inspector, and he has earned various other accolades and accomplishments in the world of elevators.

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

    Discussion by the Court

    A. Koshak’s opinion is not excludable for his failure to use the scientific method

    Otis contended that Koshak’s opinions must be excluded because they are not based on “good science” like “testable” conclusions or “peer-reviewed or published literature.”

    The Court held that Koshak’s opinions are not based on scientific experiments or published studies, but rather founded upon his more than four decades of specialized knowledge, training, and experiential practice in the elevator industry—primarily as an elevator adjuster, serviceman, consultant, and research engineer.

    B. Koshak’s Causation Opinion is not Based on Cherry-Picked Evidence

    Otis’ second criticism is that Koshak’s opinion that the compensation sheave caused Symeonides’s wedding-day incident is excludable because it is “founded on cherry-picked evidence that feeds into Koshak’s result-driven litigation opinion.”

    However, Koshak’s deposition testimony confirmed that they are also based on a review of Otis’ business records; attorney discussions, reports from emergency personnel, and building engineering incident reports.

    Therefore, the Court cannot conclude that Koshak’s opinions are based on cherry-picked evidence.

    C. Koshak’s Opinion that the Compensation Sheave Should have been Examined Twice a Year is based on Specialized Knowledge and Experience

    A key opinion of Koshak is that the defect in the compensation sheave would have been apparent to Otis had it sent in a competent, qualified mechanic in to perform a proper inspection of the elevator pit twice yearly.

    Otis contended that “[t]here is no foundation for” this opinion, which “is based only on his self-serving interpretation of the Code, maintenance records, and selected witness testimony,” making it neither relevant nor reliable.

    However, Koshak’s deposition testimony demonstrated that his twice-a-year inspection-frequency opinion is based on his extensive experience in elevator maintenance and specialized knowledge, not mere speculation.

    D. Koshak’s opinion that Otis did not Sufficiently Examine the Elevator is Based on Specialized Knowledge and Experience and is Relevant and Helpful

    Otis offered the same criticism of Koshak’s opinion that Otis’ preventative maintenance was insufficient: it’s pure speculation. Otis also attacked Koshak’s negligent-maintenance opinion as irrelevant and unhelpful.

    A review of Koshak’s deposition testimony revealed that this opinion was based on the conditions of the elevator and pit, which revealed extensive neglect; Koshak’s experienced belief that the inspections performed were too short to complete all required tasks; plus the absence of maintenance records that reflected that key tasks were performed.

    Moreover, the messy condition of the pit was just part of the foundation for Koshak’s opinion that insufficient maintenance had been performed.

    Koshak May not Offer Legal Opinions Unrelated to Negligence

    Otis argued that Koshak should not be permitted to offer opinions that “Otis was contractually obligated to inspect the pit at least twice a year” or that Otis’ maintenance records were “fraudulent.” The Court held that the Plaintiff has not established that Koshak is qualified to offer such legal opinions.

    Held

    The Court granted in part and denied in part Otis’ motion to exclude John Koshak’s testimony.

    Key Takeaway:

    Koshak will not be permitted to offer the legal conclusions that Otis’ actions constituted a breach of contract or fraud. The contract-breach and fraud opinions are irrelevant in this negligence case, and expert testimony that does not relate to any issue in the case is not relevant and, ergo, nonhelpful.

    Case Details:

    Case Caption: Symeonides V. Trump Ruffin Commercial LLC Et Al
    Docket Number: 2:23cv854
    Court Name: United States District Court, Nevada
    Order Date: May 28, 2025
  • Economics Expert’s Testimony About Tivity’s Stock Price Drop Excluded

    Economics Expert’s Testimony About Tivity’s Stock Price Drop Excluded

    This securities fraud putative class action is based on allegations that Tivity, a publicly traded company, as well as various high-ranking executives, made false or misleading statements and omissions, and had a scheme to defraud investors regarding, facts material to both: the purported success of Tivity’s acquisition of Nutrisystem, Inc. (“Nutrisystem”) in Q1 of 2019 (“Nutrisystem Claim”); and the valuation of Tivity’s goodwill and the Nutrisystem tradename throughout 2019 (“Goodwill Claim”). 

    According to Lead Plaintiff, Defendants’ materially false or misleading statements and omissions on these issues led to significant losses in shareholder value when, on February 19, 2020, Defendants disclosed Tivity’s financial results for 2019 and forecasts for 2020, and announced the resignation of the Nutrition Segment’s President, Keira Krausz as well as the termination, without cause, of Tivity’s CEO, Donato Tramuto.

    Predictably, the effect (or lack thereof) of the allegedly fraudulent statements and omissions on the Corrective Disclosure and Tivity’s eventual decreased stock price is a central contested factual issue of this case. W. Scott Dalrymple sought to opine on the amount of loss Tivity shareholders experienced from Defendants’ scheme to defraud them, as well as their false and misleading statements and omissions, through evaluation of five items in the Corrective Disclosure.

    Defendants filed a motion to exclude the testimony of Dalrymple.

    Economics Expert Witness

    W. Scott Dalrymple is an economist specializing in quantitative valuation, econometrics, statistics, securities analysis, antitrust, financial markets, and intellectual property.

    Dalrymple has led numerous consulting, commercial litigation, and restructuring engagements on behalf of multinational companies, investors, financial institutions, and government agencies in the U.S., Europe, and Australia.

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

    Discussion by the Court

    Dalrymple is supposed to analyze the impact of the Corrective Disclosure on Tivity’s stock price.

    Dalrymple’s Analysis

    First of all, Dalrymple assumed that Tivity’s stocks had been trading on a semi-strong form of an efficient market prior to Tivity’s release of the Corrective Disclosure on February 19, 2020. Then, Dalrymple conducted a market model event study by using a regression model to predict expected returns on Tivity’s stock during the event window (i.e., the day of the Corrective Disclosure).

    Tellingly, Dalrymple made no attempt to separate the varying purported causes of Tivity’s stock drop included in the Corrective Disclosure—to determine whether some, all, or none of that information was attributable to Defendants’ fraud. 

    Dalrymple explained this seemingly glaring omission in his analysis. He contended that isolating the effects of the five items in the Corrective Disclosure is unnecessary given all that information is within what Lead Plaintiffs believe to be the zone of risk of Defendants’ concealed fraud.

    The Court held that Dalrymple failed to both (1) bridge any connection between the alleged corrective information, Defendants’ fraud, and Tivity’s stock decline, and (2) apply any principled or economic method to support his conclusion that the items in the Corrective Disclosure did not constitute confounding information that required removal from his total damages calculation.

    Dalrymple Fails to Properly Analyze the “Corrective” Nutrition Segment Financial Disclosures

    The Court held that Dalrymple’s aggregation of the five items in the Corrective Disclosure (the Q4 and 2019 earnings results, Q1 and FY 2020 earnings guidance, impairments to Tivity’s goodwill and the Nutrisystem tradename, and the announcements of Tramuto’s termination and Krausz’s resignation) as a single bundle of new information, despite acknowledgement that some of the information implicated information beyond Defendant’s alleged fraud, demonstrated the issue with his approach. 

    Dalrymple made no effort to determine whether the Q4 and 2019 earnings results, Q1 and FY 2020 earnings guidance, and impairments to Tivity’s goodwill and the Nutrisystem tradename were actually “corrective.”

    Nor did he account for that some of that financial information—information that, according to Lead Plaintiff, made the stock price fall—had already been anticipated by the market based on prior disclosures that the Nutrisystem acquisition may prove unsuccessful. 

    Because Dalrymple knew the market already anticipated that the Nutrisystem merger may have failed irrespective of Defendants’ fraud, the Court held that his analysis “should have carefully considered whether other factors [other than Defendants’ alleged fraud] might have been at play” in causing Tivity’s stock price decline. 

    Dalrymple Fails to Properly Analyze the “Corrective” Executive Departure Announcement Disclosures

    Dalrymple’s treatment of Tivity’s executive departures revealed in the Corrective Disclosure is equally flawed. As with Dalrymple’s acknowledgement that Tivity’s financial information could contain non-fraud related information, he understood “that Tramuto’s eventual departure from the company may have been anticipated.”

    The Court held that Dalrymple’s analysis of the purported corrective disclosures announcing Tramuto’s termination and Krausz’s resignation suffers from another flaw: these items are, as a matter of law, not within the zone of risk of Defendants’ alleged fraud. There is no evidence in the record that Tivity’s announcements of Krausz’s resignation and Tramuto’s termination revealed any fraud perpetuated by Defendants.

    Because Dalrymple does not provide any bridge between his opinion that the announcement of Tivity’s executive departures had “limited, if any, negative impact” on Tivity’s share price and an analytical framework supporting that conclusion, the Court held that Dalrymple’s attempt to remove this non-fraud information from his equation is merely inadmissible ipse dixit.

    Dalrymple’s Demeanor at the Daubert Hearing Underscores Why His Opinions Should Be Excluded

    The shortcomings of Dalrymple’s analyses are compounded by his demeanor on the stand. Dalrymple has extensive experience as an expert in litigation. He has appeared as an expert at trials and hearings on nine prior occasions and has sat for twenty depositions.

    However, during one exchange with Defendants’ counsel, Dalrymple directly contradicted his prior deposition testimony that he it did not causally connect any alleged misstatements to any of the five items from the Corrective Disclosure he based his opinions on by attempting to assert the opposite during the Daubert hearing. While testifying is no doubt a stressful experience, even for those familiar with the courtroom, Dalrymple’s contradictory positions about such basic elements of his reports and the tone and tenor of his testimony further underscores the problems with Dalrymple’s testimony and opinions.

    Dalrymple’s Testimony and Opinions Are Inadmissible Under Rule 702

    In this case, Dalrymple ignored the possibility that a portion of the five items in the Corrective Disclosure did not relate to Defendants’ fraud, and he also chooses to ignore his own knowledge confirming as much. 

    He then failed to properly deploy any reliable methodology based on sufficient data about the market to analyze whether there were any non-fraudulent factors within the Corrective Disclosure contributing to a drop in Tivity’s stock.

    Because Dalrymple did not reliably determine whether the information he relied upon was corrective of Defendants’ fraud, and did not reliably calculate the loss in value, if any, of Tivity’s stock that was caused by only non-fraudulent factors, the Court held that his testimony is also unhelpful to the jury. 

    Held

    The Defendants’ motion to exclude W. Scott Dalrymple’s testimony was granted by the Court.

    Key Takeaway:

    By presuming that analysts had already priced in all goodwill, integration, and diet-season risks in the Nutrition segment, Dalrymple treats any price drop from the five items in the Corrective Disclosure as necessarily fraud-related. But he finds support of this assumption only in the stock drop itself. For this, and the reasons stated above, his lack of methodological reasoning in disaggregating the fraud and non-fraud information in the Corrective Disclosure raises several “red flags that caution against certifying an expert includ[ing] reliance on anecdotal evidence, improper extrapolation . . . lack of testing, and subjectivity.” 

    Case Details:

    Case Caption: Strougo V. Tivity Health, Inc. Et Al
    Docket Number: 3:20cv165
    Court Name: United States District Court, Tennessee Middle
    Order Date: May 15, 2025
  • Mental Health Expert’s PTSD Diagnosis Was Deemed Reliable

    Mental Health Expert’s PTSD Diagnosis Was Deemed Reliable

    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.

    Elisabeth York was disclosed to address Danyale’s mental health symptoms and her diagnosis of posttraumatic stress disorder (PTSD).

    Defendant challenged York’s qualifications as an expert and the reliability of her methods and opinions. Defendant also argued that York’s anticipated testimony was unfairly prejudicial.

    Mental Health Expert Witness

    Elisabeth York is a licensed clinical mental health counselor (“LCMHC”) with a robust background in mental health and trauma counseling. She holds a Master’s of Science in Clinical and Mental Health Counseling from the Grand Canyon University.

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

    Discussion by the Court

    York is qualified to offer expert testimony

    Defendant argued that York was not qualified to offer expert testimony because she was an associate LCMHC, which required a supervising provider to consult on and approve her diagnoses.

    However, the record plainly demonstrates that a supervising provider signed off on each of York’s therapeutic sessions with Plaintiff.

    York is now an LCMHC, and Defendant did not challenge her current qualifications as an expert. Therefore, there is nothing in the record to suggest that York lacked the requisite specialized knowledge, skill, experience, training, or education.

    York’s anticipated testimony is reliable

    York demonstrated that she obtained sufficient information from Plaintiff to make her diagnoses. The Court held that the timing of such diagnoses, whether more information would have been helpful to the diagnoses, and York changing the diagnoses are subjects for cross-examination. York could also rely on information relayed to her by Plaintiff in making her diagnoses, just as any medical or mental health provider relies on information given to them by their patients. While some of these facts are vigorously disputed by the parties, Defendant pointed to no evidence or legal authority requiring exclusion of a treatment provider’s testimony because the provider’s diagnosis relied on information offered by their patient. Moreover, York’s reliance on information Plaintiff provided did not render York’s testimony and opinions unreliable.

    Also, York’s deposition testimony demonstrated that she applied the specific criteria required for Plaintiff’s PTSD diagnosis. Defendant’s expert may disagree with that diagnosis. But that disagreement did not render York’s conclusion unreliable.

    York’s anticipated testimony is relevant and admissible

    York did not have personal knowledge of whether Plaintiff was strip searched. The Court held that York will not be permitted to testify that Plaintiff was strip searched or that the strip search caused Plaintiff to have PTSD or other mental health diagnoses. But this did not mean that York’s anticipated testimony and opinions were not relevant to the trial issues.

    While York is not permitted to vouch for Plaintiff, she can testify to her observations of Plaintiff during their therapy sessions. York can also testify regarding her communications with Plaintiff during their therapy sessions. Such testimony is generally not hearsay. And, provided adequate foundation and the testimony being otherwise admissible under the Federal Rules of Evidence, York may testify that the circumstances, as described to her by Plaintiff during their therapy sessions, are sufficient to meet the criteria for certain mental health diagnoses and lead to York’s diagnoses of Plaintiff. The Court held that this anticipated testimony and opinions are highly relevant to damages issues. 

    Defendant raised concern that York’s testimony and opinions may cause unfair prejudice by causing the jury to give greater weight to Plaintiff’s credibility, and created a danger of misleading or confusing the jury regarding issues of causation.

    But these concerns are nearly always risks when a non-retained treatment provider offers expert testimony regarding a diagnosis. And they are limited and avoided through vigorous cross-examination, the presentation of contrary evidence, carefully crafted jury instructions, and appropriately targeted closing arguments.

    Held

    The Court denied the Defendant’s motion to exclude or limit at trial the testimony of Plaintiff’s expert, Elisabeth York.

    Key Takeaway:

    York is qualified to offer expert testimony. Her methods and opinions are sufficiently reliable, and her anticipated testimony is relevant and its probative value is not substantially outweighed by a risk of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. 

    However, as necessary or appropriate based on what evidence and how such evidence is admitted at trial, specific objection may be raised at trial to specific questions posed to York.

    Case Details:

    Case Caption: Blackmore V. Ramirez
    Docket Number: 4:21cv26
    Court Name: United States District Court, Utah
    Order Date: May 23, 2025

  • Medical Billing Expert’s Testimony Regarding the Reasonable Value of the Medical Treatment Admitted

    Medical Billing Expert’s Testimony Regarding the Reasonable Value of the Medical Treatment Admitted

    This case arises from a traffic accident that occurred on December 21, 2022 at an intersection on U.S. Highway 98, involving an 18-wheeler and a Ford F-150 pickup truck.

    Cameron Thompson and his son, J.C., brought this action seeking damages, which included, among other things, past medical expenses for injuries sustained in the accident. 

    Defendants retained Nancy Michalski to opine on the “reasonable value” of Cameron’s medical treatment. Of the $40,440.00 billed for medical services provided to Cameron, Michalski opined that the reasonable value of such services is only $33,166.60.

    Plaintiffs contended that Michalski’s opinions are inadmissible because the methodology Michalski used to arrive at her opinions violates Mississippi’s collateral source rule and because the opinions are otherwise not relevant or reliable.

    Medical Billing Expert Witness

    Nancy Fraser Michalski provides clients with practical ways to improve efficiency, quality, and outcomes of their bodily injury claims and litigation, including medical bill auditing, comprehensive claim reviews, medical record reviews, and life care planning. Drawing on her extensive experience as a nurse and medical billing expert, Michalski developed a methodology for medical bill audits that has been endorsed by peer review, as well as a patent pending system for medical record analysis.

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

    Discussion by the Court

    Relevance

    Plaintiffs asserted that any testimony at all “about the so-called ‘reasonable value’ of Plaintiff’s medical bills are [sic] simply not referred to or a factual issue at dispute.”

    Given the Defendants’ right to rebut the “necessary and reasonable” presumption regarding evidence of medical bills, it seems clear that Michalski’s opinions may be relevant. Having reviewed the parties’ submissions, including Michalski’s report and affidavit, the Court found that Michalski’s opinions are indeed directed at the “reasonableness” of the amount of the medical bills by focusing on the charges themselves for the medical services rendered.

    It is through Michalski’s opinions that Defendants are attempting to rebut the presumption that the medical bills incurred were necessary and reasonable, and by reducing the charges, they would thereby reduce the amount recoverable on the medical bills.

    Therefore, the Court found that, because Michalski’s opinions would assist the jury in determining whether the medical bills paid or incurred were necessary and reasonable by focusing specifically on the amounts charged, the opinions were relevant. 

    Reliability

    Whether Michalski’s opinions violate the collateral source rule

    Mississippi’s collateral source rule bars a tortfeasor from reducing the damages it owes to a Plaintiff ‘by the amount of recovery the Plaintiff receives from other sources of compensation that are independent of (or collateral to) the tortfeasor.’”

    In other words any “compensation or indemnity for the loss received by Plaintiff from a collateral source, wholly independent of the wrongdoer, as from insurance, cannot be set up by the latter in mitigation or reduction of damages.” Typically, the rule bars a Defendant from introducing evidence that a Plaintiff has received payments from a collateral source to reduce that Defendant’s liability for the damages.

    Plaintiffs contended that Michalski’s opinions ran afoul of the collateral source rule. To be sure, Michalski’s ultimate opinion is that the reasonable value of the medical services rendered is less than the amount billed. However, she did not arrive at this opinion based on payments made on behalf of Plaintiffs either by insurance or Medicaid/Medicare or evidence in the form of write-offs or self-pay discounts.

    Her ultimate opinion is based on what is essentially a “sub-opinion” that some of the rates charged were too high. Defendants emphasized, and the Court agreed, that Michalski’s proposed testimony is not that Plaintiffs’ recovery should be reduced by payment from an independent source; rather, it is that the charges are not reasonable when ultimately compared to charges from other similarly situated providers. Because Michalski does not arrive at her opinions, as Plaintiffs contend, by deducting, or even considering, payments, gifts, or write-offs from third parties, the Court found that Michalski’s opinions, on their face, do not violate Mississippi’s collateral source rule.

    Whether Defendants have shown the opinions are otherwise reliable

    Plaintiffs claimed that Michalski “has not sufficiently established that her method for projecting these future costs is generally accepted in the relevant scientific community.”

    However, there is no opinion by Michalski as to future costs. She addresses only past medical treatment. Plaintiffs also argue that “Michalski’s methodology differentiates between expected charges for services as opposed to a reasonable value or actual cost to a patient.” While the meaning of this statement is a bit unclear, Plaintiffs never explain which part of Michalski’s report employs such methodology.

    The Court is left to speculate about the methodology’s unreliability because these general statements lack sufficient explanation.

    Critiques go to the weight not the admissibility of the opinion

    To begin with, Michalski used several nationally recognized sources to determine the reasonable value of the charges. She consulted multiple pricing databases including Physician’s Fee Reference, PMIC Medical Fees, Find-a-Code, and the American Hospital Directory, and then applied a geographic adjustment factor for the location where the services were provided and ultimately arrived at her opinion as to the reasonable value of the medical services rendered to Cameron.

    In their Reply, Plaintiffs assert that medical treatment is not a commodity or services that is like other goods or services. Plaintiffs claim that medical providers have their own system, “Chargemasters,” which establishes the prices for treatment provided. The Court cannot accept a bald assertion in a party’s brief as fact.

    Additionally, Plaintiffs complained that by comparing Cameron’s providers to other “unidentified” providers, Michalski failed to account for the quality of services, the cost of the services, or the continuity of care, making her opinion, a comparison of apples to “unidentified oranges.” The Court held that these critiques go to the weight not the admissibility of the opinion.

    Finally, Plaintiffs argued that numerous other courts have excluded experts who have used Michalski’s exact same methodology, citing several cases. Because Plaintiffs have misunderstood Michalski’s methodology, the Court cannot agree. 

    Held

    The Court denied the Plaintiffs’ motion to exclude the opinions by Nancy Michalski.

    Key Takeaways:

    • Michalski’s opinions would assist the jury in determining whether the medical bills paid or incurred were necessary and reasonable by focusing specifically on the amounts charged.
    • To address every case cited would seem to be an exercise in futility because “a district court has broad discretion to determine whether a body of evidence relied upon by an expert is sufficient to support that expert’s opinion.” This Court exercises its discretion here, and trusts that those courts did the same with what they were presented and reached the correct result.

    Case Details:

    Case Caption: Thompson Et Al V. Intermodal Cartage Co., Llc. Et Al
    Docket Number: 2:24cv34
    Court Name: United States District Court, Mississippi Southern
    Order Date: May 19, 2025
  • Epidemiology Expert’s Opinions about the Risk of Breakthrough Infections Excluded

    Epidemiology Expert’s Opinions about the Risk of Breakthrough Infections Excluded

    Washington Governor Jay Inslee issued Proclamation 21-14 (“the Proclamation”), which required state employees to be fully vaccinated by October 18, 2021, to continue employment with the state. The Proclamation carved out an exception to the vaccination requirement for employees who were entitled to disability related accommodations or accommodations related to a sincerely held religious belief under relevant anti-discrimination laws, including Title VII and the Washington Law Against Discrimination (“WLAD”).

    This litigation concerns a number of Plaintiffs who requested religious accommodations from the Washington State Department of Fish and Wildlife (“WDFW”).

    While the Plaintiffs were initially granted religious accommodations, they were informed in late September of 2021 that “no reasonable accommodation” could be found because their jobs “must at times be done in the physical presence of others.” The Plaintiffs were subsequently terminated in November of 2021.

    Defendants filed a motion to exclude the expert opinion of Dr. Harvey Risch as well as those of Lisa Brock and John Cary.

    Epidemiology Expert Witness

    Harvey Risch is a practicing epidemiologist with more than 40 years of research and teaching experience. He is a Professor Emeritus of Epidemiology at Yale School of Public Health.

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

    Human Resources Expert Witness

    Lisa Brock has worked in human resources (“HR”) for over forty years. She spent the majority of her career in healthcare. Most recently, she worked as the HR director at Overlake Medical Center and Clinics.

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

    Vocational Rehabilitation Expert Witness

    John R. Cary is a certified rehabilitation counselor (CRC) and disability management specialist (CDMS) with over 19 years of experience in providing rehabilitation counseling and case management services to individuals facing socio-economic and psychosocial challenges, multiple morbidities, and language barriers. 

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

    Discussion by the Court

    Harvey Risch

    Risch submitted two expert reports—one on the efficacy of COVID-19 vaccines and vaccine mandates and one rebuttal report. 

    In the rebuttal report, Risch opined that the vaccine mandate failed to recognize that “post infection natural immunity” is as good as if not better than vaccination.

    Defendants objected to Risch’s opinions on the efficacy of COVID-19 vaccines, the role of natural immunity, and the Proclamation.

    Relevancy

    To begin with, Defendants maintain that “Risch’s opinions on the efficacy of COVID-19 vaccines, the role of natural immunity, and the Proclamation should be excluded for lack of relevancy,” as they will not assist the trier of fact in understanding “a fact in issue.”

    The Court concluded that Risch’s testimony about the efficacy of COVID-19 vaccines, the role of natural immunity, and the governor’s Proclamation requiring vaccination will be excluded for lack of relevance.

    Facial challenges to the Proclamation have been rejected and the vaccine mandate itself is not at issue in this litigation—only how WDWF applied it to its employees.  Accordingly, the Court held that testimony about the efficacy of the Governor’s vaccine mandate will not aid the “trier of fact to understand the evidence or to determine a fact in issue.”

    Moreover, Defendants argued that his opinions based on “information available after WDWF made accommodation decisions regarding Plaintiffs” must be excluded as not relevant.

    Besides, Defendants added that judging an employer’s undue hardship decision based on knowledge and information developed after the fact would hold that employer to an impossible standard. Risch asserted that WDFW cannot establish undue hardship because “the cumulative hardship would not have been inordinate compared to the larger breakthrough infection burden from the vaccinated staff.”

    Likewise, the Court excluded Risch’s conclusions about whether Defendants provided a reasonable accommodation or established undue hardship.

    Reliability

    Defendants argued that Risch’s opinions are not the product of reliable principles and methods because he does not state “what method of analysis he applies to any of the data he includes in his report.”

    As to Risch’s opinions about the risk of breakthrough infections, Defendants argued that he “fails to compare apples to apples.”

    In determining the number of WDWF employees who could have been expected to have breakthrough infections, Risch used CDC figure of 4.3%. The 4.3% figure represented the total number of vaccinated breakthrough cases by the total number of vaccinated people from April 2021 to December 2021: 5,988,636 divided by 139,768,554. 

    The Court held that not only were Risch’s calculations incorrect, but Risch offered no information or analysis comparing the job duties and responsibilities of the hypothetical employees who would suffer a breakthrough infection with those of the unvaccinated employees. For example, it is unknown whether any of these hypothetical employees teleworked full-time or otherwise interacted with co-workers or the public.

    Thus, even if there were hypothetical employees who suffered breakthrough infections, it impossible to evaluate whether those hypothetical employees would have, or would not have, posed a greater risk than the unvaccinated Plaintiffs in this case.

    Furthermore, the Court determined that Risch’s opinion about the 4.3% figure—that it “is also likely a very large undercount” is unreliable, as Risch does not cite any peer reviewed evidence or statistical analysis that suggests that the CDC figure is an undercount or account for whether CDC itself corrected for the factors Dr. Risch opines resulted in the undercount. 

    Lisa Brock

    In her report, Brock included a step-by-step best practices guide published by the Society for Human Resources Management (SHRM) on handling requests exemptions to a vaccine requirement. She testified that her professional opinion in the report is based on her experience as a “practitioner of human resources,” and specifically the experience she gained as an “HR practitioner during the time of the proclamation and the COVID vaccine.” 

    Defendants asserted that “despite her failure to engage in a comprehensive review of any Plaintiff’s accommodation process, Brock made several unsupported factual conclusions regarding WDFW’s accommodation process and also made impermissible legal conclusions.”

    The Court held that Brock relied on her personal experience and a paucity of documents to evaluate WDFW’s accommodations process. This extremely limited evidence did not “provide a complete picture of relevant events”—indeed, Brock did not review any documents specific to more than half of the Plaintiffs going to trial and did not review the accommodations policies that WDFW had in place. 

    The Court excluded Brock’s report because she offered opinions without a full understanding or knowledge of the facts of this case.

    John Cary

    On January 31, 2025—the final day of discovery—Plaintiffs submitted an expert rebuttal report from John Cary. The rebuttal deadline had been extended at the Parties request to January 14, 2025. 

    Rule 37 forbids the use of Cary’s expert report unless Plaintiffs are able to show that the failure was substantially justified or harmless. Plaintiffs could have requested leave from the Court for late supplementation but did not. Plaintiffs could have notified Defendants and the Court during the discovery hearing on January 30, 2025, but did not. Accordingly, the Court excluded Cary’s expert report.

    Held

    The Court granted the Defendants’ motions to exclude the opinions of Dr. Harvey Risch, Lisa Brock and John Cary.

    Key Takeaway:

    • The Court held that Risch did not base his critiques of the CDC’s methods in widely accepted scientific methods of analysis—and failed to explain the analytical method he is using.
    • Brock relied on her personal experience and a paucity of documents to evaluate WDFW’s accommodations process. Accordingly, because Brock’s testimony lacks support from sufficient facts or data and fails to sufficiently specify the method by which she reached her conclusions, the testimony does not satisfy the Daubert standard.

    Case Details:

    Case Caption: Shirley Et Al V. Washington State Department Of Fish And Wildlife Et Al
    Docket Number: 3:23cv5077
    Court Name: United States District Court, Washington Western
    Order Date: May 13, 2025
  • Family Medicine Expert Allowed to Testify Despite Her Lack of Experience in the Correctional Medical Context

    Family Medicine Expert Allowed to Testify Despite Her Lack of Experience in the Correctional Medical Context

    This litigation revolves around medical care, and the alleged lack thereof, provided to Plaintiff Peter George Noe between fall 2020 and late 2022, while incarcerated at the United States Penitentiary ADMAX in Florence, Colorado.

    Defendant filed a motion to exclude the testimony of Plaintiff’s retained expert, Dr. Kimberly A. Cullen, MD, arguing that Cullen does not qualify as an expert and that her testimony does not meet the reliability requirements of Federal Rule of Evidence 702.

    Family Medicine Expert Witness

    Kimberly Cullen is a primary care physician and board certified by the American Board of Family Medicine. She attended the University of Massachusetts Medical School and completed a three-year family
    medicine residency program at Swedish Family Medicine – First Hill in Seattle, Washington in 2018.

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

    Discussion by the Court

    Qualification

    Defendant first attacked Cullen’s qualifications as an expert, highlighting her limited experience, including no experience in the correctional medical context, and non-practicing status at the time of her deposition.

    The Court rejected Defendant’s argument that simply because Cullen has never worked in a correctional setting and because she may have had a brief gap in practicing as a primary care physician she does not qualify as a competent medical expert in this case.

    It is true that Cullen not only had several years of experience treating patients, including as a supervising physician, but she also has seen hundreds of patients treated or tested for UTIs and diagnosed and treated patients
    with degenerative disc disease, which is probative to the facts of this case.

    Reliability

    Defendant argued that Cullen’s opinions offered in this case, related to unreasonable delays in the care Noe received, including a failure to suspect a different source for Noe’s symptoms and pain, are unreliable because she does not specifically articulate a community standard of care and is relying on her experience as a young physician.

    Cullen clarified in her deposition that her opinions were based on the general
    standard of care and practice—the general practice of medicine.

    While Cullen’s opinions may be general as to why the Federal Bureau of Prisons (“BOP”) fell below the standard of care normally followed by a primary care physician, such as herself, the Court found that her specialized knowledge as a Colorado- licensed physician who is Board certified in Family Medicine would be helpful to the Court in determining the particular issues in this case.

    Held

    The Court denied the Defendant’s motion to exclude the testimony of Plaintiff’s retained expert, Kimberly A. Cullen, MD.

    Key Takeaway:

    Cullen’s opinions are more likely than not to be helpful and reliable given her review of Noe’s extensive medical records and the application of her knowledge, training, and experience as a primary care physician to the facts of this case.

    Case Details:

    Case Caption: Noe V. Seroski Et Al
    Docket Number: 1:21cv3340
    Court Name: United States District Court, Colorado
    Order Date: May 14, 2025
  • Life Care Planning Expert’s Testimony on Future Medical Care Needs Admitted

    Life Care Planning Expert’s Testimony on Future Medical Care Needs Admitted

    A July 2022 vehicle collision in Gallup, New Mexico, triggered a lawsuit claiming severe injuries. Plaintiff Jimmy Woodall claimed that Defendant
    Curt Moeller made an “unsafe lane change,” forcing his tractor-trailer into a guardrail.

    Woodall alleged that the crash caused him “severe and disabling injuries.” Woodall sued the Defendants, demanding  medical expenses along with damages for physical and mental pain and suffering, physical impairment, loss of enjoyment of life, and lost wages. 

    To support his claim for these future medical care needs as related to the injury that he sustained, Woodall hired life care planner Todd Capielano. Capielano relied on the opinions of Woodall’s treating physicians to form his own assessment of the costs Woodall was likely to face. However, Defendants filed a motion under Daubert, challenging Capielano’s qualifications, reasoning, and methodology, as well as his reliance on the opinions of Woodall’s treating physicians.

    Life Care Planning Expert Witness

    Todd Capielano has a bachelor’s degree in rehabilitation counseling, which he obtained from Louisiana State University Medical Center, School of Allied Health Professions. He also has a master’s degree in human services counseling from the University of New Orleans.
    In 2015, Capielano obtained a certification for life care planning from the University of Florida.

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

    Discussions by The Court

    A. Qualifications

    Defendants contended that Capielano relied on the opinions of Woodall’s treating physicians to fill in the gaps in his expertise. Because Capielano is not a physician and is not qualified to diagnose Woodall’s conditions, the Defendants argued that he cannot form a life care plan. 

    However, the Court held that a life care planner’s reliance on the medical reports of other experts, even when the life planner does not have the same medical qualifications, does not make the life care planner unqualified.

    Given that Defendants raised no other challenges to Capielano’s qualifications as a life care planner, the Court finds him qualified to testify as an expert regarding Woodall’s future medical expenses.

    B. Reasoning and Methodology

    Because Woodall’s treating physicians couldn’t quantify the extent of the aggravation to Woodall’s preexisting injuries, Defendants argued that Capielano’s life plan must be questionable. Additionally, they argued that this flaw in the life care plan “would mislead the jury and prejudice Defendants.” 

    According to the Defendants, the life care plan incorrectly includes all of Woodall’s future medical expenses, while they should only be liable for the portion caused by the vehicle collision.

    However, Woodall responded that the alleged shortcomings in the underlying medical opinions used to create the life care plan are properly addressed on cross-examination, not by excluding the life care plan entirely. The Court agreed.

    Given that the jury already will be tasked with determining the extent to which Defendants’ conduct exacerbated Plaintiff’s condition, the Court added that it will not unfairly prejudice the Defendants or mislead the jury to have the jury conduct the same inquiry with regard to what portion of future expenses is attributable to Defendants’ conduct.

    Held

    The Court denied Defendants’ motion to exclude the opinions of Plaintiff’s expert Todd Capielano.

    Key Takeaways:

    • Defendants made no argument that Capielano’s qualifications are insufficient within the field of life care planning; rather, they appeared to argue that life care planning performed by a non-physician cannot support expert designation as a categorical matter.
    • The trial will almost certainly involve discussions and inquiries about the preexisting injuries Woodall had and the extent to which they may have been aggravated by the collision in question. That is, the jury will determine the extent to which Woodall’s injuries and present condition are attributable to Defendants’ conduct, if any.

    Case Details:

    Case Caption: Woodall v. W. Express, Inc.
    Doket Number: 1:23cv862
    Court: United States District Court for the District of New Mexico
    Order Date: April 24, 2025
  • Neurology Expert’s Opinions on Medical Causation Are Not Outside the Scope of His Expertise  

    Neurology Expert’s Opinions on Medical Causation Are Not Outside the Scope of His Expertise  

    This civil rights action stems from the in-custody death of Kimberley Morrissey-Scalia while a pretrial detainee in Lerdo Pre-Trial Facility in Kern County.

    Plaintiffs filed a motion to preclude Defendants’ expert, Michael E. Gold, M.D., “from: (1) testifying to any opinions on medical causation that are outside the scope of his expertise; and (2) testifying as to his inadmissible legal conclusions – i.e., [his] legal opinions on ultimate issues of law.”

    Neurology Expert Witness

    Michael E. Gold is a physician licensed to practice medicine in the State of California and is Board certified in neurology. He obtained his medical degree from University of Illinois School of Medicine in 1981. He received his California State Medical license in July 1982 and underwent a residency in neurology at UCLA Neuropsychiatric Institute that concluded in 1985. Prior to that, he interned in internal medicine from 1981-1982 at UCLA.

    He became board-certified by the American Board of Psychiatry and Neurology in 1998. He operated as Section Head of the Department of Neurology at UCLA-Santa Monica Hospital and Medical Center from 1990 to 1996 and was an attending physician in that same department up until 2009. Gold is an Associate Clinical professor at UCLA Hospital and Neuropsychiatric Institute. He is a Qualified Medical Examiner for the State of California Worker’s Compensation Board.

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

    Discussion by the Court

    1. Opinions on Medical Causation

    Plaintiffs argued that Gold should not be permitted to opine that Scalia’s death was “due to an end-stage disease process, namely, liver cirrhosis and resultant coagulopathy” because he lacks expertise in those areas. Second, Plaintiffs filed a motion to exclude the opinion that “[h]ad Scalia been brought to Kern Medical Center after the first visit to the infirmary following the first fall, it would not have made a difference in the outcome.”

    Qualification

    Although Plaintiffs argued that Gold “is neither a neurosurgeon, nor an emergency medicine physician, nor a hepatologist, nor a hematologist, nor an expert in liver disease, cirrhosis, nor, inter alia, coagulopathy,” the Court held that the medical concepts implicated here do not exceed his expertise.

    In preparing his report, Gold reviewed relevant evidence including Lerdo Pre-trial Facility records of Scalia, the Coroner’s Report of Eugene Carpenter, Jr., and Kern Medical Center medical records and radiology studies.

    Moreover, the Court added that Gold’s experience as a neurologist is particularly relevant to inform his judgement in this case—where trauma to the head occurred which may have implicated neurological function—and his examination of the medical records and other case-related documents provide a foundation for the opinions expressed in his report. “[P]hysicians would accept [his testimony] as useful and reliable.”

    In his report, Gold considered several possible medical causes for Scalia’s death. For example, he considered brain compression and subsequent herniation. Gold also considered whether Scalia’s subdural hematoma was more consistent with cerebral atrophy due to an underlying condition.

    Gold also found that “there is evidence on CT scan and neuroradiology interpretation that part of the subdural hematoma was ‘chronic,’ indicating that head trauma preexisted prior to [Scalia’s] incarceration.”

    In his report, Gold relied on these findings and conclusions to support his opinion that “a minor, initially uncomplicated ‘bump’ on the head occurred during the progressive medical deterioration of Scalia that ultimately resulted in death due to an end-stage disease process, namely, liver cirrhosis and resultant coagulopathy.”

    Therefore, Gold’s findings and analysis provide support for his conclusion that Scalia’s death was not due to “the absence of timely intervention in the treatment of her subdural hematoma.”

    Legal Conclusions

    Defendants did not oppose Plaintiffs’ motion insofar as it sought to exclude Gold’s testimony as to legal conclusions. Instead, they requested a bilateral order requiring all experts to refrain from using legal conclusions in their testimony.

    The Court granted Plaintiffs’ motion in part, to preclude testimony by Gold as to legal conclusions. Here, medical expert testimony is appropriate to establish medical diagnoses and medical causation. Gold may thus offer opinions as to such matters, consistent with his expert report. However, neither Gold nor other medical experts shall testify at trial as to whether Defendants’ conduct was deliberately indifferent, reckless, unconstitutional, intentional, or in conscious disregard of the decedent’s rights.

    Held

    The Court granted in part and denied in part the Plaintiffs’ motion in limine to exclude certain testimony of Michael E. Gold.

    Key Takeaway:

    Gold’s opinions in this case were based on his education, training, and experience as a board-certified neurologist and his review of the relevant records. Under Daubert, the district court is tasked with “ensuring that junk science is kept out of the federal courtroom” by acting as a gatekeeper. The judge should “screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they are impeachable.”

    The Court held that Gold’s medical opinions met these gatekeeping tests. 

    Case Details:

    Case Caption: Perry Et Al V. County Of Kern Et Al
    Docket Number: 1:17cv1097
    Court Name: United States District Court, California Eastern
    Order Date: April 21, 2025
  • Intellectual Property Expert’s Opinion as to a Safer Design for a Splitting Maul Admitted

    Intellectual Property Expert’s Opinion as to a Safer Design for a Splitting Maul Admitted

    Plaintiff, Joseph Ferlito purchased a splitting maul (an axe specially designed for splitting wood) from Defendant, Harbor Freight Tools USA, Inc. in 2017. Several months later, while the Plaintiff was hanging the maul to store it, the head of the tool detached and struck Plaintiff, causing injuries to his nose and left eye. Plaintiff initiated this product liability lawsuit in 2020, alleging that the head detached due to a design defect.

    To support his defective design claim, Plaintiff sought to offer expert testimony by Mark Lehnert, who identifies himself as a “consultant with products and liability history, extensive knowledge and experience in manufacturing and assembly, [and] mechanical and electrical engineering management.”

    Defendant filed a motion to preclude Lehnert’s testimony, arguing that he is unqualified as an expert because he lacks engineering degrees, and his experience is limited to designing power tools rather than manual tools. Moreover, the Defendant contended that Lehnert’s opinion is unreliable because (i) he did not rely on any scientific, technical, or trade articles in preparing his report, and (ii) after completing the report, he entered a query into ChatGPT about the best way to secure a hammer head to a handle, which produced a response consistent with his expert opinion.

    Intellectual Property Expert Witness

    Mark Lehnert is an independent consultant with P&L history, extensive knowledge and experience in M&A, mechanical and electrical engineering management, and Intellectual Property processes. He is currently certified by the Supreme Court in Florida as a Mediator and Arbitrator in the 5th District.

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

    Discussion by the Court

    Lehnert’s Qualifications

    The Court held that Lehnert met the modest standards to qualify as an expert. Based on Lehnert’s experience designing products and supervising engineering teams, his opinion as to a safer design for a splitting maul will likely be helpful to a jury of laypeople. Lehnert’s lack of engineering degrees or professional licenses did not necessitate exclusion of his testimony; opposing counsel can address on cross-examination. Furthermore, the fact that Lehnert’s professional experience is limited to power tools did not preclude his testimony here.

    Reliability of Lehnert’s Testimony

    Initially, Lehnert’s report focuses almost exclusively on potential flaws in the design of Defendant’s maul and proposes an alternative design—specifically, incorporating a metal pin to better secure the maul’s head to its handle—that he asserted would be safer and cost-effective.

    Although Lehnert conceded he did not test his proposed design, he identified existing products, including other splitting mauls, that use such a pin, meaning that, testing is not required to establish the reliability of Lehnert’s testimony.

    Finally, the fact that Lehnert did not rely on any peer-reviewed articles in preparing his report is appropriately addressed via cross-examination rather than by exclusion.

    As a result, the Court determined that Lehnert’s proposed testimony satisfied the reliability standard.

    Lehnert’s Use of ChatGPT

    There is little risk that Lehnert’s use of ChatGPT impaired his judgment regarding proper methods for securing the maul’s head to its handle. The record from the hearing reflects that Lehnert used ChatGPT after he had written his report to confirm his findings, which were based on his decades of experience joining dissimilar materials.

    Since there is no indication that Lehnert used ChatGPT to generate a report with false authority or that his testimony’s reliability was diminished by AI, the Court finds no issue with his use of it here.

    Use of Hyperbole

    Defense counsel raised concerns at the hearing regarding Lehnert’s apparent inclination towards hyperbole, a view the Court is inclined to accept. Several instances occurred where Lehnert presented information in an overly broad manner, raising questions about its precision. Although these verbal embellishments, in themselves, do not warrant exclusion of the witness’s testimony, the Court advised Plaintiff’s counsel to ensure Lehnert is instructed to refrain from exaggeration when presenting his testimony to the jury.

    Held

    The Court denied Defendant’s motion to exclude Plaintiff’s expert witness, Mark Lehnert.

    Key Takeaway:

    The Court emphasized that experts can use “AI for research purposes” given its “potential to revolutionize legal practice for the better.” Daubert issues arise only “when attorneys and experts abdicate their independent judgment and critical thinking skills in favor of ready-made AI-generated answers.”

    Case Details:

    Case Caption: Ferlito V. Harbor Freight Tools USA, Inc.
    Docket Number: 2:20cv5615
    Court Name: United States District Court, New York Eastern
    Order Date: April 23, 2025
  • Engineering Expert’s Opinion on Cost Estimates Admitted

    Engineering Expert’s Opinion on Cost Estimates Admitted

    The Great Lakes Insurance Company issued a policy of insurance (the “Policy”) to Gulf Coast Bank and Trust (“Gulf Coast”) covering specific buildings owned by BRH Consultants, specifically, the Burbank Landing Apartments.

    Subsequently, BRH alleged that on August 29, 2021, Hurricane Ida caused damage to Buildings 1 and 2 of the property. Following this event, on September 9, 2021, a claim for damages resulting from the storm was submitted against the Policy.

    While Great Lakes paid certain sums under the Policy, the Plaintiff, BRH, claimed that these payments “were totally inadequate to pay the covered damage” to the property. Conversely, Great Lakes alleged that it had paid all sums due and contended that the claimed damages were not caused by Hurricane Ida and, therefore, fell outside the scope of coverage of the Policy.

    To substantiate its claim, BRH submitted the expert report of Dr. Jerry Householder, whom BRH described as “an accomplished engineer, construction professional, professor, author, and expert.” Nevertheless, Great Lakes filed a motion to exclude Householder as an expert in this case.

    Engineering Expert Witness

    Jerry Householder has a PhD in engineering and has been a licensed professional engineer since 1971. As an engineer, he has been the designer of record on over two billion dollars worth of constructed facilities, and as a contractor, he has constructed over one thousand projects.

    Householder was the Department Chairman of the Department of Construction Management at LSU, where he held a Distinguished Professorship in the College of Engineering. He has written eight books on construction that have been translated into several foreign languages.

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

    Discussion by the Court

    Rule 26(a)(B)(2) Deficiencies

    Great Lakes complained that Householder’s 2-page report is “wholly devoid of any analysis linking the facts of this case to his conclusory opinions.”

    While the report is short, the Court declared that it is clear from context that Householder used his extensive education and experience along with his review of the photographs and reports mentioned at pages 1 and 2 of his report to reach his conclusion that the cost estimates listed on page two of the report “are reasonable.”

    Furthermore, Householder expanded on his report in his extensive deposition and in a subsequent declaration.

    To the extent that Great Lakes feels it was surprised by any new information in Householder’s Declaration (which came after his deposition), the Court will allow for a follow up deposition of Householder limited to matters raised for the first time in his Declaration, if there are any.

    Methodology

    Great Lakes argued that Householder’s “report lacked crucial information concerning what methodology, if any, was used to produce those estimates” and “failed to explain how his expertise allowed him to arrive at his opinions.”

    Householder explained in his report that he “inspected the project on more than one occasion and reviewed numerous photographs” and reports which he itemized.

    Furthermore, Householder was questioned extensively at his deposition and, in addition, submitted a clarifying declaration. Therefore, the Court believed Householder’s methodology of applying his experience and professional training to the reasonableness of the costs items is a sufficient methodology.

    Great Lakes complained that Householder “did not inspect the [p]roperty, nor did he perform an independent analysis of the damage to the [p]roperty”. Instead, he relied on information provided by owner and others and did not “verify” the estimates. But this Court and others have held that physical inspection of the property by the testifying expert is not required in order for an expert to opine on the subject property as long as he was provided with underlying data sufficient to provide a basis for his opinions.

    Regarding Great Lakes’ argument that Householder was required to verify the data provided by his client and not rely on its accuracy for purposes of his expert testimony, this Court and others have rejected such an argument.

    Sufficiency of Foundation

    Great Lakes argued that Householder’s opinions lacked a sufficient foundation because he “relied on insufficient facts and data,” namely, the “limited, inaccurate, undocumented, and/or selfserving, representations of the [p]roperty’s owner . . . .”

    However, the Court carefully reviewed Householder’s report and found that there is a sufficient foundation for Householder’s opinions.

    But Great Lakes’ attack on sufficiency is really an attack on Householder’s reliance on what it alleges are the “limited, inaccurate, undocumented, and/or self-serving, representations of the [p]roperty’s owner . . . .”

    According to the Court, the alleged weaknesses, insufficiencies, inconsistencies, and inaccuracies of Householder’s opinions and the data upon which he relied may be tested by the Defendant on cross examination before the jury.

    Held

    The Court denied the Defendant Great Lakes Insurance SE’s Daubert motion to exclude the testimony of Dr. Jerry Householder.

    Key Takeaways:

    • In determining a party’s compliance with Rule 26, the Court may consider the information gathered in the deposition taken after the report which supplements or explains more fully the information conveyed in the report. The Court found that the original report, especially when supplemented and clarified by Householder’s extensive deposition and his declaration, met the criteria of Rule 26(a)(2)(B).
    • It is evident that Householder did not merely rely on assumptions but, viewing the photographs and reports of others and relying on his pre-Ida inspections of the property and his extensive experience in construction costs, concluded that the estimates provided were reasonable.

    Case Details:

    Case Caption: Gulf Coast Bank And Trust Company Et Al V. Great Lakes Insurance SE
    Docket Number: 3:23cv1444
    Court Name: United States District Court for the Middle District of Louisiana
    Order Date: April 16, 2025