Expert Witness Profiler

Tag: Reliable

  • Opinions of the Geology Expert Witness Regarding Copying of the Patented Technology Excluded

    Opinions of the Geology Expert Witness Regarding Copying of the Patented Technology Excluded

    This case involves an alleged breach of a non-disclosure agreement (the NDA) and patent infringement stemming from the management, construction, and operation of a large lagoon in St. George, Utah (the Lagoon) by Defendants, Desert Color Manager, LLC, Desert Color St. George, LLC, and Pacific Aquascape International, Inc.

    Specifically, Plaintiffs Crystal Lagoons U.S. Corp. and Crystal Lagoons Technologies Inc. (collectively, “Crystal Lagoons”) alleged that, after agreeing to the terms of the NDA, the Desert Color Defendants breached the NDA by disclosing designs, plans, technical information, and other confidential information to Defendant Pacific.

    Plaintiffs then alleged that all Defendants infringed on U.S. Patent No. 8,062,514 (the ‘514 Patent) due to their management and construction of the Lagoon, which allegedly employs Crystal Lagoons’ patented technology. In its most basic sense, the ‘514 Patent is a patented structure to contain a large body of water for recreational use.

     The ‘514 Patent involves, among other things, the design and construction of a structure to contain a water body larger than 15,000 m³, the use of a plastic liner to cover the bottom and walls of the structure, the use of a recycling system that uses pipes with injectors that also allow the application of chemicals, the use of a water inlet line and inlet chambers through which water is extracted to feed the fresh water feeding pipe system of the structure, and the use of a system of skimmers positioned along the border of the structure.

    Plaintiffs retained Christopher D. Lidstone as an expert to opine on the infringement and validity of the ‘514 Patent, and they retained Richard F. Bero as an expert to opine on the issue of damages. Defendant filed motions to exclude the opinions offered by Lidstone and Bero.

    Accounting Expert Witness

    Richard F. Bero is the executive vice president of The BERO Group’s Economic Damages division. He is a certified public accountant (CPA) and a certified valuation analyst (CVA). Bero received his BBA in Accounting and Finance from the University of Wisconsin-Madison.

    Bero provides accounting and financial consulting services and expert testimony pertaining to economic damages and valuation issues in a wide range of litigation matters with an emphasis on commercial litigation and intellectual property matters.

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

    Geology Expert Witness

    Christopher D. Lidstone is principal of CDLidstone, LLC, Fort Collins Colorado. He was formerly president and founder of Lidstone and Associates and managed that firm for 29 years until July, 2015. He sold Lidstone and Associates to Wenck Associates and served as a Principal and Regional Manager for that firm until January of 2021. In his current position as owner of CDLidstone LLC he continues his water resources engineering and geological career throughout the United States and internationally. He serves as a consultant to not only the mining but environmental industry as well as several municipalities, state and federal government. He has completed geological exploration and due diligence services in the US, Canada and Mexico and has completed work in Indonesia, Australia and Papua New Guinea.

    His work expertise addresses both ground water and surface water studies including water supply, water development, erosion and sedimentation, flood control, geomorphic stability, geochemistry and water quality studies.

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

    Discussion by the Court

    Christopher D. Lidstone’s Expert Opinions Regarding the Absence of Non-Infringing Alternatives, Long-Felt Need, and Copying Are Inadmissible

    Lidstone is a water geologist, not a recreational water structure designer

    First, Defendants argued Lidstone is a water geologist, not a recreational water structure designer. As such, he cannot be considered a person of “ordinary skill in the art,” which is necessary to opine on the infringement and validity of the ‘514 Patent.

    Plaintiffs responded by pointing to, among other things, Lidstone’s 42 years of experience in the field of hydrology; his degrees in Geological Sciences and Geomorphology; his work experience with the design and construction of water supply, water treatment, and storage projects for public water supplies; his experience previously serving as a technical expert in other patent cases related to groundwater storage; his experience teaching courses on the building blocks for pools, like the use of liners, flocculation, disbursement, cation exchange, water, and concrete; and more.

    The Court agreed with Plaintiffs that Lidstone has specific, relevant experience related to the ‘514 Patent to qualify him as a person of ordinary skill in the art with respect to water structure design generally, and there is no requirement that Lidstone have specific design experience with recreational water structures to opine on the validity and potential infringement of the Patent. After all, the potential  for recreational use of these structures is only a small part of the invention.

    Lidstone lacks a factual basis for his opinion that the ‘514 Patent is a “foundational” patent

    Second, Defendants argued that Lidstone lacked a factual basis for his opinion that the ‘514 Patent is a “foundational” patent.

    Defendants added that Lidstone never defined what the term “foundational” means, and they emphasized the potential lack of relevance of Lidstone’s testimony regarding the nature of the ‘514 Patent.

    However, the Court held that Lidstone defined “foundational” as being the original, or foundational, patent filed by an applicant directed to a particular subject matter. Indeed, Lidstone identified the ‘514 Patent family as the first family of patents filed in the United States by Crystal Lagoons related to this technology, and he acknowledged the fact that other patents issued from the same initial application.

    Lidstone relied on no data or facts whatsoever to support his opinion that there are no non-infringing alternatives to the technology of the ‘514 Patent

    To prove the absence of acceptable, non-infringing alternatives, the patentee may prove either that the potential alternative was not acceptable to potential customers or was not available at the time of infringement.

    Plaintiffs pointed to Lidstone’s opinions on the “foundational” nature of the ‘514 Patent as the basis for this opinion.

    It was unclear to the Court how this opinion independently constituted a sufficiently reliable basis for an “absence of non-infringing alternatives” opinion. The most relevant expert testimony the Court could identify potentially relating to this issue is when Lidstone testified how “the technology covered by the ‘514 Patent constituted a significant departure from the technologies for building and maintaining large bodies of water for recreational purposes available at the time” as it allowed for “the design, construction, and operation of sustainable, clear lagoons of virtually unlimited sizes.”

    Critically missing from Lidstone’s report and testimony, however, are any facts or analysis suggesting how at the time of Defendants’ alleged infringement there was an absence of acceptable, non-infringing alternatives.

     At best, Lidstone provides an opinion on the novelty of the invention but cabins it to the exact moment Crystal Lagoons first patented its lagoon technology in the United States (in 2007)—he did not opine on the existence of non-infringing alternatives when Defendants allegedly infringed on the Patent by designing and building the accused Lagoon (between 2019 and 2020).This did not reliably demonstrate how in 2019, at the time of the alleged infringement, there was an absence of acceptable, non-infringing alternatives. Twelve or more years of technological advancements may have altered the lagoon technology landscape significantly, and it is a crucial consideration for any expert opinion regarding whether non-infringing alternatives existed at the time of infringement. The Court held that the expert testimony is unreliable and inadmissible.

    Defendants argued that Lidstone has no factual basis for his opinion that the ‘514 Patent fulfilled a “long-felt need”

    Plaintiffs contended that Lidstone’s factual basis for this opinion permissibly rests on (1) his opinion that the ‘514 Patent is a foundational patent, and (2) the increase in demands for lagoons after the ‘514 Patent was issued.

    Lidstone’s rebuttal expert report consisted of only two, conclusory sentences that the ‘514 Patent “fulfilled a long felt need to develop and treat large bodies of water such as lakes and ponds.”

    He later testified he based his long-felt-need conclusion on the nature of the patent, the history that predated the patent, and what happened after the patent came into play.

    Specifically, Lidstone indicated how, based on his understanding of the relevant pool-related technology, “prior to this patent, there were no large lagoons that had been developed, and subsequent to the patent, lagoons were built,” but he admittedly could not identify any statements or other evidence prior to 2006 indicating a long-felt need.

    The Court is unpersuaded that merely pointing to some level of eventual demand for a patented product renders reliable expert testimony regarding long-felt but unresolved need. If this were the case, all patented products that happen to generate sales over the life of the patent would essentially enjoy a presumption of satisfying a long-felt need. While a rapid increase in demand for the patented product may be suggestive of long-felt need, Lidstone did not analyze the rate of increase of demand for lagoons. He only analyzed and described Crystal Lagoons’ current success in the lagoon industry.

    Defendants argued that Lidstone lacked sufficient facts and data supporting his opinion that the ‘514 Patent has been commercially successful

    Defendants admitted Lidstone takes about a page of his report discussing various indicators of Plaintiffs’ commercial success, but they insisted Lidstone never analyzed data to reach his opinion that the commercial success resulted from the ‘514 Patent.

    The Court held that Lidstone’s opinions on this subject are reliable and relevant as they adequately demonstrate and describe how the ‘514 Patent is advantageous to Crystal Lagoons’ commercial success. Lidstone described various indicators of Crystal Lagoons’ ongoing commercial success in his rebuttal report, and he linked the success to the ‘514 Patent by relying on his previous opinion that the technology of the ‘514 Patent provides the foundation for Crystal Lagoons’ technology to create large bodies of water for swimming and recreational use.

    As discussed above, the Court held that his opinion on this subject is also reliable and admissible. Moreover, a correct understanding of Crystal Lagoons’ business model, which Lidstone understood, also supported his commercial success opinion. Crystal Lagoons generates revenue by issuing a collective license of all its intellectual property—which necessarily includes the’514 Patent—to lagoon builders for the design, construction, and operation of its lagoon technology. Notably, Crystal Lagoons did not design, build, and operate artificial water lagoons, nor did it license its Patents and other intellectual property on a patent-by-patent basis; instead, it licenses all of its technology only when it has ongoing involvement in a project such as providing (and getting paid for) its ongoing systems fees services.

    Defendants argued that Lidstone failed to link any “industry praise” to the actual inventions of the ‘514 Patent

    Lidstone’s explained how “based on the invention of the technology of the ‘514 Patent,” Fischmann (the inventor of the ‘514 Patent), has been honored many times with prestigious international awards, including Entrepreneur of the Year, Innovator of the Year, Businessman of the Year, the Innovation Stevie Award, the Real Innovator Award, the Green Apple Award, and two Guinness World Record Awards related to lagoons built and operated using Crystal Lagoons’ technology.

    He also explained how hundreds of lagoon projects around the world currently use Crystal Lagoons’ technology.

    As explained above, these awards presented to Fischmann for his lagoon-related inventions necessarily relate, at least in part, to the ‘514 Patent because this Patent is included in each sale of Crystal Lagoons’ collective license, and the technology likely forms a part of each resulting lagoon. Lidstone’s analysis and opinions on this subject are reliable and admissible.

    Defendants argued that Lidstone failed to provide any factual basis to support his conclusion that Defendants “copied” the ‘514 Patent

    Plaintiffs did not direct the Court to any reliable support for Lidstone’s opinions regarding copying of ‘514 Patent technology; they only argued that Lidstone’s opinions regarding Defendants’ infringement were sufficient to support his copying opinion. But precedent forecloses this argument. A review of Lidstone’s expert reports and deposition testimony reveals he similarly conflated the terms “copying” and “infringement.” Tellingly, the only explicit support for his copying opinion is his analysis of another lagoon’s infringement of the ‘514 Patent in a related case.

    And when pressed about the basis for his copying opinion, Lidstone testified how “[he] look[ed] at similarities in designs and so forth,” but he admitted, “[w]hat Pacific Aquascape did to get there, I don’t know.” A reliable copying opinion would have focused on what Defendants “did to get there,” i.e., their efforts to replicate a specific product, not on the mere similarities between the accused device and the patent claims. The Court therefore concluded that Lidstone’s opinions and testimony on this subject are unreliable and inadmissible.

    Richard F. Bero’s Expert Testimony Regarding Infringement Damages is Unreliable and Inadmissible

    Defendants dedicated a few sentences of their Motion to argue Bero’s opinions regarding commercial success, breach of contract damages, and unjust enrichment damages are unreliable. But the Court found that this testimony was sufficiently supported and reliable to be admissible.

    Patent infringement damages are customarily computed by calculating lost profits or a reasonable royalty, and Defendants challenged the admissibility of Bero’s testimony with respect to each calculation.

    The Federal Circuit is clear that “apportionment is an important component of damages law generally, and . . . it is necessary in both reasonable royalty and lost profits analysis.”

    Under the entire market value rule—which has been described as a “narrow exception” to the apportionment requirement and potentially applies regardless of whether the patentee relies on a reasonable royalty or lost profits calculation—the patentee may rely on the entire market value of the accused product if the patentee demonstrates that “the feature patented constitutes the basis for customer demand.”

    Here, Plaintiffs do not sell products. Instead, as explained above, Crystal Lagoons primarily generates revenue by issuing a collective license of all its intellectual property to lagoon developers, which includes the ‘514 Patent, for the design, construction, and operation of its lagoon technology.

    The Court held that Bero “never conducted any market studies or consumer surveys to ascertain whether the demand for [the collective license] is driven by the [‘514 Patent]” in dispute. Ultimately missing from Bero’s opinions are any sufficiently reliable facts or data suggesting the ‘514 Patent is what motivates consumers to purchase the Crystal Lagoons’ portfolio of property.

    Movant’s Ignorance of the Law is Insufficient to Demonstrate Excusable Neglect 

    Plaintiffs made an oral motion seeking to allow Bero additional time to submit a supplemental expert opinion, which would address some of the deficiencies with his expert report. Federal courts are clear that a movant’s ignorance of the law is insufficient to demonstrate excusable neglect; accordingly, Plaintiffs have not satisfied their burden under Rules 6(b)(1)(B) and 16(b)(4) to modify the already expired expert discovery deadline.

    Held

    The Court granted in part both motions to exclude Plaintiffs’ experts Christopher D. Lidstone and Richard F. Bero.

    Key Takeaways:

    • Even though Lidstone may lack experience with designing water structures primarily used for recreation, Lidstone’s experience with designing other water structures qualifies him to opine on key issues relevant to the structure-related claims of the ‘514 Patent.
    • Evidence of long-felt need is closely related to the failure of others, though they are distinct considerations. This evidence is particularly probative of obviousness when it demonstrates both that a demand existed for the patented invention, and that others tried but failed to satisfy that demand.
    • When the patented invention is a component of a commercially successful machine or process, the patentee need only “come forward with evidence sufficient to constitute a prima facie case of the requisite nexus,” and show “a legally sufficient relationship between that which is patented and that which is sold.” In this case, the ‘514 Patent necessarily forms a part of each sale of the collective license, and likely plays a part in the development of each resulting lagoon.
    • Plaintiffs and Bero rely solely on the “foundational” and “core” nature of the ‘514 Patent, the fact that the ‘514 Patent is included in every purchase of Crystal Lagoons’ collective licenses, and the lack of viable lagoons in the marketplace to make an impermissible inference that the Patent drives consumer demand for all of Crystal Lagoons’ intellectual property. None of these are adequate bases to justify Bero’s reliance on the entire market value rule. 

    Case Details:

    Case Caption: Crystal Lagoons Us Corp Et Al V. Desert Color Manager Et Al
    Docket Number: 2:20cv851
    Court: United States District Court, Utah
    Order Date: February 4, 2025
  • Structural Engineering Expert Witness’ Testimony on the Age and Cause of the Damage to the Roof Admitted 

    Structural Engineering Expert Witness’ Testimony on the Age and Cause of the Damage to the Roof Admitted 

    This is a removed action by Plaintiff Wings Platinum LLC , an insured, against its insurer, Defendant Westchester Surplus Lines Insurance Company, arising from the denial of Wings’ claim for coverage following a wind and hail storm. Wings asserted claims for breach of contract; unfair settlement practices, and breach of the duty of good faith and fair dealing.

    Wings alleged that, on April 9, 2021, a severe wind and hail storm caused significant damage to the Property’s roof and exterior. Plaintiff submitted a claim under the Policy for wind and hail damage to the Property that it maintained was caused by the storm, seeking the cost to repair the roof. Westchester retained Robert J. Herrera, an engineer at Stephens Engineering, to investigate Wings’ claim. Herrera first inspected the property on September 9, 2021, and he authored three reports. However, Wings filed a motion to strike Herrera’s testimony and opinions. 

    After Westchester denied Wings’ claim on or about April 21, 2022, Wings sued Westchester in State Court, and Westchester removed the lawsuit to this Court.

    Structural Engineering Expert Witness

    Robert Herrera was hired by Stephens Engineering Consultants, Inc. in 2020
    where he uses his years of design engineering experience in the field of forensic investigations. Herrera has performed forensic investigations for a wide variety of residential and commercial structures to determine cause and/or extent of stormrelated damage to roofing and exterior claddings of buildings, water intrusion, structural damage and collapse, differential foundation movement, vehicle impacts, and construction defects.

    Herrera is currently a senior forensic engineer, the team leader for Texas, and an integral part of the training of new forensic engineers for Stephens.

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

    Discussion by the Court

    Herrera’s first report, dated September 30, 2021 (the “First Report”), concluded that identified fractures in the thermoplastic membrane of the roof were not caused by wind or hail. The second report, a supplement produced after a follow-up investigation of the building on February 28, 2022 and dated March 22, 2022 (the “Second Report”), identified fractures in the membrane consistent with impact, but it maintained that those fractures were not caused by a weather event in 2021 and were instead caused by a storm in April 2017. The third report, a second supplement dated June 23, 2022 (the “Third Report”), responded to additional materials that Wings had provided and maintained the conclusions reached in the Second Report.

    Plaintiff’s Argument in Support of the Motion

    Wings sought to exclude Herrera’s testimony on the basis that he is not qualified to opine as an expert on the age of the damage to the roof and that his opinions regarding the age of the hail damage on the roof are not reliable because they lack any reasonable basis and are not the result of sound scientific principles and methods.

    Wings posited that Herrera had insufficient training to be qualified as an expert for purposes of determining the time when the roof was damaged by hail. 

    It contended that Herrera’s prior engineering experience is not relevant to the issue on which he opines—the age of the hail strike damage—and that Herrera’s mere one year and one month of experience at the time of his First Report is insufficient to qualify him as an expert.

    Wings also contended that Herrera’s opinions regarding the age of the hail strikes are not reliable because they are entirely subjective and lack “any sort of basis, rubric, metric, or standard” by which to judge them, and because Herrera could not explain how his determination of the age of the damage could be duplicated or tested. 

    Analysis

    Qualification

    Neither Westchester nor Herrera articulates how Herrera’s specific experience designing commercial and residential structures as a project engineer qualifies him to opine on the age of the hail damage. The Court held that Herrera’s training and experience at Stephens, however, qualify him to offer these opinions as an expert.

    In his affidavit, Herrera avers that he received on-the-job training when he began working at Stephens in 2020 that was “specific to identifying and assessing wind- and hail-related damage to roofs, including the type of roof at issue in this lawsuit.” 

    He shadowed senior engineers for 3 to 4 months before beginning to inspect buildings independently, and, at the time he inspected the roof at 3950 Platinum Way, he had inspected approximately 200 buildings for storm damage.

    At the time of his affidavit, he had inspected approximately 750 properties for storm damage. The Court finds this experience and training sufficient to qualify Herrera to offer his expert opinion on the age and cause of the damage to the roof at 3950 Platinum Way under Rule 702.

    Reliability

    Herrera testified in his deposition that he was able to examine fractures in the roof and determine, “to a reasonable degree of engineering certainty,” that the fractures were more than one year old and thus were not due to a recent hail event. This observation and judgment, in connection with his review of weather research and Roof Technical Services, Inc.’s (“RTS’s”) report from its analysis of the roof samples, formed the basis for Herrera’s opinion.

    The Second Report explained that the fractures on the roof attributed to hail damage were consistent with hailfall on or about April 25, 2017 because the damage was consistent with hail larger than that reported at the property in the April 2021 storm. The Court was satisfied with Westchester’s showing of reliability in this instance. 

    In other words, Wings’ deep reservations about Herrera’s opinions concerned the weight of his testimony, not its admissibility, and will be better addressed through vigorous cross-examination and the presentation of contrary evidence. 

    Held

    The Court denied Plaintiff’s motion to strike the testimony and opinions of Defendant’s expert Robert J. Herrera.

    Key Takeaway:

    Herrera received on-the-job training when he began working at Stephens in 2020 that was “specific to identifying and assessing wind- and hail-related damage to roofs, including the type of roof at issue in this lawsuit.”

    He reviewed weather research and Roof Technical Services, Inc.’s (“RTS’s”) report from its analysis of the roof samples to conclude that the damage to the roof was not caused by a recent hail event.

    Case Details:

    Case Caption: Wings Platinum Llc V. Westchester Surplus Lines Insurance Company
    Docket Number: 3:23cv2145
    Court: United States District Court, Texas Northern
    Order Date: February 4, 2025
  • Law And Legal Expert Witness Cannot Opine on the Standard of Care of Non-Lawyers

    Law And Legal Expert Witness Cannot Opine on the Standard of Care of Non-Lawyers

    Joy Banner brought this suit against Defendants Michael Wright, St. John the Baptist Parish, and Jaclyn Hotard (collectively “Defendants”) alleging violations of her First Amendment right to freedom of speech during a St. John the Baptist Parish council meeting.

    Richard Stanley, an attorney-expert, has been hired by Defendants to opine about “whether a person could reasonably believe that a statute, which in one District Court case was held unconstitutional ‘as applied,’ was still valid in other applications.” Banner alleged that she was only allowed to speak for five seconds before she was interrupted by Defendant Parish President Jaclyn Hotard and then by Defendant Chairman Michael Wright. Plaintiff filed a motion to exclude Stanley’s testimony.

    Wright recited Louisiana Revised Statute § 42:1141.4(L)(1) which provided that:

    “It shall be a misdemeanor, punishable by a fine of not more than two thousand dollars or imprisonment for not more than one year, or both, for any member of the Board of Ethics, its executive secretary, other employee, or any other person, other than the person who is subject to the investigation or complaint, to make public the testimony taken at a private investigation or private hearing of the Board of Ethics or to make any public statement or give out any information concerning a private investigation or private hearing of the Board of Ethics without the written request of the public servant or other person investigated.”

    Banner alleged that the Defendants threatened her with criminal sanctions based on the content of her speech. According to Banner, the law they threatened her with had been long ruled unconstitutional – both facially and as applied.

    Law And Legal Expert Witness

    Richard C. Stanley represents clients throughout Louisiana and the surrounding region in complex commercial litigation and in the representation of lawyers and law firms in connection with issues of ethics and professional liability.

    He handles cases in both state and federal courts at the trial and appellate levels. His clients include two of Louisiana’s largest electric utilities (Entergy and Cleco), as well as numerous out-of-state clients with litigation in Louisiana. He has been recognized as Lawyer of the Year by Best Lawyers in America in multiple categories, including Bet-The-Company Litigation (2019), Real Estate Litigation (2020), Legal Malpractice Law – Defense (2014, 2016, 2018) and Antitrust (2012, 2015). 

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

    Discussion by the Court

    Plaintiff argued that Stanley’s expert testimony should be excluded from trial because (1) Stanley is offering a legal opinion which is in the province of the judge; (2) Stanley’s opinions are irrelevant; and (3) Stanley conceded that he could only opine as to what a reasonable lawyer would do, not a non-lawyer. In opposition, Defendants argued that Stanley did not intend to offer legal opinions, rather he plans to testify as to the reasonable standard of care of an attorney.

    A. Plaintiff’s Argument in Support of the Motion

    Plaintiff contended that Stanley is a partner at the law firm Stanley Reuter Alford Owen Munson & Paul, LLC, a firm that has represented Saint John the Baptist Parish.

    First, Plaintiff argued that Stanley’s testimony should be excluded because his opinion is a legal opinion, and explaining the law to the jury is the province of the judge, not an expert witness.

    Plaintiff contended that Stanley’s methodology includes legal analysis, which an expert witness is prohibited from offering at trial.

    Next, Plaintiff argued that Stanley’s testimony should be excluded because it was irrelevant. Plaintiff stated that the statute Stanley has been asked to interpret was found unconstitutional “as applied” and on its face. Plaintiff contended that Stanley’s opinions are about the reasonableness of a “person who is either advised by a lawyer or who has the equivalent information as if they were advised by a lawyer.”

    Lastly, Plaintiff contended that Stanley’s testimony should be excluded because he testified that he could only opine as to what a reasonable lawyer would do, not a reasonable non-lawyer.

    B. Defendants’ Argument in Opposition to the Motion

    Defendants contended that Stanley’s testimony is not a legal opinion, rather Stanley intended to testify regarding the standard of care of a reasonable lawyer because a reasonable lay person, even without the advice of counsel, would have no reason to conclude that Louisiana Revised Statute § 42:1141.4(L)(1) is unconstitutional in all applications.

    While Plaintiff argued that Stanley’s testimony should be excluded because the standard of care on which he bases his opinion is that of a lawyer, Defendant contended that the standard of care of an lawyer is higher than the standard of care of lay person.

    Defendants conceded that neither Wright nor Hotard are lawyers, and Stanley’s expert opinion is that their actions at the Council meeting did not fall below the reasonable standard of care under the circumstances. Defendants asserted that Plaintiff has not attempted to challenge the constitutionality of the underlying statute.

    C. Plaintiff’s Argument in Further Support of the Motion

    Plaintiff asserted that neither Hotard nor Wright are attorneys, and this Court has excluded an advice-of-counsel defense. Moreover, this case does not involve negligence or malpractice wherein “standard of care” is an element of the claim. Plaintiff averred that Defendants have not offered any authority that requires a showing of a “standard of care” in a First Amendment case.

    Analysis

    This Court reviewed Stanley’s expert report and found that it clearly invaded the province of the Court to instruct the jury on any applicable law. In his report, Stanley opined that it was reasonable for a lawyer to believe a statute, which in one District Court case was held unconstitutional ‘as applied,’ was still valid in other applications. In addressing Plaintiff’s First Amendment claim, the jury must determine whether the restriction on Plaintiff’s speech was “reasonable in light of the purpose served by the forum.” Consequently, Stanley’s opinions touched on various legal issues in this matter to be determined by the factfinder. This Court cannot allow Stanley’s opinion as it runs afoul of the Federal Rules of Evidence.

    Further, the Court found that Stanley’s testimony was irrelevant. Stanley testified that he can only opine on the standard of care of lawyers, not non-lawyers. Defendants in this matter are not lawyers. Stanley admitted he cannot testify as to the standard of care of a non-lawyer. Even without Stanley’s opinion, the jury may hear testimony from fact witnesses and consider said testimony alongside the jury instructions regarding the applicable law and make their own determination of whether Defendants’ assumptions and actions were reasonable.

    Held

    The Court granted Plaintiff’s motion to exclude Defendants’ attorney-expert Richard Stanley under Daubert.

    Key Takeaways:

    • Stanley’s opinions touched on various legal issues in this matter to be determined by the factfinder because the jury must determine whether the restriction on Plaintiff’s speech was “reasonable in light of the purpose served by the forum.”
    • Stanley testified that he can only opine on the standard of care of lawyers, not non-lawyers. Defendants in this matter are not lawyers. Stanley admitted he cannot testify as to the standard of care of a non-lawyer.

    In conclusion, being a lawyer does not disqualify one as an expert witness. Lawyers may testify as to legal matters when those matters involve questions of fact. However, there is only one legal answer for every cognizable dispute. There being only one applicable legal rule for each dispute or issue, it requires only one spokesman of the law, who of course is the judge.

    Case Details:

    Case Caption: Banner V. Wright Et Al
    Docket Number: 2:23cv7296
    Court: United States District Court, Louisiana Eastern
    Order Date: January 15, 2025
  • Safety Expert Witness’ Lack of Consideration of Certain Documents did not Render his Opinion Unreliable

    Safety Expert Witness’ Lack of Consideration of Certain Documents did not Render his Opinion Unreliable

    This lawsuit arises out of the designation of Sassine Avenue as a “no truck route.” Plaintiff, Kirk Thomas, engages in various agricultural and commercial pursuits, many of which involve the use of his property. Consequently, commercial vehicles commonly travel to and from Thomas’s property.

    Plaintiffs Thomas and KT Trucking and Cattle, LLC,  asserted that the only safe way for a commercial vehicle to access Thomas’s property is via Sassine Avenue in Port Arthur, Texas. Port Arthur, however, has designated Sassine Avenue as a “no truck route,” which prohibits large commercial vehicles from using Sassine Avenue to enter Thomas’s property.

    On March 15, 2024, Plaintiffs designated Raegan Droddy as a testifying expert. Plaintiffs anticipated that Droddy’s testimony would demonstrate that Sassine Avenue provides the only means for commercial vehicles to access Thomas’s property safely. 

    Defendants maintained that Droddy should be struck as an expert because he is not qualified to opine on the matters contained in his report. Alternatively, Defendants asserted that Droddy’s report was unreliable because it was based on insufficient facts and data. Therefore, Defendants asked this Court to strike Droddy as an expert.

    Safety Expert Witness

    Raegan Droddy is a retired Texas State Trooper with approximately 24 years of experience working for the Texas Department of Public Safety (“DPS”).

    For 13 of his 24 years of experience, Droddy worked in the Commercial Vehicle Enforcement Service. Droddy also served as a crash scene investigator and taught multiple classes on Texas traffic laws and basic crash Investigations. Droddy currently owns and operates Droddy DOT Safety Consulting, Inc., where he conducts safety assessments and audits, provides safety presentations for trucking companies, and reviews company policies, procedures, shipping papers, driver qualifications, and crash paperwork.

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

    Discussion by the Court

    Droddy’s Qualifications

    Defendants contended that Droddy was not qualified to testify as an expert on the subject matter contained in his report because he did not have the requisite experience, education, or knowledge. Defendants asserted that Droddy’s report consisted of “numerous engineering opinions regarding the safety and availability of access to Thomas’s property.” Droddy did not have an engineering degree. Consequently, Defendants claimed that Droddy is not qualified to testify on the engineering opinions contained in his expert report.

    Plaintiffs successfully neutralized Defendants’ concerns regarding Droddy’s qualifications in one broad-sweeping stroke. Droddy’s report did not contain opinions that require him to have an engineering degree. Droddy bases his report on his knowledge and experience that he acquired during 24 years of service with the DPS. Droddy’s report focused on basic measurements, observations, and data. Droddy’s report then analyzed those facts under the purview of his specialized knowledge of commercial vehicles, traffic regulations, and highway safety hazards. Droddy did not attempt to opine on the structural integrity of the road, nor does he attempt to apply complex mathematical formulas beyond his training and expertise. At its core, Droddy’s report opined on matters of traffic safety, not matters of engineering. Moreover, an engineering degree is not required to evaluate the safety of certain vehicular maneuvers.

    Furthermore, the Court held that Plaintiffs have met their burden of demonstrating, by a preponderance of the evidence, that Droddy is qualified to testify on matters of traffic safety and commercial vehicles. Droddy has extensive education regarding commercial vehicles, including his attendance at the Commercial Vehicle Crash Inspection School as recently as 2023. Consequently, in light of Droddy’s extensive experience with commercial vehicles, commercial crash scene investigations, and highway law enforcement, the Court concluded that Droddy is qualified to testify on matters of traffic safety.

    Droddy’s Reliability

    Droddy discussed safety issues associated with commercial vehicles utilizing different roads to access Thomas’s property. As a result, the Court must evaluate whether Droddy’s report is predicated on sufficient facts and data. In his report, Droddy relied on his personal observations of Spur 93 and Sassine Avenue, the measurement of a KT Trucking vehicle, the width of the proposed access point on Spur 93, the relevant speed limits and traffic signals, photographs of Thomas’s property, online maps, and the Texas Department of Transportation and Safety’s most recent average daily traffic count for Spur 93. A review of Droddy’s report demonstrated that he methodically gathered facts to form the basis of his opinion. Additionally, Droddy’s report outlines the interplay between various facts and states the impact of those interactions on the safety of certain vehicular maneuvers. Accordingly, the analytical gap between the facts Droddy gathered and the conclusions he reached is narrow. Therefore, Plaintiffs have established that Droddy’s report is substantiated by sufficient facts and data.

    Defendants, however, contended that Droddy’s report was unreliable because Droddy admitted that he was unsure whether he reviewed a map of Port Arthur’s “no truck” routes and that he did not review its zoning ordinances. Defendants also emphasize that Droddy failed to interview anyone besides Thomas when gathering facts and data.

    The Court held that Droddy’s lack of consideration of certain documents and sources did not render his opinion unreliable.

    Held

    The Court denied the Defendants’ motion to strike Plaintiffs’ expert Raegan Droddy.

    Key Takeaway:

    • Droddy is qualified to testify on matters of traffic safety considering his  extensive experience with commercial vehicles, commercial crash scene investigations, and highway law enforcement.
    • Droddy’s report outlines the interplay between various facts and states the impact of those interactions on the safety of certain vehicular maneuvers. Accordingly, the analytical gap between the facts Droddy gathered and the conclusions he reached is narrow. The Court held that Droddy’s lack of consideration of certain documents and sources did not render his opinion unreliable.

     

    Case Details:

    Case Caption: Thomas V. City Of Port Arthur, Texas
    Docket Number: 1:23cv282
    Court: United States District Court for the Eastern District of Texas
    Order Date: January 31, 2025
  • Law And Legal Expert Witness Improperly Speculates about the Defendant’s Motivation

    Law And Legal Expert Witness Improperly Speculates about the Defendant’s Motivation

    This is an insurance bad faith case stemming from Westfield’s handling of a first-party property insurance claim following a fire.

    Plaintiffs JME Investments, LLC (“JME”) and Hiway Bar, LLC (“Hiway Bar”) (together, “Plaintiffs”) filed claims after a kitchen fire damaged their property on July 12, 2020. The fire burned a building owned by JME. Constructed in the 1890s, the building had been leased to Hiway Bar since 2018 for $4,000 per month. Hiway Bar operated a restaurant and bar on the ground floor and leased the three residential apartments on the second floor, particularly to tourists and hunters during the hunting season.

    Defendant Westfield Insurance Company insured the building for $625,500. However, JME later admitted that it “woefully” underinsured the property. Still, the parties agreed that Westfield has paid Plaintiffs over $900,000 on their claims arising from the fire loss.

    Plaintiffs retained Damian J. Arguello to evaluate and opine as to whether Westfield’s handling of Plaintiffs’ insurance claims was consistent with industry standards. Arguello submitted two expert reports: an initial affirmative report on March 10, 2023, followed by a supplemental report on May 15, 2024, which addressed specific issues raised in Westfield’s counterclaims.

    Subsequently, Westfield filed a motion to exclude the opinions and testimony of Damian J. Arguello.

    Law And Legal Expert Witness

    Damian J. Arguello is an insurance coverage attorney, expert witness, and former adjunct law professor whose legal practice focuses on representing and counseling commercial policyholders, business and trial attorneys, and insurance agents and brokers regarding insurance issues.

    In his consulting and expert witness practice, Arguello also draws from his pre-law school experience as a claims adjuster for several insurance companies and as a claims manager and errors & omissions risk manager for a major insurance brokerage to consult and deliver testimony on insurance company claims handling and insurance agent/broker professional liability.

    Arguello’s insurance industry experience also includes reengineering an insurance company’s claims best practices in conjunction with consultants with McKinsey & Company.

    Want to know more about the challenges Damian J. Arguello has faced? Get the full details with our Challenge Study report.   

    Discussion by the Court

    Defendant’s Arguments

    Arguello submitted an initial report in connection with the Plaintiff’s common law bad faith claim. Westfield contended that this report was littered with factual inaccuracies and improper legal conclusions considering various opinions in the report were highly unreliable, prejudicial, and unhelpful to the jury. Moreover, Westfield challenged Arguello’s supplemental report in which, according to Westfield, Arguello improperly speculated about Westfield’s motivation for asserting its counterclaims, including that Westfield filed the counterclaims to “distract the factfinder’s attention from Westfield’s deficient claim handling,” and that Westfield sought to “perpetuate this litigation by raising its counterclaims extremely late in the litigation.”

    As required by the Court’s Uniform Practice Standards, Westfield recited the ten opinions in Arguello’s affirmative report that it considered improper due in part to the “litany of factual errors” predicating these opinions. After analyzing the ten opinions, the Court declined to exclude them at that time. The Court had already outlined the numerous factual disputes in this matter. Westfield was free to challenge any perceived factual errors through cross-examination of the expert. The Court emphasized that its role as a gatekeeper under Daubert “is not intended to serve as a replacement for the adversary system.”

    Helpfulness to the Trier of Fact

    Westfield challenged Arguello’s claims-handling opinion, in which he stated, “in my opinion, Westfield’s handling of JME’s and Hiway’s claims failed to meet applicable standards of care for a reasonable insurer under the facts and circumstances of this loss.” The Court permitted Arguello to testify, consistent with his expertise in the insurance industry, about the relevant insurance industry standards concerning an insurer’s duty to investigate claims, including whether Westfield’s conduct was consistent with that of a reasonable insurer. However, Arguello may not go any further by testifying that Westfield’s handling of Plaintiffs’ claim was unreasonable. 

    The Court emphasized that expert testimony must assist the jury, as required by Federal Rule of Evidence 702(a). To ensure testimony remains helpful, “an expert may not state legal conclusions drawn by applying the law to the facts, but an expert may refer to the law in expressing his or her opinion.” The Court acknowledged that “the line between a permissible opinion on an ultimate issue and an impermissible legal conclusion is not always easy to discern.” In this instance, the Court found that Arguello’s challenged opinion goes right up to that line but does not cross the thin line.

    Legal Conclusions

    Westfield challenged seven opinions from Arguello’s supplemental report, because they apparently constituted improper legal conclusions. For example, Arguello stated, “[i]n my opinion, the available evidence doesn’t support Westfield’s counterclaims.” In another instance, he opined, “in my opinion, Plaintiffs provided ample cooperation with Westfield’s investigation”.

    It was noted that Plaintiffs did not address any of these seven opinions with specificity in their response. Instead, Plaintiffs asserted high-level arguments that Arguello’s opinions were “properly grounded in the standard of care for insurance claims handlers and were relevant to the determination of materiality.” Plaintiffs added that this post-litigation conduct was relevant to Westfield’s on-going duty of good faith and fair dealing. 

    While the Court acknowledged that an insurer’s “duty of good faith and fair dealing continues unabated during the life of the insurer-insured relationship, including through a lawsuit or arbitration between an insured and the insurer,” Arguello’s opinions, especially his opinion that the evidence does not support Westfield’s counterclaims, were improper because this type of testimony will invade the province of the jurors, who will be tasked with evaluating whether the evidence supports Westfield’s counterclaims. 

    Reliability

    The Court questioned Arguello’s ability to speculate as to Westfield’s rationale and motivation for filing its counterclaims, concluding that such testimony would be inherently unreliable. Further, the Court was well-informed of the timing of Westfield’s counterclaims when it determined that good cause existed to permit Westfield leave to amend its answer to bring the counterclaims. He appeared to question the Court’s ruling, which was another reason his counterclaims opinions were impermissible

    Held

    The Court granted in part and denied in part Westfield’s motion to exclude opinions and testimony of Damian J. Arguello.

    Key Takeaways:

    Westfield challenged Arguello’s expert opinions, arguing they contained factual inaccuracies, improper legal conclusions, and speculative reasoning. The Court ruled as follows:

    i) Testimony on Industry Standards – Arguello could testify about the relevant insurance industry standards concerning an insurer’s duty to investigate claims but could not state that Westfield’s claim handling was unreasonable.

    ii) Opinions on Counterclaims – The Court rejected Arguello’s opinion that “the available evidence doesn’t support Westfield’s counterclaims,” determining that such testimony would improperly invade the jury’s role in evaluating the evidence.

    iii) Speculation on Westfield’s Motives – The Court found Arguello’s testimony questioning Westfield’s rationale and motivation for filing counterclaims inherently unreliable.

    Case Details:

    Case Caption: JME Investments, Llc Et Al V. Westfield Insurance Company
    Docket Number: 1:22cv1012
    Court: United States District Court for the District of Colorado
    Order Date: January 30, 2025
  • Life Care Planning Expert Witness Allowed to Testify Despite Her Limited Experience with Pediatric Patients

    Life Care Planning Expert Witness Allowed to Testify Despite Her Limited Experience with Pediatric Patients

    On July 29, 2022, a minor, Kamila, represented by her mother Keila Robles Figueroa (“Plaintiff” or “Robles”), filed a medical malpractice lawsuit against Dr. Juan C. Castañer (“Castañer”), Presbyterian Community Hospital, Inc. (“the Hospital”) and the Hospital Pediátrico Universitario (collectively “Defendants”). The allegations of negligence in this lawsuit are centered on the medical care providers’ treatment of Robles and her baby during her pregnancy, delivery, and the neonatal care of her premature infant. Robles claimed that the Defendants deviated from the established standards of care.

    Defendants sought to exclude the testimony of Plaintiff’s life care planning expert witness, Jocelyn Holt.

    Life Care Planning Expert Witness

    Jocelyn Holt is a certified life care planner since 2017. She is also a Licensed Occupational Therapist in the states of Florida and North Carolina. She holds  a bachelor’s degree in Science, occupational therapy with a minor in Health Science Education from the University of Florida. In addition, she holds a Life Care Planning Certification Course from the Institute of Rehabilitation Education and Training. Her experience since 2002 has been mainly as an Occupational Therapist, yet since 2018 she is the owner of and life care planner at Planning Hope, LLC in Gainesville, Florida. 

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

    Discussion by the Court

    Defendant’s Arguments

    According to Defendants, Holt’s limited experience with pediatric patients, particularly infants and children with complex medical conditions like autism and brain injury, and her inexperience in preparing a life care plan for a medical malpractice case is a significant factor in disqualifying her testimony. They added that Holt did not collaborate with or consult any medical experts, including neurologists, pediatricians, or other relevant specialists, before rendering her life care plan. Specifically, they maintained that she prepared her life care plan without consulting any of Kamila’s treating physicians. In addition, Defendants argued that since Holt relied on generalized data from the Center for Disease Control and Prevention (“CDC”) as to life expectancy— that is not specific to Kamila’s condition— and did not consult appropriate experts, her testimony does not meet the Daubert standards because it lacked a reliable foundation. Defendants also questioned Holt’s methodology and conclusions as speculative and unreliable.

    Plaintiff’s Arguments

    In response, Plaintiff submitted that the motion in limine constitutes an untimely dispositive motion disguised as a motion in limine. To this extent, Plaintiff argued that this District has already held that “a motion in limine to exclude the Plaintiff’s expert on grounds that his opinion is unreliable was not the appropriate tool to move for judgment on a particular claim.”

    She argued that “an expert witness may base his opinion on reports, writings or observations not in evidence which were made or compiled by others, so long as they are of a type reasonably relied upon by experts in that particular field.”

    Analysis

    A. Holt’s Qualifications

    Based on her credentials and extensive experience, the Court determined that Holt was qualified to testify as a life care planner.

    B. Holt’s Life Care Plan for Keila Robles on behalf of Kamila Robles (“Life Care Plan Report”)

    Holt’s life care plan report, dated April 18, 2023, indicates that “the recommendations are gathered from information provided by [Kamila’s] medical providers through records and evaluations, Keila Robles, evidenced [sic] base practices, as well as knowledge/experience from this life care planner.”

    Moreover, during her deposition, Holt admitted that she did not consult any physician before she rendered the life care plan report. She also stated that the life care plan reflects her opinion, based on her assessment after speaking with Kamila’s mother and reviewing her medical record. To this extent she expressed that she interviewed Kamila’s mother on two different occasions. 

    Holt used the National Vital Statistic Reports and CDC data and indicated she was not an expert in life expectancy. To that extent, in her life care plan Report, Holt clearly stated that “opinions on the life expectancy tables are deferred to an appropriate expert.”

    In addition, in page 15 of her life care plan report, Holt listed a series of references used to prepare her report, which included various website links including the CDC and other publications from the pediatric and medical field.

    Foremost, and Plaintiff admitted as much, Holt will only testify as a life care planner, and not as to the applicable medical standards of care; the departures from the medical standards of care by Defendants in the treatment of Kamila; or the causal relationship between the alleged departure from the medical standards of care with Kamila’s damages. 

    Reliability and Methodology

    While Defendants questioned the reliability of Holt’s life care plan because she did not consult Kamila’s physicians and attacked Holt’s conclusion because of her methodology and basis, the Court noted that in the first few pages of his report, Holt employed the standard methodology applied by life care planners which requires consideration of: (a) available medical records; (b) assessment of the individual; (c) assessment of the data and the individual’s needs, and (d) research of the costs within the relevant geographical area of items needed for the proper care of the patient. This appeared to be a sufficiently reasonable and reliable method for formulating a life-care plan.

    The Court agreed with the Defendants to the extent that there might be some deficiencies in the strength of support for some of the recommendations in Holt’s life care plan report, but concluded that those issues go to the weight, and not the admissibility, of Holt’s testimony. Holt will be able to testify, and be subject to cross-examination, about her opinions in this case. 

    Held

    The Court denied the Defendant’s motion in limine to exclude the testimony of Plaintiff’s life care planning expert witness, Jocelyn Holt.

    Key Takeaway:

    Despite challenges to Holt’s qualifications, the Court determined she was qualified to testify, given her extensive experience as a certified life care planner and licensed occupational therapist. Defendants argued that Holt’s failure to consult Kamila’s treating physicians and her reliance on generalized data from the CDC rendered her testimony unreliable. However, the Court noted that life care planners are not required to consult with treating physicians when formulating life care plans. Furthermore, the Court found Holt’s methodology to be reasonable and consistent with standard practices in the field. While the Defendants raised valid concerns about the strength of some of Holt’s conclusions, the Court concluded that these issues affected the weight of her testimony, not its admissibility. As a result, Holt was allowed to testify, and the Court permitted cross-examination regarding her opinions.

    Case Details:

    Case Caption: Robles-Figueroa V. Presbyterian Community Hospital, Inc. Et Al
    Doket Number: 3:22cv1361
    Court: United States District Court for the District of Puerto Rico
    Order Date: January 27, 2025

  • Ski Safety Expert Witness is Not Qualified to Opine on the Ultimate Mechanism of Injury

    Ski Safety Expert Witness is Not Qualified to Opine on the Ultimate Mechanism of Injury

    This case involves a ski collision that occurred on March 19, 2023, involving Plaintiff, Tasha Barber and Defendant, Christine Mack that occurred at Aspen Highlands Ski Resort. The Plaintiff alleged that the Defendant was skiing uphill of her and had the primary duty to avoid colliding with the Plaintiff.

    As a result, the Plaintiff sought damages for her injuries from the crash. The Defendant denied the allegations and, as part of her defense, retained Jonathan Delk as an expert. In his expert report, Delk included a section titled “Conclusion and Opinions” in which he reached a variety of factual conclusions and offers his opinions. At the end of that section, Delk offered three opinions:

    1. Barber was responsible for avoiding the collision based on her being the uphill skier.

    2. Barber was neither prepared nor aware enough to begin skiing, nor does she acknowledge that her being in motion (“coasting”) as skiing, which it is. These real facts and perspectives shared by Tasha Barber prove that Tasha was not sufficiently in control or aware of her surroundings to have avoided a collision.

    3. Barber’s choice of actions to avoid the collision (shouting, leaning back, twisting) were ultimately the cause of her skis coming into contact with Christine Mack’s. Tasha Barber’s movements were the ultimate mechanism of her injury.

    The Plaintiff challenged the admissibility of these opinions, characterizing them as paid advocacy masquerading as expert testimony.

    Ski Safety Expert Witness

    Jonathan Delk is an experienced trainer and risk manager with 15 years of ski, snowboard, and cycling coaching and training experience. From 2004 – 2019 he was employed in various roles in the ski industry including instructor,
    guide, coach, trainer, manager, and director of snowsports.

    During his tenure in the ski industry, he created and administered safety trainings for instructors and resort staff related to the Skier’s Responsibility Code and the Colorado Skier’s Safety Act. While his primary work has shifted fields, he remains active in the ski industry both as an instructor and member of PSIA-AASI, the governing body of instructor certifications in the United States for which he was also employed during his career as an examiner.

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

    Discussion by the Court

    According to Delk’s report, he considered deposition transcripts, documents from this case, the Colorado Ski Safety Act of 1979, the NSAA Skier’s Responsibility Code, and a video of the incident. 

    First Opinion

    The Court held that the justification for Delk’s first opinion, for example, began by noting that the Colorado Ski Safety Act put the primary duty to avoid collision “on the person skiing downhill” as to “any person or objects below him.”

    That is fine as far is it goes. But the main conclusion he employed in the opinion — that the Plaintiff was the uphill skier — is largely rooted in his estimation of the paths of travel of the various individuals involved. And it is unclear what methodology Delk employed in crafting that estimation. He provided terrain photographs and stated conclusions, but their provenance is a mystery: there is no analysis, measurements, information about the grade of the land, or any concrete methodology supporting the conclusions.

    The Defendant protested, arguing that Delk applied specialized terrain knowledge to plot probable paths and project the parties’ trajectories. That is not what his report showed. Instead, Delk presented two maps with path lines drawn on them without explanation as to why those paths would be any more reliable than a casual skier’s guess. That will not do. It did nothing to “explain how [his] experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.”

    Accordingly, the Court found Delk’s opinion—that Tasha Barber was responsible for avoiding the collision because she was the uphill skier—to be unreliable.

    Second Opinion

    The Court held that Delk’s opinion on the mental state of the Plaintiff appeared detached from any cognizable methodology. Indeed, he provided no clear path as to how he arrived at his conclusion. His statement that coasting is skiing — while potentially true — appeared to be pure ipse dixit on the face of the report. Accordingly, the Court concluded that the Defendant has not satisfied her burden of showing that the opinion is reliable.

    Third Opinion

    The Plaintiff characterized Delk’s opinions as irrelevant, devoid of legal support, prejudicial, and invading the province of the jury. The Court ultimately found that they were not supported by Delk’s qualifications or methodology.

    It should be noted that Delk is experienced in ski instructor training and, through the Professional Ski Instructors of America and American Association of Snowboard Instructors, he is a certified instructor. While that background clearly made him knowledgeable about the general responsibilities of skiers, such as those enumerated in the Skier’s Responsibility Code and the Colorado Skier’s Safety Act, general qualifications alone did not end the analysis.

    The Court held that the second sentence of Delk’s third enumerated opinion did not relate to Delk’s experience or training. To opine about the ultimate mechanism of injury is a medical conclusion, and neither Delk nor the Defendant contended that Delk had any medical training, education, or experience that would allow him to render an expert opinion on injury causation. And given that it is the Defendant who “bears the burden of establishing that the expert is qualified” to render his opinions, that alone defeated the propriety of this section of the opinion.

    The Defendant demurred. That sentence, she insisted, simply weighed in on liability, not injury. That is not what it says. The first sentence is the one that opines on the cause of the collision; the second plainly adds a gloss regarding the cause of the Plaintiff’s injury. Delk has no qualifications permitting such a gloss. Accordingly, the Court excluded Delk’s opinion regarding the cause of the Plaintiff’s injuries.

    The first sentence of the opinion fared no better for a different reason: it lacked reliability. Delk did not explain his methodology for reaching this opinion. 

    Held

    The Court granted the Plaintiff’s motion to strike the opinions of Jonathan Delk.

    Key Takeaway:

    The Court held that Delk’s opinions incorporate little by way of reliable expertise. His first opinion is rendered not to illustrate the impropriety of skiing uphill — which could be a valid subject for expert testimony — but instead to opine that the Plaintiff was skiing uphill, grounded, apparently, in an “assum[ption].” Delk’s second opinion, rather than educating the jury as to how one would be prepared to ski, simply casts aspersions on the plaintiff’s preparedness level. His third appears to have “no application of knowledge, experience, or expertise to the conclusion” he “reaches about proximate cause.”

    While a jury can consider opposing testimonies, when one of them comes from a purported expert, it must still be grounded in reliable experience or methodology to “help the trier of fact to understand the evidence or to determine a fact in issue.”

    The Court held that Delk’s opinion was based almost entirely on his selection of facts, without apparent application of reliable principle or experience that grounds his selectivity or that would aid a jury. It therefore failed to “reveal how the experience led to the expert’s conclusion,” let alone “how the experience was reliably applied.”

    Case Details:

    Case Caption: Barber V. Mack
    Docket Number: 1:24cv260
    Court: United States District Court for the District of Colorado
    Order Date: January 27, 2025
  • Economics Expert Witness’ Opinions Cannot be the Basis for Finding Antitrust Injury 

    Economics Expert Witness’ Opinions Cannot be the Basis for Finding Antitrust Injury 

    In this antitrust action, separate Plaintiff groups of users and advertisers sued Meta Platforms, Inc. (Meta), for alleged anticompetitive conduct under the Sherman Act and California state law in connection with the Facebook social-networking app.

    The user group, headlined by named Plaintiffs Maximilian Klein, Sarah Grabert, and Rachel Banks Kupcho, alleged that Meta illegally acquired and maintained a monopoly in the “personal social network services” (PSNS) market “through repeated misrepresentations over its data collection and use practices” that “deprived its competitors of the ability to compete.” The user Plaintiffs have asked to certify a class of all persons in the United States who used a Facebook profile between December 2016 and December 2020. 

    The certification request rises or falls on the validity and reliability of the opinions of the user Plaintiffs’ economist, Nicholas Economides, with respect to antitrust injury and other elements required for proof of a monopolization claim. Meta asked to exclude the opinions of Dr. Economides under Federal Rule of Evidence 702 and related cases.

    Meta illegally acquired and maintained a monopoly in the PSNS market

    The user Plaintiffs’ main allegation is that Meta illegally acquired and maintained a monopoly in the PSNS market by deceiving users into believing that Facebook’s data collection and privacy practices were more protective than they actually were.

    In Plaintiffs’ view, these false assurances prevented other firms from effectively competing in the alleged PSNS market. The user Plaintiffs contended that this barrier to competition injured them in a manner contemplated by the antitrust laws.

    For the request to certify a class comprised of millions of Americans who used Facebook over the span of four years, the user Plaintiffs advance a single theory of antitrust injury. The theory is that, but for the misrepresentations about data privacy, Meta would have found itself in a competitive PSNS market that would have forced it to pay users for their data to retain robust user engagement. This theory is based entirely on the report of Economides, who opined that “Facebook would have compensated [users] a certain amount per month for their data in the but-for world where [users] knew the truth about Facebook’s data practices, because the alternative would have led to an unacceptable loss of market share for Facebook.”

    Economics Expert Witness

    Nicholas Economides is an internationally recognized academic authority on network economics, electronic commerce and public policy. His fields of specialization and research include the economics of networks, especially of telecommunications, computers, and information, the economics of technical compatibility and standardization, industrial organization, the structure and organization of financial markets and payment systems, antitrust, application of public policy to network industries, strategic analysis of markets and law and economics.

    Professor Economides has published more than 100 articles in top academic journals in the areas of networks, telecommunications, oligopoly, antitrust, product positioning and on the liquidity and the organization of financial markets and exchanges. He holds a Ph.D. and M.A. in Economics from the University of California at Berkeley, as well as a B.Sc. (First Class Honors) in Mathematical Economics from the London School of Economics. Previously, he taught at Columbia University (1981-1988) and at Stanford University (1988-1990).

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

    Discussion by the Court

    Economides starts with the general observation that, in competitive markets, “sellers must lower their prices or else lose market share.” He starts with the general observation that, in competitive markets, “sellers must lower their prices or else lose market share.”

    This observation requires immediate modification for the alleged PSNS market because, as every online denizen knows, Facebook and other social-networking apps are provided without charge to users. Economides attempts to account for this fact by saying that, although users do not pay Meta to use Facebook, Meta “charges a price to users in the form of data collection and use.” He then proposes that, in a but-for world where competition in the PSNS market was not illegally constrained as alleged by plaintiffs, rival apps would offer “more competitive privacy practices” than Facebook, which would compel Meta to compete through “a reduction in the effective price of using Facebook.” 

    Economides postulated that this “reduction in the effective price” would take the form of a “negative price,” by which he means an affirmative payment by Facebook to users for their data. He quantified this but-for payment to be $5.00 per user per month.

    Consequently, Economides concluded that the putative class of users suffered antitrust injury by being “overcharged” by Facebook, in that they were not affirmatively paid a flat rate of $5.00 per month for using Facebook, and that this resulted over the relevant class period in “total damages to the Class of $52.8 billion (pre-trebling).”

    Meta’s Motion To Exclude Economides’ Testimony

    Meta stated that Economides’ antitrust injury opinions amount to ‘junk science’ and should be excluded from the case under Federal Rule of Evidence 702 and the familiar standards set by the Daubert line of cases. 

     In Meta’s view, “the mere theory of ‘negative price markets’ . . . cannot bridge the analytical gap between how [Facebook] actually competes for users and how Economides speculates it would.” 

    Economides’ Antitrust Injury Opinions

    Meta did not challenge Economides’ qualifications, and rightfully so. The record indicated that he is a qualified antitrust economist. 

    Meta’s main criticism was that Economides’ antitrust injury opinion, namely that Facebook users suffered the loss of direct payments for their data that they assertedly would have received in the but-for world, was unsupported by the record.

    The necessary links in Economides’ theory of antitrust injury are: (1) Meta competes on price and quality (2) in the but-for world without the alleged data-privacy deception, Meta would face greater competition from rivals with respect to privacy practices (3) in response to greater competitive pressure, Meta would compete on price instead of quality to avoid losing users to rivals (4) even though the price for using Facebook is “zero,” in the sense that no money is exchanged, economic theory recognizes that competitive conditions in certain markets can result in “negative” prices (5) accordingly, Meta would pay users a “negative” price to retain them instead of collecting less data.

    Because Economides cited credible sources for the various economic concepts he applied, the Court saw no basis for concluding those theories and principles themselves are not well accepted in the field of economics.

    In response to greater competitive pressure, Meta would compete on price instead of quality to avoid losing users to rivals

    Meta did not challenge Economides’ belief that Facebook would not change its data-collection practices in the but-for world. Rather, the thrust of Meta’s challenge to his opinions on antitrust injury concerns the third link described above that Facebook would choose to compete on price instead of quality in the but-for world to avoid losing users.

    To be sure, Economides relied on economic literature discussing the theory and existence of negative prices in online and double-sided platform markets, which are the types of markets the PSNS market is said to be. However, the Court held that economic theory alone does not make his opinions admissible. 

    In addition, the user Plaintiffs did not even allege, let alone establish with evidence, that any other participant in the PSNS market has ever competed by paying users. In telling contrast, Meta provided evidence that firms in the PSNS and adjacent markets have never competed via “negative” prices.

    The record undercuts the third link in Economides’ theory by demonstrating that firms in the PSNS market, including Meta, have consistently competed on the axis of quality through better content, functionality, services, and the like to keep users engaged and the stream of user data flowing, even if the firms theoretically could compete on price. The Court held that this undisputed record about the real world, and the lack of any meaningful contrary evidence, is a big red flag for Economides’ theory.

    Also, citations to economic literature did not demonstrate that the economic principles of zero-and negative-price markets were reliably applied to the facts of this case.

    Overall, Economides did not identify reliable and validated economic literature to support his specific conclusion that, upon coming to the proverbial fork in the road between quality and price, Facebook would choose price in the but-for world

    Lack of Sufficient Factual Grounds

    Besides, Economides pointed to research initiatives where Meta paid individuals in test groups to permit Meta to harvest and use a range of data from them. The problem for Economides is that these market-research programs entailed payments for user data outside the context of Facebook’s social-networking services, where Meta is not already “bartering” for user data with Facebook’s services and the quality thereof. 

    The problem of factual fit also affected Economides’ opinions about Meta’s internal discussions of paying users. The Court held that the two discussions that he highlighted actually concerned user data that Meta could not or did not already obtain through Facebook’s social-networking service.

    A third proposal discussed by Economides arose in the context of Apple’s 2020 App Tracking Transparency (ATT) feature, which required apps running on Apple products to “obtain users’ agreement to ‘track’ users (i.e., collect and use their data) outside that app” through a pop-up prompt. This proposal contemplated paying a “data dividend” (i.e., money for relevant purposes) “to users to incentivize them to continue providing their data to Facebook” when confronted with the ATT prompt. The Court found Economides’ analysis of this proposal and its relevancy perfunctory to the point of being of little utility.

    To be sure, a fourth and final proposal did contemplate “paying users for access to their personal information” as part of a “transparent approach to privacy that should become the model moving forward.” 

    The Court held that this idea alone, which Meta ultimately rejected, is too thin a reed on which to base the sweeping extrapolation Economides makes that Meta would pay all U.S. users money every month for using Facebook.

    Analysis

    Even taken as a whole, the Court held that the four proposals did not provide “sufficient factual grounds”  for the third necessary link in Economides’ theory. 

    For all four, he opined that “Facebook recognized that the data it was collecting and using was responsible for much of its revenue and that it would make economic sense to compensate users in order to get that data (rather than lose it).”

    But that conclusion does not necessarily follow from the starting point. Economides never explained why Meta would focus exclusively on answering new competition by paying users. There is no doubt, as he says, that Meta makes a lot of money from user data, but he did not demonstrate that Meta would be compelled to retain users by paying them, rather than through innovations in services and product quality. This shortfall goes beyond merely ignoring evidence that Meta in the real world has consistently competed on the basis of quality.

    Consequently, the Court concluded that Economides’ opinions cannot be the basis for finding antitrust injury in this case. 

    Held

    The Court granted in part Meta’s motion to exclude Economides’ opinions about antitrust injury. The Court denied the user Plaintiffs’ renewed motion for class certification.

    Key Takeaway:

    There is simply too great an analytical gap between the facts on which Economides relies and that third link in his theory. The purpose of the Court’s inquiry under Rule 702 is to “ensure that proposed expert testimony imparts ‘scientific knowledge’ rather than guesswork.” Because that necessary third step in his theory of antitrust is without basis, and so rests on guesswork, the Court cannot conclude that Economides’ methodology and opinions are reliable and consequently admissible.

    An expert’s job is to consider existing data and make inferences, hypotheses, and extrapolations, and “for this reason, ‘an expert is permitted wide latitude to offer opinions.’” Even so, there must be a sound foundation in the evidence to support every step on the way to their conclusions. 

    Case Details:

    Case Caption: Klein Et Al V. Meta Platforms
    Docket Number: 3:20cv8570
    Court: United States District Court for the Northern District of California
    Order Date: January 24, 2025
  • Accounting Expert Witness’ Testimony on Firing Personnel and Cutting Costs Post-Closing Admitted

    Accounting Expert Witness’ Testimony on Firing Personnel and Cutting Costs Post-Closing Admitted

    Plaintiffs Weston D. McArtor (“McArtor”) and BEI Services, Inc. (“BEI Services”) (collectively, “Plaintiffs”), brought this civil action against the Defendants Valsoft Corporation Inc. (“Valsoft”) and Aspire USA, LLC dba Aspire Software (“Aspire”) (collectively, “Buyers” or Defendants”).

    This action involved the sale of Plaintiffs’ business, Nexera, to Defendants. Prior to the acquisition, Nexera was in the business of “developing and providing data analytics software for performance measurement and benchmarking of service operations including, but not limited to, the printing industry.” Defendants, on the other hand, “specialize in the acquisition and development of software companies in vertical markets.” 

    In 2022, McArtor “began an extensive search to find a buyer to purchase and continue [Nexera’s] operations.” Ultimately, he found Valsoft and “initiated discussions wherein Defendants would purchase [Nexera], retain the employees and continue its operations.” These negotiations culminated in the parties entering into an Asset Purchase Agreement (“APA”). Under the APA, Defendants purchased Nexera, and the majority of BEI’s assets for $3.5 million. The APA also contained a provision allowing “BEI to receive future contingent payments and earnout payments if Nexera met certain performance goals for Defendants after the acquisition.” Additionally, BEI and Aspire entered into a Consulting Agreement…by which McArtor would serve as a part-time consultant on business related matters for a six-month term with a renewal option thereafter.

    In the instant suit, Plaintiffs claimed Defendants breached the APA by fraudulently conspiring and intentionally underperforming, thereby thwarting BEI’s ability to receive the contingent and earnout payments. Further, Plaintiffs alleged that Defendants breached the Consulting Agreement by terminating McArtor as a post-acquisition consultant, less than six months after entering the Consulting Agreement. In sum, Plaintiffs asserted nine causes of action in both contract and tort.

    Defendants filed a motion to strike Plaintiffs’ expert Brian Lappen.

    Accounting Expert Witness

    Brian Lappen holds a Master of Accountancy degree from the University of Wisconsin-Madison; he is a licensed CPA in Illinois and a Forensic & Valuation Principal with Plante Moran, an audit, tax, consulting, and wealth management firm. Lappen has 23 years of experience in public accounting, which includes “consulting with clients on a diverse array of forensic accounting engagements and litigation and dispute matters, including matters involving merger and acquisition disputes, damage calculations, and the application and interpretation of Generally Accepted Accounting Principles (“GAAP”) for the financial reporting of both private and publicly traded companies.”

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

    Discussion by the Court

    Generally, Defendants argued that (1) Lappen’s opinions were not based on sufficient facts or data; (2) Lappen did not use reliable methodologies or reliably apply those methodologies; and (3) Lappen’s opinions would not assist the trier of fact.

    Lappen has met the requirements of Rule 26(a)(2)(B)

    The Court found that Lappen gave a satisfactory statement of all the opinions he will express, the bases/reasons for those opinions, the facts and data considered, and the exhibits that will be used to summarize or support his opinions. 

    Lappen has also satisfactorily set forth his qualifications. His curriculum vitae includes a list of all the publications he has authored in the past 10 years, and all the cases he has testified as an expert at trial or been deposed for in the last four years. 

    Finally, Lappen noted that he is being compensated “on an hourly basis at $525 per hour.” In reviewing Lappen’s expert report and attachments, the Court concluded that he has satisfied the requirements of Rule 26(a)(2)(B).

    Lappen possesses the requisite “knowledge, skill, training, or education” required under Rule 702

    First of all, Defendants did not directly question Lappen’s qualifications. In reviewing Lappen’s background, the Court concluded that he is qualified by his years of training, education, and experience. 

    Lappen’s opinions are sufficiently reliable

    Lappen ignored certain facts and data when arriving at the conclusion that price increases post-acquisition had a material adverse effect

    Defendants first argued that Lappen ignored certain facts and data when arriving at the conclusion that price increases post-acquisition had a material adverse effect. Defendants further argued that Lappen did not provide definitive proof that numerous customers left due to the purported rushed price changes.

    However, Defendants conflate the appropriate standard; as noted, an expert does not need “definitive proof” to reach their conclusions. To the contrary, even if the Court thinks an expert’s conclusion is incorrect, it will be admissible so long as the expert’s opinions are based on reliable reasoning or methodology.

    As Plaintiffs pointed out, Lappen based his opinion, at least in part, upon a spreadsheet that identified the reasons customers left. Moreover, Lappen and Defendants’ expert agreed that at least four customers left Nexera because of the rushed price increases.

    Lappen’s opinions regarding firing Nexera personnel and cutting costs post-closing are unreliable

    Defendants took issue with Lappen’s conclusion that Defendants’ decisions to fire certain Nexera personnel and cut costs post-closing was materially adverse to the operations of Nexera.

    Once again, the Court found that Lappen’s opinions are supported by the record evidence—e.g., sworn testimony from Defendants’ employees, Bethany Sondeno and Nicola De Blasi. 

    Defendants argued that there were other explanations that could account for a decrease in business post-closing, and Lappen did not consider those potentialities.

    However, as Plaintiffs correctly pointed out, “Lappen can evaluate the record evidence and accept or reject [it] in accord[ance] with what he deems credible based on his experience. Defendants cannot wish away record evidence damaging to their case any more than [they] can prevent Lappen from relying on the same as a basis for his opinions.”

    The Court agreed and found that Lappen’s opinions regarding firing Nexera personnel and cutting costs post-closing are rooted in sufficient reasoning and methodology to meet the reliability threshold under Rule 702.

    Defendants’ concerns with respect to the methodology, evidence, and data relied upon and not relied upon, go to the weight of the evidence, not admissibility

    Finally, Defendants argued that Lappen’s opinion that “Defendants’ failure to cross-sell Nexera with another company…negatively affected Plaintiffs’ ability to meet the earnout and contingent payments” is methodologically flawed and fails to account for a software conflict that prevented cross-selling.

    Once again, Defendants’ argument concerned the weight of the evidence, not its reliability. As far as the Court can surmise, in reaching his conclusions on cross-selling, Lappen relied upon the record evidence and his own experience. While Defendants clearly disagreed with his conclusion, the Court found Lappen’s opinion was sufficiently reliable under Rule 702.

    Ultimately, the Court found that Lappen adequately set forth his opinions and the corresponding bases for those opinions based upon the inspection, review, and interpretation of facts and data; subsequently, he utilized his own personal knowledge, experience, and understanding of the industry to reach his opinions.  

    Lappen’s opinions will assist the trier of fact

    In Cook v. Rockwell Intern. Corp., 580 F. Supp. 2d 1071 (D. Colo. 2006), it was held that “doubts about whether an expert’s testimony will be useful should generally be resolved in favor of admissibility unless there are strong factors such as time or surprise favoring exclusions.”

    The Court must determine whether Lappen’s opinions will assist the trier of fact. In this case, the Court is the trier of fact. As such, the Court is afforded far greater leeway in determining whether expert testimony will assist the fact finder, i.e., itself. In this case, the Court found no such countervailing factors, and as such, the Court found that Lappen’s testimony and report will assist the fact finder.

    Concerns about reliability are diminished in a bench trial

    In a bench trial setting, it is appropriate for the Court to allow the expert to testify, and later make determinations about the admissibility, weight, and credibility of the expert’s testimony.

    The fact that the Court will sit as the finder or fact alone is not dispositive of the inquiry of expert qualification; however, given that Lappen met the requirements of Rule 26 and Rule 702—and concerns about presenting unreliable or irrelevant testimony to the jury are effectively neutralized—the Court saw no reason why Lappen should be barred from testifying, nor why his expert report should be stricken. Further, the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system. Vigorous cross-examination, and presentation of contrary evidence are the traditional and appropriate means of attacking shaky but admissible evidence.

    Held

    The Court denied the Defendants’ motion to strike Plaintiffs’ expert Brian Lappen.

    Key Takeaway:

    In reaching most of his conclusions, Lappen relied upon the record evidence and his own experience. The Court found that Lappen adequately set forth his opinions and the corresponding bases for those opinions based upon the inspection, review, and interpretation of facts and data; subsequently, he utilized his own personal knowledge, experience, and understanding of the industry to reach his opinions. The absence of strong factors such as time or surprise favoring exclusions was noted.

    Case Details:

    Case Caption: McArtor Et Al V. Valsoft Corporation Inc Et Al
    Docket Number: 1:23cv136
    Court: United States District Court, Wyoming
    Order Date: January 24, 2025
  • Design Defect Theories Employed by Mechanical Engineering Expert Witness Deemed Unreliable

    Design Defect Theories Employed by Mechanical Engineering Expert Witness Deemed Unreliable

    On August 23, 2021, Plaintiff Virginia Huss used a Ninja BL660 blender, designed and manufactured by Defendant SharkNinja Operating LLC, to blend a mixture of chocolate chips that she had microwaved for 60 to 90 seconds. After blending, Huss attempted to twist open the blender lid and the lid shot off the blender cup, causing scalding hot fudge to explode and burn her face, chest, arms, and hands. As a result, Huss initiated this product liability against SharkNinja.

    In her amended complaint, Huss focused on the ‘cool to explosively hot’ theory, which posits that the blender’s fast-moving blade heats cool or room temperature food which creates friction and, ultimately, causes the blender contents to explode when the user opens the blender cup.

    Huss Filed the Following Allegations in Support of her Cool to Explosively Hot Theory:

    a. The blender is defectively designed because “the extremely fast-moving blade of the blenders heat the contents of the sealed bullet-shaped canister, which can (and does) unexpectedly explode when being used in its normal and intended manner by consumers. In a matter of a short amount of time, the fast-spinning blades can unexpectedly heat up its contents, such that if the blender explodes, the user is at risk of severe burns or lacerations and injuries requiring medication attention.”

    b. “During the normal, as-directed use of the blender, a consumer puts cool or room temperature food into the plastic ‘bullet’ cup. Once the cup is secured to the blade assembly and placed onto the unit’s base, the user is able to run the blender by pressing down on the cup. The blades then rotate, creating friction as they cut and chop the cup’s contents, which in turn causes the contents to heat up.”

    c. “As the temperature rises inside the cup, the pressure from the frictional energy also rises. The temperature can get so hot that the pressure inside the cup forces the cup to separate from the blade while the blender is still running. This can cause the hot contents of the cup to explosively project outward without warning, landing on anyone and anything nearby.”

    d. “Even if the cup does not separate from the blender while in use, the user is still at risk. If the contents of the cup are hot and under pressure when the cup is opened, the hot contents can again be explosively ejected onto the user, causing se[ve]re lacerations from a detached blade.”

      Derek King

      King set forth three other design defect theories in his expert report:

      (i) that the threaded connection between the blender cup and the blade assembly is “susceptible to slippage and so it may separate…before venting can occur” (the “Thread Slippage Theory”)

      (ii) that “the threaded connection was under load (from internal pressure) and also at an elevated temperature” and “it is likely that one or both materials experienced some softening due to temperature which contributed to the threads failing to keep the blade assembly fastened to the cup long enough for the pressure to vent” (the “Softening Materials Theory”)

      (iii) that Huss had observed that the blade assembly “kind of untwists itself the rest of the way,” which King found was “consistent with the force from internal pressure being transferred into a rotational motion due to the slope of the threaded connection between the cup and blade assembly” (the “Spontaneous Untwisting Theory”)

      In response, SharkNinja filed a motion to exclude the expert testimony of Derek King.

      Mechanical Engineering Expert Witness

      Derek A. King has a Bachelor of Science degree in Mechanical Engineering from the University of California, Berkeley and a Master of Science in Electrical Engineering from Ohio University. He has worked as an engineer for Berkely Engineering and Research since 2009 “in the areas of failure analysis, design, and risk assessment of consumer and industrial equipment, including industrial pressure vessels and consumer propane tanks, pressure cookers and blenders.”

      Want to know more about the challenges Derek A. King has faced? Get the full details with our Challenge Study report.

      Discussion by the Court

      King’s Testimony

      King was tasked with providing his opinions regarding the following topics:

      (1) “Whether or not the blender would enable and allow the incident to occur”; and

      (2) “What design aspects of the subject blender enable and/or fail to mitigate the risks of pressurization and burn injury.”

      By “applying well-established engineering principles” and performing “exemplar testing,” King concluded that “a sealed blender cup will heat and pressurize due to the blending process, thus establishing the possibility that the subject blender could create the hazard and risk consistent with Huss’ description.”

      As to his “exemplar testing,” King provided a spreadsheet which reflected the following headings: (1) T(s); (2) External °F; (3) Internal °F; (4) Pressure PSI; (5) Note; (6) T-start; and (7) Recipe. Oddly, the Court noted that King provided no explanation whatsoever in his Report regarding the meaning of the headings, exactly what the variables of his tests were, and what the outcomes of his tests were. SharkNinja described King’s test results as follows:

      • “The only testing of the incident recipe that King conducted involved blending a chocolate-chip mixture heated to 121°F. But this testing did not result in any pressurized ejection of hot content.”

      • “King blended incident recipe ingredients that were preheated to 121°F for one minute and 49 seconds in a BL660 single-serve cup, and this testing did not demonstrate any explosive projection of the cup’s contents.”

      It should be noted that Huss did not dispute SharkNinja’s characterizations of King’s testing and did not otherwise discuss the testing other than to assert that King considered Huss’ testimony that the chocolate chips were “lukewarm” temperature and “applied it to his analysis.”

      Analysis

      Absent an explanation from King or Huss — or disagreement regarding SharkNinja’s characterization — of the meaning of the data contained on King’s testing spreadsheet or how the testing was carried out in general and what results it yielded, the Court proceeded to analyze King’s opinion with the following premise in mind: King’s testing involved blending ingredients that had previously been heated to 121°F for one minute and 49 seconds, and that testing did not result in an explosive projection of the blender’s contents.

      1. Whether King Is Qualified

      SharkNinja did not challenge King’s qualifications as to his design defect opinions. However, the Court found, in accordance with its gate-keeping obligation and the standard set forth in Rule 702, that King’s undergraduate and graduate degrees in mechanical and electrical engineering along with his work experience since 2009 “in the areas of failure analysis, design, and risk assessment of consumer and industrial equipment, including blenders” is sufficient to qualify him to testify regarding design defects in blenders. 

      2. Whether King’s Methodology Is Scientifically Reliable

      The Court also considered whether Huss had sustained her burden of showing that that it is more likely than not that King’s methodology is scientifically reliable and that his testimony will aid the trier of fact.

      a. Cool to Explosively Hot Theory

      SharkNinja argued that King did not have a reliable foundation to provide expert testimony regarding the cool to explosively hot theory because he did not conduct any testing with cool or room temperature ingredients. It asserted that King’s test involved blending a mixture of chocolate chips, sweetened condensed milk, and vanilla extract preheated to 121°F for one minute and 49 seconds in a BL660 single-serve cup blender and that even though he started with preheated ingredients (versus cool or room temperate ingredients) and blended the ingredients longer than Huss did (one minute and 49 seconds versus “probably less than a minute”), “his testing did not demonstrate any explosive projection of the cup’s contents.”

      Accordingly, it argued, King “should be precluded from opining that blending cool or room temperature ingredients for any length of time can result in ‘contents being forcefully expelled from the blending cup under pressure and at high temperature.’” 

      SharkNinja’s main critique of King’s methodology for his opinions regarding the cool to explosively hot theory was that King was not able to re-produce an explosive projection when he blended chocolate chips, sweetened condensed milk, and vanilla extract for a longer period of time than Huss, and that the ingredients he blended were preheated to 121°F rather than being cool or at room temperature as necessary to test the cool to explosively hot theory. 

      Court’s Decision

      The Court acknowledged that “an expert need not wear a lab coat nor cite peer-reviewed studies to reliably lend his expertise to the trier of fact—experience is an equally valuable teacher.”

      But, at bottom, King still had to explain the methodology that he used and how his experience led him to his conclusions. He did not do so and, moreover, the testing he did perform used different conditions than the cool to explosively hot theory, making his methodology regarding his opinion that the blender had a design defect based on that theory unreliable.

      b. Thread Slippage Theory

      While SharkNinja agreed with King’s premise that ‘blending creates friction, friction causes heat, and, given enough time, a marathon blending session can eventually generate sufficient heat and pressure within a sealed cup to cause the blended contents to eject out energetically when the cup is opened,’ it argued, however, that King’s opinions that this can take place after one minute of blending is not supported by testimony or “any other reliable foundation.”

      Specifically, SharkNinja noted that King blended preheated ingredients for one minute and 49 seconds and “did not identify any thread slippage or pressurized ejection of contents” from the blender cup, and that the thread slippage theory is speculation and unreliable. 

      SharkNinja asserted that there is an “analytical gap” in King’s analysis because “whether the blade assembly can ‘shift’ does not address whether the threads between the blade assembly and the BL660 cup can, in fact, ‘slip.’” It noted that King did not identify any testing to support his finding and that Huss does not argue that this theory has been subjected to peer review or publication, is generally accepted in the engineering community, or has a known or potential error rate. 

      Court’s Decision

      The Court rejected Huss’ argument that SharkNinja can simply cross-examine King to address any shortcomings in his methodology. This notion is contrary to the 2023 amendment to Rule 702, which requires the Court to determine whether an expert’s methodology is reliable rather than leaving that determination to the jury. 

      As to SharkNinja’s issues with King’s methodology, King opined that “a potential opportunity for venting before sudden separation is present in the intermittent thread design, however, geometric analysis shows that the threaded connection is susceptible to slippage and so it may separate…before venting can occur.” He described the blender’s threading in detail, but did not set forth any methodology for how he reached his conclusion that thread slippage could have occurred after less than one minute of blending and caused the contents of Huss’ blender to explode. The Court held that King’s methodology regarding his opinion on the thread slippage theory is non-existent and, therefore, unreliable.

      c. Softening Materials Theory

      SharkNinja argued that King “did not attempt to substantiate his softening materials theory with any testing or other reliable foundation,” instead simply noting the deflection temperature of the materials that make up the blender’s construction and stating that it is likely those materials softened during use.

      SharkNinja noted that King examined the blender but “did not state that he observed any evidence of softening in either the blade assembly or the single-serve cup,” that his testing “did not demonstrate any evidence of either component softening,” and that he did not cite any support for his theory in scientific literature or otherwise. 

      Court’s Decision

      The Court rejected Huss’ contention that SharkNinja can simply address shortcomings in King’s methodology through cross-examination and proceeded to consider the issues that SharkNinja raised.

      While King stated in his report that “An overview of the material properties indicates that cup material has a deflection temperature of approximately 200 °F, while the blade assembly deflection temperature is approximately 100 to 300 °F. Huss’ description of a pressurized release and sustaining burn injuries indicates that the threaded connection was under load (from internal pressure) and also at an elevated temperature. It is likely that one or both materials experienced some softening due to temperature which contributed to the threads failing to keep the blade assembly fastened to the cup long enough for the pressure to vent,” he did not indicate that he tested the blender, observed softening of the components’ materials, or employed any other methodology to reach his conclusion.

      He merely stated that ‘it is likely’ the materials ‘experienced some softening’ based on their deflection temperatures, which ‘contributed to the threads failing to keep the blade assembly fastened.’ The Court held that his speculative conclusion is not supported by any methodology. In other words, King’s methodology relating to the softening materials theory is not reliable.

      d. Spontaneous Untwisting Theory

      SharkNinja argued that King simply states that Huss’ observation that the blade assembly untwists itself is consistent with the use of the blender, but “offers no reliable foundation for this opinion,” “does not attempt to substantiate his opinion by citing to any scientific literature (or anything at all other than Plaintiff’s deposition testimony),” and “did not disclose any evidence of the BL660 blade assembly untwisting itself based on the slope of the threaded connection during his own testing of the incident recipe.”

      Basically, SharkNinja contended that King “does not identify any testing that would support his spontaneous untwisting theory,” and noted that his testing with preheated ingredients did not result in the blender cup spontaneously untwisting from the blade assembly. 

      King opined that ‘Huss’ observation that the blade assembly “kind of untwists itself the rest of the way” is consistent with the force from internal pressure being transferred into rotational motion due to the slope of the threaded connection between the cup and blade assembly.’

      He did not state that he tested this theory and observed spontaneous untwisting or set forth any other methodology that he used in reaching this conclusion. He simply baldly stated that Huss’ observation is consistent with the use of the blender and the slope of the threaded connection. The Court held that King’s methodology regarding the spontaneous untwisting theory is speculative and not reliable.

      The Court found that Huss has not sustained her burden of showing by a preponderance of the evidence that King’s methodology as it relates to the cool to explosively hot theory, the thread slippage theory, the softening materials theory, or the spontaneous untwisting theory is reliable.

       3. Whether King’s Testimony Would Aid the Trier of Fact

      SharkNinja argued that King’s opinions would not aid the trier of fact because they were speculative in nature and not based on a reliable methodology.

      The Court held that King’s opinions are not grounded in a reliable methodology — they are not based on any physical testing and King does not set forth any other methodology to explain how he reached his conclusions. The speculative nature of his opinions relating to all four design defect theories will not aid the trier of fact. The Court found that Huss has not shown that it is more likely than not that King’s testimony will aid the trier of fact.

      In sum, Huss has not sustained her burden of showing by a preponderance of the evidence that King’s methodology is reliable and that his opinions would aid the trier of fact.

      Held

      The Court granted the Defendant’s motion to exclude the testimony of Plaintiff’s expert Derek King.

      Key Takeaway:

      Despite King’s qualifications in mechanical and electrical engineering and his experience in failure analysis and design, the Court held that he failed to demonstrate a scientific basis for his conclusions regarding the alleged design defects of the Ninja BL660 blender. His testing did not replicate the conditions claimed by the Plaintiff, and he did not substantiate his theories—such as the cool to explosively hot theory, thread slippage theory, softening materials theory, and spontaneous untwisting theory—with physical testing, mathematical models, or citations to scientific literature. The Court determined that King’s unsupported conclusions would not aid the jury in evaluating the alleged design defects, rendering his testimony inadmissible.

      Case Details:

      Case Caption: Virginia Iris Huss vs. Sharkninja Operating LLC
      Docket Number: 1:23cv1435
      Court: United States District Court for the Southern District of Indiana, Indianapolis Division
      Order Date: January 21, 2025