Essentially, this case involves a civil rights and state tort claim stemming from the fatal shooting of Mickel Lewis, Sr., by Kern County Sheriff Deputy Jason Ayala on October 2, 2020. Therefore, the central legal question is whether Deputy Ayala’s use of deadly force was justified.
Consequently, the Plaintiffs have filed a motion to exclude the testimony of the defense’s human factors expert, Michael J. Kuzel, arguing he lacks the necessary expertise to analyze police shooting scenarios. Specifically, they contended that Kuzel’s qualifications regarding police practices and training are insufficient, citing his lack of relevant certifications, recent publications, and studies specific to law enforcement shootings.
Human Factors Expert Witness
Michael Kuzel has a bachelor’s degree in Bioengineering from Arizona State University, a master’s degree in Industrial Engineering (with an emphasis in Human Factors Industrial Engineering) from Arizona State University, and a second master’s degree in Applied Psychology (with an emphasis in Human Factors Sensation of Perception) from Arizona State University.
Kuzel indicates that he has investigated and evaluated cases as a reconstruction, injury biomechanics, and human factors expert, and that he has completed a forty-hour Force Science Analyst course offered by Force Science.
Kuzel analyzed the shooting incident based on provided discovery materials, including witness depositions and the Plaintiffs’ complaint. He claims his conclusions are scientifically sound. Kuzel’s report details his observations, asserting that Mickel Lewis, Sr.’s actions led Deputy Ayala to believe he posed a threat, potentially armed. Kuzel also opines on the sequence of shots, suggesting the first two struck Lewis, Sr. in the chest. His final conclusions support the defense, stating that Ayala’s perception of danger was reasonable, that Lewis, Sr.’s movements indicated he was retrieving a weapon, that Ayala had less than a second to react, and that his use of force was justified.
Plaintiff’s Objections
The Plaintiffs in this civil rights and state tort action have lodged a strong challenge against the qualifications of Michael J. Kuzel, the defense’s proffered “human factors” expert. Their central argument rests on the assertion that Kuzel lacks the requisite expertise to provide credible testimony concerning perception/reaction time, risk analysis, and other human factors specifically within the context of a police shooting.
They highlight the absence of licenses or certifications related to police practices or training, a crucial deficiency when evaluating the actions of law enforcement officers. Furthermore, they emphasize Kuzel’s lack of recent publications or studies directly addressing officer-involved shootings, questioning his practical understanding of the unique stressors and decision-making processes involved. The Plaintiffs contend that Kuzel’s qualifications regarding law enforcement responses are “exceedingly thin,” effectively disqualifying him from offering expert opinions on this specialized subject.
The Plaintiffs challenge the scientific reliability of Kuzel’s opinions. His assertions regarding Deputy Ayala’s stress response, perception of threat, and decision-making process lack a clearly defined and supported methodology. While Kuzel provides a summary of relevant literature, he fails to adequately connect his opinions to specific methodologies or bridge the gap between the literature and his conclusions.
Defendant’s Counterarguments
The Defendants assert Kuzel’s expertise in “human factors,” defined as the study of human abilities, limitations, behaviors, and processes. However, a significant discrepancy arises between this general expertise and the specific opinions presented in Kuzel’s report. He ventures into areas well beyond the scope of general human factors, opining on the trajectory of bullets, the likely impact points on the deceased’s body, and the interpretation of body movements in relation to gunshot wounds. The Court ruled that the Defendants failed to provide any justification for Kuzel’s qualifications in these specialized areas, particularly in forensic analysis and wound ballistics. Opinions regarding the correlation between bullet wound locations and body movements, such as a counterclockwise turn, clearly require specialized expertise that Kuzel demonstrably lacks.
The Defendants’ stance has shifted throughout the proceedings. Initially, Kuzel’s report presented a wide range of conclusions and opinions. However, in their opposition to the Plaintiffs’ motion and during the hearing, the Defendants conceded that Kuzel is not a police practices expert and that many of his conclusions fell outside his area of expertise. They now assert that his testimony will be limited to human perception and reaction time under stress. However, even within this narrowed scope, the Plaintiffs maintain that the Defendants have failed to establish Kuzel’s relevant qualifications and experience.
The “Certifications and Trainings” section of Kuzel’s curriculum vitae reveals no training or certification related to the use of force, and his publications primarily focus on automobile, bicycle, and pedestrian collisions, or trip hazards, none of which involve officer-involved shootings. Furthermore, the Defendants have not demonstrated that Kuzel has previously testified as a human factors expert in police shooting cases.
Analysis
Without a transparent and scientifically sound methodology, the Court is unable to assess the reliability of Kuzel’s opinions regarding the “human factors” that may have influenced Deputy Ayala’s actions.
Held
The Court granted the Plaintiffs’ motion in limine to exclude Defendants’ expert Michael J. Kuzel.
Key Takeaways:
Expert Witness Qualifications are Critical: Specifically, this case underscores the importance of rigorously scrutinizing the qualifications of expert witnesses, particularly in cases involving complex issues like police use of force. However, general expertise in a field does not automatically qualify an expert to opine on highly specialized subtopics.
Methodology Must Be Transparent and Reliable: Ultimately, expert opinions must be grounded in sound and transparent methodologies. In contrast, a mere summary of literature without a clear connection to the expert’s conclusions is insufficient.
Essentially, Fulton and Mitchell alleged that they were wrongfully convicted of murder due to fabricated witness testimony and coerced false confessions by Chicago police officers. Consequently, they filed lawsuits claiming constitutional violations. As their trial date approached, the defense sought to introduce Dr. Diana Goldstein because of her extensive background, experience, and specialized knowledge as a clinical and forensic neuropsychologist.
Neuropsychology Expert Witness
Diana S. Goldstein, PH.D., ABPP is a licensed and board-certified clinical neuropsychologist who has been practicing for more than 20 years. She earned a master’s degree and a Ph.D. from The Chicago Medical School in clinical psychology and completed a post-doctoral fellowship in clinical neuropsychology at the University of Chicago Medical Center. She has lectured at various medical schools on the subjects of psychiatry and behavioral neuroscience.
Currently, Goldstein is the president, CEO, and director of neuropsychology at Michigan Avenue Neuropsychologists in Chicago, Illinois, where she provides neuropsychological and psychological outpatient evaluations and treatments. She additionally serves as the Director of Neuropsychology for the Isaac Ray Forensic Group, LLC. In this role, she conducts forensic evaluations and consults in criminal and civil cases including cases that involve custodial confessions.
The core of the dispute revolved around Goldstein’s qualifications and the reliability of her methodology. Firstly, the Court emphasized that expert qualification is not a general assessment, but rather a specific inquiry into whether the expert’s skills and knowledge align with the precise questions at hand. In this instance, while Goldstein possessed extensive credentials as a clinical neuropsychologist, the Court found her lack of direct research experience and publications regarding false confessions to be a significant deficit.
Furthermore, the Court questioned the reliability of Goldstein’s methodology. Her report heavily critiqued the body of false confession research, often dismissing peer-reviewed studies as methodologically flawed. However, she provided little explanation for these critiques. Specifically, the Court noted instances where she appeared to offer personal opinions rather than data-driven analyses. For instance, she would say a 15% false confession rate was “relatively small” without solid comparison. Also, the Court noted that her methodology was basically a literature review, without any original research of her own.
Moreover, the Plaintiffs argued, and the Court agreed, that Goldstein’s opinions ventured into legal territory, effectively usurping the Court’s role. Specifically, her broad critiques of the false confession research field were seen as attempts to undermine the very foundation upon which such expert testimony rests.
Held
The Court granted Plaintiff’s motion to exclude the testimony of Dr. Diana Goldstein.
Key Takeaway:
This ruling underscores the Court’s commitment to upholding rigorous standards for expert testimony, particularly in cases involving complex social science evidence like false confessions. It serves as a reminder that experts must possess the specific qualifications and employ reliable methodologies to ensure their testimony assists the trier of fact.
Case Details:
Case Caption:
Fulton V. Bartik Et Al
Docket Number:
1:20cv3118
Court:
United States District Court for the Northern District of Illinois, Eastern Division
In a recent Michigan case involving allegations of sexual abuse against visually impaired minors in public schools, the admissibility of expert psychiatric testimony became a focal point. Specifically, the Court grappled with challenges to Dr. Gerald Shiener‘s expertise and methodology.
Plaintiffs presented Shiener, a psychiatrist, to testify on the “causation and damages” related to the children’s psychiatric issues stemming from the alleged abuse. However, Defendants argued that Shiener lacked sufficient expertise in child psychiatry, given the plaintiffs’ ages at the time of the incidents and evaluations. Consequently, they sought to exclude his testimony.
Psychiatry Expert Witness
Dr. Gerald A. Shiener is a board-certified psychiatrist with over four decades of clinical experience, specializing in forensic psychiatry, addiction psychiatry, geriatric psychiatry, and psychosomatic medicine.
Shiener earned his Doctor of Medicine degree from Michigan State University College of Human Medicine. He completed his residency in psychiatry at Sinai Hospital of Detroit. His training included inpatient psychiatry, emergency psychiatry, adolescent psychiatry, and consultation-liaison psychiatry. He also completed an honorary clinical assistantship at London Hospital Medical College under Professor Desmond Pond.
Firstly, Plaintiffs countered that Shiener’s extensive experience, including his role as Chief of Psychiatry at a trauma center where he treated sexually abused children, his residency training in child psychiatry, and his appointment to a juvenile mental health advisory committee, qualified him to opine on the matter. Conversely, Defendants dismissed this experience, arguing that his residency training was decades old and his overall practice lacked a focus on forensic child psychiatry. In essence, the Defendants primarily argued that Shiener lacked the specific expertise required to testify on the psychiatric impact on child victims of sexual abuse. They contended that his experience in child psychiatry was limited, particularly in forensic settings, and that his relevant training was outdated. Thus, they challenged his credentials, asserting that he was not a sufficiently qualified “child psychiatrist.”
Nevertheless, the Court ruled that it was not necessary for Shiener to have spent the majority of his time focused on child psychiatry in order to offer relevant opinions. Indeed, Shiener has received formal training in the psychiatric treatment of minors, and in addition, he has experience treating this population, including with respect to sexual abuse. Therefore, the initial objection based on a lack of child psychiatry expertise was largely dismissed.
Methodology:
Furthermore, Defendants raised concerns about Shiener’s methodology. They alleged he: failed to adequately review medical and school records, over-relied on maternal reports, used outdated assessment approaches, specifically the multi-axial assessment approach that was eliminated from the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, failed to rule out alternative causes, provided speculative opinions lacking data, and failed to cite reliable scientific literature.
Conversely, the Plaintiffs defended Shiener’s methodology, arguing that he had utilized a variety of sources, including depositions, police reports, and his own evaluations. They also argued that reliance on the DSM-IV was acceptable, as it closely approximated the DSM-V in relevant areas, and that his clinical experience allowed him to make his professional judgements. Additionally, they provided an affidavit from Shiener, that backed up his methods, and reasoning.
Reliability:
More importantly, the Court addressed the reliability of Shiener’s methods. Specifically, Defendants criticized his reliance on the DSM-IV, which has been superseded by the DSM-V. However, the Court found that while the DSM-V is the current version, the DSM-IV was sufficient for diagnosis of PTSD in this case, because there is significant overlap between the two versions. Thus, the diagnosis of PTSD was admissible. Furthermore, the Plaintiffs argued that Shiener’s experience, allowed him to form his opinions, and that the DSM-IV was sufficient for the diagnosis of PTSD.
Multi-Axial Assessment:
However, the Court prohibited Shiener from using the DSM-IV’s multi-axial assessment approach, which was phased out in the DSM-V. Because the Plaintiffs failed to demonstrate the reliability of this outdated system, the Court deemed it inadmissible.
Causation and Prognosis:
Defendants also objected to Shiener’s opinion that Plaintiffs’ psychiatric diagnoses arose from sexual abuse, arguing that his opinions on this issue did not address any “other external circumstances,” in addition to being conclusory and unsupported.
The Court excluded Shiener’s opinions on causation, prognosis, and treatment. Namely, his statements regarding the cause of the Plaintiffs’ conditions were deemed conclusory and lacked adequate explanation. Similarly, his opinions on prognosis and treatment lacked sufficient support from scientific literature. Consequently, these aspects of his testimony were deemed inadmissible.
While acknowledging some oversights, the Court noted that Shiener did utilize various sources, including depositions, police reports, educational records, and his own evaluations. Additionally, the Court recognized that experts conducting their own evaluations aren’t always required to review all medical records.
Held
In conclusion, the Court granted in part and denied in part the Defendants’ motion to strike Dr. Gerald Shiener’s testimony. His diagnoses, particularly of PTSD, were deemed admissible, while his multi-axial assessments, causation opinions, prognosis, and treatment recommendations were excluded.
Key Takeaways:
Even with broad psychiatric qualifications, specific expertise relevant to the case (e.g., child psychiatry in cases involving child victims) can be challenged.
Outdated methodologies (like the DSM-IV’s multi-axial assessment, a feature of the DSM-IV that was phased out in the DSM-V) can be grounds for excluding expert testimony.
Allyson Bolden sued SharkNinja after sustaining injuries while using their Intellisense Kitchen System food processor. Bolden claimed a design defect led to the lid jamming, resulting in her injury when trying to remove it. Defendant SharkNinja challenged the admissibility of Plaintiff’s expert, Dr. Wade Lanning‘s, testimony, arguing his qualifications, reliability, and relevance were lacking.
Lanning, a materials scientist and safety engineer, conducted a thorough analysis of the food processor. His key findings included:
Design Flaw: The lid could be attached in a misaligned manner, locking into place without engaging the safety mechanism, leading to jamming.
Jamming Mechanism: Testing revealed the lid could jam due to this misalignment, consistent with Bolden’s experience. Scratches on Bolden’s bowl supported this conclusion.
Lack of Warnings: The product manual lacked warnings about lid jamming.
Ineffective Engineering Controls: The flexible bowl and shallow lug/notch design failed to prevent misalignment.
Alternative Designs: Lanning suggested safer alternatives, like a square lid or twist-to-lock mechanism, already used in other products.
Causation: He concluded the jammed lid, lack of warnings, and inadequate safeguards proximately caused Bolden’s injuries.
Materials Science Expert Witness
Wade Lanning is a forensic investigator who uses his expertise in materials science and engineering to determine how and why a failure or accident occurred. Lanning is also a safety engineer and analyzes how product design, manufacturing, instructions and warnings, and consumer behavior relate to an accident. Lanning investigates incidents of any scope, from minor property damage to major accidents involving loss of life. He also works as a consultant in material processing, failure analysis, and risk management, and conducts research in forensic investigation and accident prevention.
SharkNinja argued Lanning, a materials scientist, was unqualified to opine on warnings.
The Court found Lanning’s experience in safety engineering and assessing warnings in consumer products, including food processing machinery, sufficient. Lack of specialization impacts weight, not admissibility.
Reliability
SharkNinja claimed Lanning’s force testing was inadequate and his opinions on alternative designs and causation were unreliable.
Force Testing of Jamming
Sharkninja claimed he did not test the force required to assemble the lid in a jamming fashion. The Court found that this was incorrect, and that Lanning had indeed performed force testing. Sharkninja then tried to change their argument, which the Court deemed waived. The Court also stated that even if the argument was not waived, that Lanning’s testing was sufficient.
Force Testing of Lid Removal
Sharkninja claimed that Lanning should have tested the force required to remove a jammed lid. The Court determined that his testing on the force of jamming, and the analysis of the damaged food processor was sufficient.
Alternative Designs
The Court deemed that testing of alternative designs was not always required, especially when certain of the alternative designs already exist in the industry. Moreover, the alternative designs are not complex.
Warning Opinions
Plaintiff did not allege that Bolden was injured because she did not know how to remove the lid under ordinary circumstances but instead that she was unable to remove the lid normally due to the jam which stopped the handle from raising fully and that no warnings were provided regarding risks associated with the lid jamming.
The Court ruled that Lanning’s warning opinions were not contrary to the record, as claimed by the Defendant.
Relevance
SharkNinja argued Lanning’s causation opinion was irrelevant as his test didn’t perfectly replicate Bolden’s experience.
The Court found Lanning’s test replicated the core of Bolden’s experience: the lid not releasing fully through the use of the release button, requiring removal of the lid through other means.
Held
The Court held that Wade Lanning is qualified, has employed a reliable methodology, and his opinions are relevant, and accordingly denied Defendant’s motion to exclude Lanning.
Key Takeaways:
The Court emphasized that:
Daubert doesn’t require specific credentials; relevant expertise is sufficient.
2. Reliability can be established through scientific methods or professional experience.
3. Lack of specialization impacts weight, not admissibility.
4. Testing is one measure of reliability, but not always required.
5. Imperfect testing is a matter for cross examination.
Sabelita Hawkins experienced a psychotic episode in 2011, leading to hospitalization and subsequent treatment at the Puget Sound Veterans Hospital. She alleges that despite informing Dr. Daniel Doan that her prescribed medication was ineffective, no changes were made to her treatment. Later, Dr. Carl Jensen diagnosed her with PTSD but also did not modify her care. A second psychotic episode resulted in Hawkins attacking her mother and facing arrest.
The Government retained Russell Vandenbelt, M.D., a licensed psychiatrist, and Michael Kovar, M.D., a licensed family medicine physician, as experts to opine on Doan’s and Jensen’s treatment of Hawkins. Hawkins sought to exclude both Vandenbelt’s and Kovar’s testimony on the basis that their opinions are neither reliable nor relevant to Hawkins’ allegations.
Psychiatry Expert Witness
Russell Vandenbelt specializes in behavioral medicine, and has over three decades of clinical experience as a licensed psychiatrist. He is also a “certified specialist” in addiction medicine, serves as a psychiatric consultant to medical, nursing, and pharmacy boards in Washington, and previously worked as a staff physician “managing patient withdrawal syndromes from opiates, alcohol, stimulants, and sedative-hypnotics.”
Michael Kovar is a family medicine physician with clinical interests in behavioral medicine. He has served as a board-certified family medicine physician and an assistant clinical professor at the University of Washington School of Medicine.
The Government retained Vandenbelt to conduct a “review of records regarding the adequacy of mental health treatment provided to Hawkins” and to “opine on the standard of care for Hawkins’ psychiatrist, Carl Jensen.”
Hawkins contended that Vandenbelt’s report (1) did not reflect his experience and knowledge (2) did not sufficiently explain his methodology; and (3) was not supported by “sufficient facts and data” or “medical analysis.”
Reliability of Standard of Care Testimony
Vandenbelt’s testimony reflects his specialized experience in “diagnosing, assessing, and treating” patients “with medication and psychotherapy.”
The Court rejected the argument that he lacked the knowledge to discuss medication effects and interactions, given his experience in addiction medicine.
In conclusion, the Court found Vandenbelt’s testimony on the standard of care to be reliable.
Methodology
The Court determined that Vandenbelt’s report sufficiently explained his methodology because he reviewed Doan’s and Jensen’s treatment decisions, applied his understanding of standard of care principles to the facts in the records, and used this information collectively to form his opinion that “Doan and Jensen provided adequate and appropriate treatment” of Hawkins’ symptoms based on the information they had at the time of treatment.
In deciding whether to exclude Vandenbelt’s testimony before trial, the Court “is not tasked with deciding whether he is right or wrong” and may “not exclude his opinions merely because they are impeachable.”
Daubert requires only that Vandenbelt’s testimony has “a reliable basis in the knowledge and experience of his discipline.” A psychiatry expert may testify about the adequacy of treatment a patient received based on a review of that patient’s past medical records.
Relevance
Hawkins also sought to exclude Vandenbelt’s testimony on relevance grounds, asserting that his testimony has “no clear connection” to her medical malpractice allegations.
In this case, the Defendants’ adherence to the standard of care is a necessary element of Hawkins’s medical malpractice claim, and therefore has a “valid connection” to this case.
The Court found Vandenbelt’s testimony on the standard of care relevant, as it directly addressed a key element of Hawkins’ malpractice claim.
Causation
Vandenbelt’s report opines on whether Doan and Jensen “acted inappropriately or below the standard of care” in treating Hawkins. However, Vandenbelt did not provide any opinion on causation.
To the extent that the Government sought to call Vandenbelt to testify about the cause of Hawkins’ second psychotic episode, however, the Court excluded that causation testimony. The Court reinforced that an expert cannot testify to matters outside their report.
Michael Kovar
The Government intended to introduce Kovar’s testimony that Doan “met the standard of care” in treating Hawkins and that Doan’s “actions neither caused nor could have prevented” Hawkins’ subsequent attack on her mother.
Hawkins sought to exclude Kovar’s testimony for the same reasons she sought to exclude Vandenbelt’s testimony.
Qualifications
The government countered that Kovar has over 28 years of clinical experience as a family medicine practitioner. Kovar’s report reflects his specialized experience serving as a board-certified family medicine physician, an assistant clinical professor at the University of Washington School of Medicine, and his clinical interests in behavioral medicine.
The Court agreed, noting that Kovar’s experience allowed him to analyze whether Doan’s treatment met the standard of care for a family medicine physician.
Hawkins argued that Kovar lacked the expertise to discuss the effects of oxycodone, alcohol, and antibiotics on her mental state. But as a family medicine physician with clinical interests in behavioral medicine, Kovar has knowledge and experience treating adults with medications. Kovar is therefore qualified to testify about medication effects and interactions.
Methodology
Hawkins also argued that Kovar’s report “did not contain an explanation of the methodology” he used to develop his opinion and “provided [only] a blanket opinion without further medical analysis.”
Kovar’s report explained, however, that he reviewed Hawkins’ complaint and the “pertinent medical records available to Doan at the time of Hawkins’ ” treatment with Doan. Kovar then reviewed Doan’s treatment decisions, applied his understanding of standard of care principles to the facts in the records.
The Court determined that Kovar’s “specialized knowledge and experience can serve as the requisite ‘facts or data’ on which he renders an opinion.” While Hawkins disagrees with Kovar’s conclusions, asserting that they are based on “misstated facts,” the Court may “not exclude Kovar’s opinions merely because they are impeachable.”
Relevance
Hawkins also argued that Kovar’s testimony has “no clear connection” to her medical malpractice allegations. The Court disagreed, stating that Kovar’s opinions on the standard of care and causation were directly relevant to the necessary elements of Hawkins’ claim.
Doan’s adherence to the standard of care and the causal link between his alleged negligence and Hawkins’ injuries are necessary elements of Hawkins’ medical malpractice claim.
Hawkins may test the expert witness’ credibility by cross-examining them about their methodology, sources, and conclusions at trial.
Held
The Court denied Hawkins’ motions to exclude Russell Vandenbelt and Michael Kovar.
Key Takeaway:
Hawkins V. United States highlights the critical role of expert testimony in medical malpractice cases and the court’s rigorous application of Daubert standards. The court’s decision underscores the importance of qualified experts, reliable methodologies, and relevant testimony. This case provides valuable insights for legal professionals and anyone interested in the intersection of law and medicine.
In a recent legal dispute, the admissibility of expert testimony regarding medical imaging and its correlation to PTSD research was challenged. Specifically, this case highlights the importance of timeliness and the application of Rule 702 of the Federal Rules of Evidence in evaluating expert qualifications and the reliability of their opinions.
Initially, the Defendant filed a motion in limine to limit the testimony of Travis Snyder, DO, an expert witness for the Plaintiff. Furthermore, the Defendant argued that Snyder was unqualified to testify on “imaging findings of PTSD” and that his opinions lacked supporting scientific data.
Neuroradiology Expert Witness
Travis Snyder is a neuroradiologist, with a certified sub-specialty in diagnosing and characterizing disorders of the nervous system, including the spine and brain. He is the residency director of radiology at Mountain View HCA hospital system and holds various academic appointments with 4 regional medical schools.
Firstly, the Defendant argued that Snyder, despite his expertise, was not qualified to interpret medical imaging specifically in the context of diagnosing or identifying PTSD. Moreover, the Defendant claimed that Snyder’s opinions lacked a solid foundation in established scientific data. In particular, they argued that he hadn’t provided concrete evidence, such as specific studies or research, to back up his claims about the correlation between imaging findings and PTSD.
Plaintiff’s Opposition and Clarification:
In response, the Plaintiff explicitly stated that Snyder would not be offering a diagnosis of PTSD based on his imaging findings. Instead, Snyder’s testimony would focus on a more limited and, according to the Plaintiff, qualified area: “whether certain imaging findings are consistent with patterns observed in PTSD-related research,” which is in line with his expertise.
Court’s Observations and Rulings:
The Court emphasized that the Defendant’s motion was filed significantly after the deadline for motions to exclude expert testimony, and no “good cause justification” was provided for the delay.
Additionally, the Court determined that Snyder’s disclosed opinions were sufficient to meet the requirements of Rule 702, which mandates that expert testimony be relevant and reliable.
Qualification
The Court found that Snyder’s CV and deposition testimony demonstrated his qualifications to draw correlations between imagery and other scientific research.
Reliability
The Court deemed Snyder’s opinion regarding the link between PTSD and abnormalities in the hippocampus in peer-reviewed studies as sufficiently reliable and relevant.
The Court clarified that Snyder will be permitted to offer the challenged opinions insofar as he does not seek to make a diagnosis and otherwise testifies consistently with his disclosed findings.
Held
The Court denied the Defendant’s motion to limit the testimony of Travis Snyder.
Key Takeaways:
Timeliness Matters: Motions challenging expert testimony must be filed within designated deadlines.
Rule 702 Gatekeeping: Courts have a duty to ensure expert testimony is relevant and reliable, focusing on qualifications and a sufficient factual basis.
Scope of Expertise: Experts must testify within the bounds of their qualifications and disclosed opinions.
This is a dispute regarding uninsured motorist (“UIM”) coverage. Perez was a passenger in a car accident on April 18, 2018, and sought coverage for past and future medical expenses arising from this accident under an Allstate insurance policy. Perez intended to rely on the expert opinion of Dr. David Badger at trial.
The March 2022 report summarized Perez’s medical treatment after the accident, her current symptoms, notes from the in-person examination, and states four diagnoses, with a treatment plan and estimated cumulative cost. Badger also stated, “All diagnoses listed above are due to the motor vehicle accident of 04/28/2018 on a more probable than not basis.”
The June 2024 report reiterates Perez’s medical treatments since the accident and ends with Badger discussing specific questions, including whether Perez’s current symptoms relate to a preexisting condition, whether Perez suffered permanent injury, and whether and to what extent Perez will need future treatment.
Perez then attempted to deliver a third “report” to Allstate in the form of a letter attached to an email on November 22, 2024, but the email and attachments were not received by Allstate until January 14, 2025. Allstate moved to exclude portions of Badger’s opinion.
Orthopedic Surgery Expert Witness
David Badger is a board-certified orthopedic surgeon with over thirty-five years’ experience, including treating trauma-related injuries from motor vehicle accidents and a concentration in sports medicine. He has performed over ten thousand rotator cuff surgeries over the course of his thirty-five year career, and has provided expert medical opinion testimony on thirteen previous occasions in other Superior Court cases in Washington.
Allstate sought to exclude multiple portions of Badger’s opinion. The Court will address each argument in turn.
Badger May Testify About Perez’s Headaches
Allstate avers that Badger’s opinion diagnosing Perez with “posttraumatic cervicogenic pain with headaches” should be excluded because Badger is not qualified, and his opinions are not reliable or relevant.
Badger identified various examples in his career when he diagnosed or was exposed to patients with cervicogenic headaches. The evidence showed that Badger did not just “believe he can diagnose” cervicogenic headaches, but that he has done so in his practice.
While Allstate’s arguments that Badger has not received specialized training or is unaware of certain diagnostic criteria are areas ripe for cross-examination, the Court held that Allstate has not shown that Badger is unqualified to diagnose cervicogenic headaches such that his testimony is inadmissible.
Allstate also pointed to conflicting evidence to undermine Badger’s diagnosis, which is proper for cross-examination but does not make Badger’s testimony inadmissible.
Lastly, Allstate argued that Badger “provided no information about how he reached [this diagnoses] or what information he relied upon to determine that she had an impaction injury to her greater occipital nerve at the base of her skull.” However, Badger can “expand or explain information contained in his report during oral testimony.” Thus, while any new opinions would be improper, the Court held that Badger may connect his diagnoses with the facts and assessments provided in his report.
Badger May Testify About Perez’s Shoulder
Allstate argued that Badger’s opinion on Perez’s shoulder pain and diagnosis of a right rotator cuff tear should be excluded because it lacks corroborating evidence. Like Allstate’s argument about the reliability of Badger’s opinion on Perez’s headaches, the Court held that the lack of shoulder imaging, other doctors’ corroboration, or fulsome explanation connecting the injury and accident is appropriate for cross-examination, but did not go to admissibility.
Badger May Testify About Perez’s Pre-Existing Conditions
Next, Allstate asserted that Badger cannot opine on Perez’s past medical conditions because he did not review any medical records from before the 2018 accident.
But Badger’s report included a section entitled “Past Medical History” indicating he obtained some information regarding Perez’s past medical conditions and history. There is some basis for Badger’s opinion. The Court held that whether more reliable or conflicting evidence on any pre-existing conditions exists is a matter appropriate for cross-examination or Allstate’s case-in-chief.
The Court LimitsBadger’s Testimony on the Permanency of Perez’s Injuries
Badger’s March 2022 report did not state any opinions regarding the permanency of Perez’s injuries or pain. The June 2024 report stated Perez “has not undergone sufficient treatment to determine whether she has permanent injury.”
Badger’s deposition testimony reiterated this opinion. But during Badger’s deposition, Perez’s counsel attempted to obtain testimony about her ongoing pain and symptoms. Perez then attempted to submit an untimely third expert report in the form of a November 22, 2024 letter stating
“However, even if she were to undergo some or all of the recommended treatments she will still have some degree of residual symptoms and limitations from her collision related injuries for the remainder of her life. This is on a more probable than not basis, to a reasonable degree of medical certainty.”
Perez’s efforts to add a new opinion about the permanency of Perez’s injuries to Badger’s report failed when the deposition testimony went beyond, and conflicted, with Badger’s report. The Court held that Badger’s only properly disclosed opinion on the permanency of Perez’s injuries is that he could not opine on the topic.
Second, the November 2024 letter is untimely, whether sent on November 22, 2024 or January 14, 2025. The deadline to disclose expert reports was July 8, 2024. Perez’s argument that the November 2024 letter was timely because it was delivered on the deadline to complete fact discovery improperly ignores the July 2024 deadline for expert reports. The Court held that Perez did not provide any reason why this untimely disclosure should be accepted.
Badger May Testify Regarding His Opinion on Perez’s Future Treatment
Lastly, Allstate argued that Badger’s opinions on Perez’s future treatment were too speculative. Allstate pointed to the lack of imaging, the factors that could impact future treatment, and various other reasons this opinion is uncertain. Again, the Court held that these topics are appropriate for cross-examination and/or rebuttal testimony but did not warrant exclusion.
Held
The Court granted in part and denied in part Allstate’s motion to exclude portions of Dr. David Badger’s testimony.
The Court held that Badger can only testify about his opinions on the permanency of Perez’s injuries that were disclosed in the March and June 2024 reports; any opinion outside those bounds is excluded. The remainder of Allstate’s arguments are denied.
Key Takeaways:
While any new opinions would be improper, Badger may connect his diagnoses with the facts and assessments provided in his report.
An expert cannot salvage a deficient report by supplementing it with later deposition testimony.
Case Details:
Case Caption:
Perez V. Allstate Fire And Casualty Insurance Company
Plaintiffs, Angelique L. Lingard and Sudarien D. Smith brought this proposed consumer class action on behalf of themselves and other military servicemembers who are similarly situated against Defendants Holiday Inn Club Vacations, Inc. f/k/a Orange Lake Country Club, Inc. (“HICV”) for alleged violations of the Military Lending Act.
Plaintiffs and the proposed class members purchased timeshare interests from Defendants. Defendants are in the business of selling timeshare plans to consumers throughout the United States. These plans give their owners’ points, which allow them to stay at Holiday Inn Club Vacation Resorts throughout the United States, stay at out-of-network resorts around the world, and buy airline tickets, cruises, rental cars, and other vacation services. Plaintiffs alleged that Defendants’ timeshare contracts violate the MLA. Specifically, Plaintiffs alleged that their and proposed class members’ contracts contain mandatory arbitration, class action waiver, and jury trial waiver provisions in violation of the Act. For these alleged violations, Plaintiffs, on behalf of themselves and the class, sought an order declaring the contracts void from inception and awarding actual damages.
MLA Class: All persons who have entered into Timeshare Purchase Agreements to purchase one or more timeshare interests in the Orange Lake Revocable Trust, in substantially the same form as Exhibit C, after February 24, 2018[,] and who were identified as an active duty servicemember or a dependent within a [Department of Defense (DoD)] Man[p]ower database on the contract date. Default Subclass: All members of the MLA Class whose accounts are or were delinquent as evidenced by [Holiday Inn Club Vacations (HICV)] imposing a “use restriction” on their timeshare interest for nonpayment.
Defendants relied on the report of its expert, Paul Habibi, in its response in opposition to Plaintiffs’ motion for class certification. In rebuttal to Defendants’ expert, Plaintiffs disclosed Dr. Christopher Young and sought to rely upon his report to refute Habibi’s report. The parties sought to exclude each other’s proposed experts.
Economics Expert Witness
Christopher Young, Ph.D., MBA, MAFF, CVA is a professor of business ethics in the Department of Management and Global Business and a research fellow at Rutgers’ Institute for Ethical Leadership. His research focus is in the area of forensic economics, legal and business ethics. He holds a Ph.D. and M.B.A. in global political economy, finance, and accounting from Rutgers University.
Young is a nationally recognized testifying expert and writer in the field of economics, finance and business ethics. He has testified in state and federal courts, with respect to economics, financial policy, and business ethics matters. He has been invited to speak at many government and industry trade organizations. In addition to his academic career, Young has more than twenty-five years of experience in corporate finance, strategy, business ethics, and economic analysis. Outside of the University, he manages various research and consulting projects through his company, Red Maple Economics.
Paul Habibi is the owner of a real estate expert services firm. He is also a senior continuing lecturer at the University of California Los Angeles Schools of Management and Law, where he teaches in the areas of real estate, finance, and accounting. He holds a Master of Business Administration and is a licensed realtor, broker, and certified public accountant. Habibi teaches a course on timeshares for the MBA program at UCLA. He also teaches a course on business skills for lawyers, which covers business valuations and economic damages.
A full Daubert analysis is only required at the class certification stage “when an expert’s report or testimony is critical to class certification.”
The Court held that Young’s report is not critical to the its determination of whether to certify the proposed class because Plaintiffs have not heavily relied upon it for class certification. Indeed, Plaintiffs only refer to Young’s report in one sentence related to the manageability requirement for class certification under Federal Rule of Civil Procedure 23(b)(3)(D).
Plaintiffs sought to rely upon Young’s report to rebut Defendants’ expert’s opinion on the issue of class certification. Defendants have moved to exclude Young’s report on two grounds. Defendants contended that Young’s report was untimely disclosed and lacked reliability under Daubert.
Late Disclosure
The case management and scheduling order expressly stated that Plaintiffs’ deadline for disclosing class action expert reports was March 26, 2024. According to Defendants, Plaintiffs did not identify any expert or serve any expert report on that date. Instead, Defendants asserted that Plaintiffs disclosed Young’s identity and report on May 28, 2024, the day that class discovery closed.
The crux of Young’s opinion is that a common methodology can be used to estimate the offset owed to Holiday Inn from the proposed class members who used their timeshare points.
Although Plaintiffs recited the substantially justified or harmless standard under Rule 37, the Court held that they did not make any argument in support of their position. Rather, Plaintiffs explained that Young’s expert report was timely provided as a rebuttal expert report. The Court has rejected that argument. Plaintiffs have, therefore, failed to meet their burden of showing that their late disclosure was substantially justified or harmless.
Defendants maintained that they were prejudiced because Plaintiffs disclosed Young on the day class discovery closed. Although Defendants deposed Young after the Court granted an extension to the class discovery deadline solely for this to occur, Defendants asserted there is still unfair prejudice because many topics could not be fully explored at the deposition.
Given the prejudice caused by the untimely disclosure, the inability to cure the prejudice at the deposition, and the fact that the trial is only months away, the Court decided that Young’s opinion will be excluded.
Reliability
The Court held that Young’s report is full of limitations because he has not tested the theories he asks the Court to accept. For example, he opines that the market approach methodology “can be used” to estimate the offset due to Holiday Inn.
According to Young, this approach entails evaluating the following market observations to determine the value of the Holiday Inn points: (1) the purchase of points by the issuer, (2) the purchase of points in order to complete a transaction, (3) the sale of points in secondary markets, and (4) the redemption of points for items such as holiday stays, cruises, and car rentals, versus the cost of purchasing them. Young did not analyze these observations to make any calculations because he was not provided with this data, and he speculates as to whether Holiday Inn maintains this data.
In his report, Young offered only methods unapplied to this case that might determine the value of potential class members’ Holiday Inn points. According to the Court, this unapplied and speculative methodology did not support that a reliable class-wide damages methodology existed.
Paul Habibi
Defendants heavily relied on Habibi’s report to oppose Plaintiff’s motion for class certification. Specifically, they referred to the report to challenge Plaintiffs’ assertion that the issues in the proposed class action that are subject to generalized proof predominate over the damages issue subject to individualized proof. Plaintiffs challenged the admissibility of Habibi’s report under Daubert.
Habibi provided three opinions based on his training and experience: (1) Plaintiffs and proposed class members acquired unique and variable timeshare interests in different structures with different use rights, financing terms, and financing disclosures before and during the Proposed Class Period; (2) any negative impact on Plaintiffs’ and proposed class members’ credit scores, ability to obtain financing, and professional careers in the military cannot be reliably assessed using a common approach across the entire class; and (3) the remedies sought by Plaintiffs would require an individualized analysis of each proposed class member’s respective purchase, interest, and use history.
Qualifications
Plaintiffs asserted that Habibi is not qualified to render an opinion in this matter because his curriculum vitae does not refer to expertise in timeshares or economics or valuing non-traditional property interests such as timeshare vacation points.
However, the Court disagreed. Habibi’s extensive educational background and experience qualify him to provide expert testimony in this matter.
Relevance and Helpfulness
Plaintiffs maintained that Habibi’s first opinion is irrelevant and unhelpful because Plaintiffs’ proposed class definition is now limited to servicemembers who purchased one type of timeshare interest, an interest in the Orange Lake Revocable Trust. Initially, in the operative complaint, Plaintiffs’ proposed class definition was not limited to one type of timeshare interest and sought to include “all covered borrowers who financed a timeshare from Holiday Inn.”
Plaintiffs have the burden of showing that rescission is feasible and equitable on a class-wide basis based on the facts of the case.
According to Habibi, Plaintiffs have offered no way to determine, on a class-wide basis, the type of timeshare interest purchased by each proposed class member and the use rights of each proposed class member.
The Court held that Habibi’s first opinion is relevant to the predominance class certification analysis because the parties dispute whether actual damages can be easily calculated for all class members.
Plaintiffs contended that Habibi’s second opinion is also irrelevant and unhelpful because Plaintiffs did not seek damages for the harms described in the opinion.
The Court held that Habibi’s second opinion is relevant to the predominance class certification analysis because Defendants challenge whether determining standing for each proposed class member will predominate over issues subject to generalized proof.
As for Habibi’s third opinion, Plaintiffs maintained that it is irrelevant and unhelpful because Defendants failed to plead set-off as an affirmative defense. The Court found this argument unpersuasive because Habibi opined concerning Plaintiffs’ ability to establish a class-wide damages methodology, which they bore the burden of proving during the class certification stage and at trial.
The Court held that Habibi’s third opinion is relevant to the Court’s predominance class certification analysis since the parties dispute whether actual damages can be easily calculated for all class members.
Reliability
Plaintiffs argued that Habibi should have reviewed the third-party contracts that Holiday Inn had with other companies.
According to Plaintiffs, such a review would help determine a dollar value of points redeemed by class members for services provided by these third parties, which would help calculate the potential setoff for class members.
The Court found that Habibi analyzed the timeshare points usage history data of 300 proposed class members. Based on his analysis, Habibi determined the following: (1) 39% of the proposed class members redeemed all of their timeshare points to stay at another Holiday Inn resort, and (2) for the proposed class members who redeemed their points for external stays or outside services, the average class member used 26.9% of their total timeshare points towards outside services.
The Court held that Habibi’s analysis supported his conclusion that proposed class members have redeemed their points in various ways at different times such that there is no common value ascribed to points universally that could be used as a basis to ascribe a specific dollar value to the points on a class-wide basis.
Further, as mentioned above, Plaintiffs bore the burden of establishing that calculating damages on a class-wide basis predominates over issues subject to individualized proof. Defendants only offered Habibi’s testimony to rebut Plaintiffs’ assertion they have met their burden on this issue. Habibi’s nonscientific opinion about whether there is a common methodology that can be used to determine the value of the points redeemed by the proposed class members is reliable based on his training and experience, and the Court has already found this testimony to be relevant and helpful to the Court’s predominance class certification analysis.
Held
1. The Court denied Plaintiffs’ motion in limine to exclude the report and testimony of Paul Habibi.
2. The Court granted Defendants’ motion to exclude the opinions of Plaintiffs’ proposed expert Christopher Young.
3. The Court denied Plaintiffs’ motion to certify class. On or before March 14, 2025, Plaintiffs shall file a third amended complaint which omits class action allegations.
Key Takeaways:
Young’s report is full of limitations because he has not tested the theories he asked the Court to accept.
So long as the expert is minimally qualified, objections to the level of the expert’s expertise go to credibility and weight, not admissibility.
The fact that some of their contracts with their third-party vendors may provide some mechanism for reimbursement in dollars did not render unreliable Habibi’s opinion that there is no common approach that can be used to value the redeemed points of the proposed class members.
Case Details:
Case Caption:
Lingard Et Al V. Holiday Inn Club Vacations, Inc. Et Al
This lawsuit arises out of Port Arthur’s decision to designate Sassine Avenue as a “no truck route.” Kirk Thomas (“Thomas”) and KT Trucking and Cattle, LLC (“KT Trucking”) (collectively, “Plaintiffs”) engaged in various agricultural and commercial activities on Thomas’ property, including a land farming operation and the management of his personal trucking business. As a result, large commercial vehicles frequently entered and exited the property. Plaintiffs asserted that the only safe way for these vehicles to access the property was via Sassine Avenue. However, Port Arthur’s designation prohibited large commercial vehicles from using the road.
On May 20, 2024, the City of Port Arthur, Texas (“Port Arthur”), and Flozelle Roberts (“Roberts”) (collectively, “Defendants”), designated John McInturff as a testifying expert, expecting him to support their position that Thomas’ use of Sassine Avenue did not constitute routine commerce.
In response, Plaintiffs filed a motion to exclude and/or limit the testimony of Defendants’ expert John McInturff. Thereafter, they submitted an amended motion to exclude and/or limit his testimony, wherein they attached exhibits they had omitted from the original filing.
Transportation Engineering Expert Witness
John McInturff is a civil engineer licensed in Louisiana and Texas. McInturff graduated with a Master of Engineering from Texas A&M University and has spent about 50 years, working specifically in highway, traffic, and transportation engineering. Currently, McInturff is a Principal Engineer at Kittelson, LLC, in College Station, Texas.
Plaintiffs styled their objections to McInturff’s testimony as two distinct claims. First, Plaintiffs asserted that McInturff’s testimony should be excluded because it was so speculative that it constituted the ipse dixit of the expert. Second, Plaintiffs maintained that McInturff’s testimony should be excluded because “the analytical gap between the facts and McInturff’s opinion on whether hauling drilling mud is routine commerce is vast.”
McInturff’s Reliability
Plaintiffs did not challenge McInturff’s reliability under the Daubert factors. Instead, they maintained that his testimony lacked reliability because it was based on insufficient facts and data. Plaintiffs claimed that McInturff not only failed to link his opinion regarding the characterization of Thomas’ use of Sassine Avenue to his knowledge and expertise as a civil engineer but also relied on erroneous and unsupported facts to arrive at his conclusions.
McInturff’s Report
In this case, Plaintiffs challenged McInturff’s conclusion regarding the definition of “routine commerce” under Port Arthur Ordinance 106-41(b)(13). The relevant ordinance stated that Port Arthur cannot prohibit a commercial vehicle from using a street for “the purpose of going directly to or from any residential, commercial or industrial establishment abutting on such street for purposes of routine commerce.”
Regarding what constitutes “routine commerce”, his report stated that:
“Trucks traveling to/from the Thomas property are not using Sassine Avenue for routine commerce such as trips for pickup or deliver of goods or services; i.e., delivery of a refrigerator purchased by a homeowner for delivery to their residence, FedEx/UPS deliveries, etc. Instead, the evidence provided to me suggests that the trucks are engaged in non-routine heavy hauling in connection with the disposal of drilling mud from discrete construction projects. The evidence further shows that these hauling activities included twenty-four hour operations involving repeated trips up and down Sassine Avenue from FM 365, which for purposes of traffic design and engineering, is also not routine commerce to be expected on a residential street like Sassine Avenue”.
McInturff Failed to Link his Opinion Regarding the Characterization of Thomas’ Use of Sassine Avenue to his knowledge and Expertise as a Civil Engineer
McInturff evaluates the use of Sassine Avenue from the perspective of a traffic design and engineering expert. Due to the residential nature of the area, McInturff opined that the routine commerce on Sassine Avenue is commerce that provides residential goods and services to that neighborhood.
From a traffic design perspective, McInturff’s report evaluates what constitutes “routine commerce” based on the type of street at issue, the surrounding area, and the type of commerce that street would be expected to withstand. Additionally, McInturff provides examples, stating that routine commerce on Sassine Avenue could include use of the road by package delivery services, such as FedEx or UPS. Since Sassine Avenue, as a residential road, was not designed to withstand repeated and long-term use by large commercial vehicles like the ones used in Thomas’ commercial endeavors, McInturff concluded that Sassine Avenue’s residential design combined with its unsuitability for use by large commercial vehicles demonstrated that Thomas’ commercial activity did not constitute routine commerce.
The Court held that Plaintiffs’ first contention fell flat because Defendants had set forth sufficient facts and data to bridge the alleged analytical gap between McInturff’s opinion and his expertise.
McInturff based his opinion on erroneous facts and data
Specifically, Plaintiffs asserted that McInturff did not base his opinion on “any information . . . other than his belief that the drilling mud is coming from discrete construction projects that sometimes include twenty-four-hour operations and involve repeated trips.” Plaintiffs then elaborated that there is no evidence that the drilling mud Thomas uses in his land farming operation comes from “discrete construction projects.” Rather, Plaintiffs maintained that the drilling mud results from laying pipelines and drilling for oil, practices that Plaintiffs contend are routine in Southeast Texas.
Plaintiffs contended that the repetitious nature of the trips demonstrated the routine nature of Thomas’ commercial activity.
Regardless of the mud’s origin, the parties agreed that Thomas commonly permits companies to dispose of drilling mud on his property as part of his land farming operation. The parties also agreed that large commercial vehicles are needed to haul drilling mud. In his report, McInturff did not highlight Plaintiffs’ hauling practices to establish that the mud resulted from discrete construction projects. Rather, McInturff discussed Thomas’ hauling practices to emphasize the inconsistency between Thomas’ use of Sassine Avenue and the common commercial activity in that area. In other words, the source of the drilling mud was inconsequential to McInturff’s opinion. The Court held that McInturff’s opinion that Thomas’ proposed use did not constitute “routine commerce” was sufficiently based on his knowledge of traffic engineering and design.
Held
While the Plaintiffs’ original motion to exclude the testimony of Defendants’ expert John McInturff was denied as moot, the Plaintiffs’ amended motion to exclude and/or limit the testimony of McInturff was denied by the Court.
Key Takeaway:
McInturff’s report reflected a thorough and methodical evaluation of the present case from the perspective of a civil engineer. McInturff explained why, based on his knowledge of traffic design and roadway engineering, he determined that Thomas’ proposed use of Sassine Avenue did not constitute routine commerce. McInturff relied on the design of the road, its residential designation, the relevant zoning ordinances, the residential nature of the surrounding area, and his knowledge of the germane traffic patterns and signals. Consequently, McInturff’s challenged testimony and his underlying opinion rely on the facts of the present case, the data provided, and his own expertise.
Please refer to the blog previously published about this case:
The present case involves an insurance coverage dispute between an East Texas church, Plaintiff Christian Heritage School c/o Youth With a Mission, and its insurance company, Central Mutual Insurance Company. Between May 1, 2020, to May 1, 2022, Defendant insured Plaintiff’s property, which consisted of a twenty-one building campus in Tyler, Texas. The dispute arises from alleged storm-related damage with a date of loss on April 5, 2022.
Plaintiff designated Kevin Dandridge of Line Safety as a retained expert to testify as to the proper Occupational Safety and Health Administration (‘OSHA’) protocol and procedures that must be implemented when repairing and/or replacing Plaintiff’s property.
Defendant filed a motion to exclude Dandridge from offering testimony as to (1) the cost for OSHA compliance for repairs to claimed damage on the campus sustained on April 5, 2022; or (2) the cost for OSHA safety protocols and procedures for buildings that he did not inspect.
Safety Expert Witness
Kevin Dandridge completed 510 and 500 OSHA certifications. He is able to certify students in 10 and 30‐hour courses. He has a bachelor of science degree in business management from the University of Phoenix in 2008.
Inclusion of a Line-Item Cost Sheet was Not Prejudicial to Defendant
While the majority of Dandridge’s report mostly relates to OSHA safety concerns and protocols, the last ten pages of his report, however, outlines the line-item costs associated with OSHA compliance.
The Court has to decide whether this is outside the scope of testimony for which he has been designated. Dandridge was designated as an expert to testify as to the proper OSHA safety protocol and procedures that must be implemented when repairing and/or replacing Plaintiff’s property.
Because the designation includes implementations for repair/replacement, it logically follows that Dandridge would have included a line-item cost sheet for adhering to OSHA compliance protocols. Thus, the Court cannot say that the inclusion of such a sheet was inherently prejudicial to Defendant in this case or that Defendant was not fairly apprised of this. Indeed, the sheet was disclosed in Dandridge’s report and Defendant deposed Dandridge and specifically inquired about the generation of the cost sheet.
Dandridge’s Opinion is Not Unreliable Because He Conceded that his Cost Report includes a Sheet that is simply an “Example” and is not Final Pricing
Defendant argued that Dandridge’s opinion is unreliable because he conceded that his cost report includes a sheet that is simply an “example” and is not final pricing. Defendant also pointed out that Dandridge admitted that OSHA compliance may have already been included in some construction estimates, but he did not examine any estimate to determine to what extent those costs were already accounted for.
The fact that Dandridge included a cost sheet in his report as exemplary does not make his opinions on OSHA safety protocols and procedures inherently unreliable. Indeed, the Court held that such a fact is precisely an issue that goes to the weight of his opinions, not the admissibility.
Lastly, Defendant wanted to limit Dandridge’s testimony to the buildings he actually inspected because he only inspected 11 buildings, but the lawsuit included 20 buildings. Plaintiff responded by pointing out that Dandridge has limited his opinions to only the 11 buildings he inspected. Thus, the issue appears to be moot as Plaintiff agrees his testimony is limited to these 11 buildings, and Defendant does not address this response in its reply. Nonetheless, the Court held that the inspection of 11 buildings alone is not a basis to exclude Dandridge’s testimony.
Held
The Court denied the Defendant’s motion to strike the testimony of Kevin Dandridge.
Key Takeaways:
The line-item costs associated with OSHA compliance was disclosed in Dandridge’s report and Defendant deposed Dandridge and specifically inquired about the generation of the cost sheet. Thus, the Court cannot say that the inclusion of such a sheet was inherently prejudicial to Defendant in this case or that Defendant was not fairly apprised of this.
Defendant’s attack on Dandridge using a “not final” cost sheet in his report was misplaced because Dandridge was designated to provide expert testimony on OSHA safety protocols and their associated costs, not to provide final cost estimates.
Please refer to the blog previously published about this case:
