Over sixty Plaintiffs alleged that Defendant Lockheed Martin Corporation’s weapons manufacturing facility in Orlando released toxic chemicals that contaminated the air, soil, and groundwater, leading to various injuries among the Plaintiffs. The instant case formed a part of a group of related toxic tort cases.
Following a complex history during the dispositive motion stage, the Court resolved the general causation issues. It then shifted focus to specific causation for the limited number of remaining Plaintiffs.
Michael Ballenger began his career with Trinity in Maryland, where he gained significant experience navigating the stringent environmental requirements of the Mid-Atlantic and Northeast. He has developed a specialty in air permitting and compliance by working with both industry and government to implement business objectives while conforming to complex environmental regulations such as MACT and Nonattainment New Source Review.
P. Kristine Davies is a Principal Consultant in Trinity’s Salt Lake City Office. She specializes in regulatory applicability analysis, preparation of emission inventories, Nonattainment New Source Review (NNSR)/Prevention of Significant Deterioration (PSD) permit applications, Title V operating permit applications, and Maximum Achievable Control Technology (MACT) compliance. Since joining Trinity, she has assisted in permitting and compliance projects for facilities in every state and U.S. territory.
Rene’ Salazar holds an undergraduate degree in Microbiology, and Master’s and Doctor of Philosophy degrees in Public Health, both with specialization in the discipline of Industrial Hygiene and has 30+ years of experience in the field of industrial hygiene, both academically and professionally.
Stephen Emsbo-Mattingly possesses more than 30 years of applied chemistry experience. He specializes in the source identification of chlorinated organics, solvents, surfactants, petrochemicals, carbonization byproducts, paper mill wastes, heavy metals, metallurgical wastes, petroleum, fuels, tar, combustion byproducts, soot, ash, slag, dusts, emissions, coke, coal, radiological materials, hydraulic oils, lubricants, asphalts, pesticides, petrochemicals, dielectric fluids, Askarels, and other industrial products in various environmental media.
Shahrokh Rouhani is an environmental scientist and professional engineer, a tenured university professor, and a consultant in environmental statistics, modeling, and data analysis. He holds a Ph.D. in Environmental Sciences (1983) and an S.M. in Environmental Engineering (1980), both from Harvard University, as well as a B.S. in Civil Engineering and B.A. in Economics from the University of California, Berkeley (1978).
First, Ballenger, an air quality engineer, is one of Lockheed’s rebuttal experts to Ranajit Sahu. Plaintiffs filed a motion to exclude his testimony, arguing essentially that Ballenger merely challenges the reliability of Sahu’s testimony rather than using reliable methodology of his own. But Ballenger’s opinions are admissible for the same reasons Sahu’s are: both sides disagree about the correctness of Sahu’s inputs on the air model and the accuracy of the emissions data provided by Lockheed, a classic clash of two qualified expert views the jury will have to weigh and decide.
Kristine Davies
Davies is another air quality engineer rebutting Sahu’s and other testimony. Plaintiffs filed a motion to exclude her testimony largely for the same reasons as Ballenger—and for the same reasons, her rebuttal testimony is largely admissible.
That said, the Court held that Davies’ report raises some red flags that can only be addressed fully in context at trial. As an expert, Davies may not testify that facts she was instructed to assume are true—she may only testify that she relied on certain facts as true in forming her conclusions.
To the extent that certain sections of her report purport to introduce fact testimony, she will not be allowed to give improper lay testimony about facts for which she lacks personal knowledge, nor will she be allowed to indiscriminately merge together fact and expert testimony.
If Davies did garner personal knowledge of information from Lockheed employees, that information (and the source of the information, including from whom and when it was received) either must have been fully disclosed in her report or must have been provided to Plaintiffs through discovery for her to be permitted to testify to those facts.
This trial will not devolve into a game of gotcha: the facts are the facts and they must be known to both sides, and the experts can then interpret them as they may. To the extent Plaintiffs are concerned that Davies’ opinions lack support or stray beyond the scope of her expertise, the Court held that they can cross her on those grounds or present contrary evidence.
But to the extent Davies begins giving improper undisclosed fact testimony, Plaintiffs should contemporaneously object and the Court will be on guard to limit it.
Rene Salazar
Plaintiffs later filed a motion to exclude his testimony because he criticized Plaintiffs’ experts for not performing real-time exposure monitoring—which he purportedly later acknowledged to be impossible.
The Court held that Salazar may properly point out what he perceives to be flaws in Sahu’s methodology; beyond that, holes in his own conclusions are material for Plaintiffs’ cross.
Stephen Emsbo-Mattingly
Plaintiffs filed a motion to exclude his testimony on several grounds. First, they complain about several issues with sampling data he took from a pilot study, arguing that he did not sample deep enough for subsurface soil and sampled from present day but extrapolated to historical conditions. But Emsbo-Mattingly sufficiently explained how he was using the current data to analyze historical emissions and why he sampled the way he did.
The Court held that Plaintiffs’ other arguments against Emsbo-Mattingly are similarly unpersuasive—they simply disagree with his presumptions and the premise of his study, but a dispute about the correctness of his conclusions does not make his methodology unreliable.
Dr. Shahrokh Rouhani
Plaintiffs filed a motion to exclude Rouhani’s testimony purportedly for unreliable methodology—focusing on their competing theory of the case pertaining to historical emissions—but again, the Court held that their attacks amount to nothing more than disagreement with his conclusions and the bases therefore rather than Daubert challenges.
Held
Plaintiffs’ Daubert motions to exclude Michael Ballenger, Kristine Davies, Dr. Rene Salazar, Stephen Emsbo-Mattingly, and Dr. Shahrokh Rouhani are denied.
Key Takeaway:
Expert testimony may be admitted only if: (1) the expert is qualified; (2) the methodology is reliable; and (3) the testimony is helpful. The proponent of the expert must establish the opinion is admissible, but need not prove it is correct.
The different experts in this case have different methods of trying to get at historical exposure data, and the perceived flaws in each approach are fodder for cross, not exclusion.
Please refer to the blog previously published about this case:
This case concerns use of the term “XHALE” in connection with identical retail smoke shop services, marketing through the same channels, to the same customer base, and in Hattiesburg, on the same street, resulting in rampant actual confusion. Plaintiff Green Rush, LLC, d/b/a Xhale City claims that its federal trademark registration for “XHALE CITY” not only grants it nationwide priority, but presumptively valid trademark rights.
Defendants hope that third-party use of the term “xhale” will be sufficient to cancel Plaintiff’s registration and negate likelihood of confusion.
Green Rush opened its Hattiesburg, Mississippi, location on March 18, 2022, at 6062 Highway 98 (a/k/a Hardy Street), Hattiesburg, Mississippi. Prior to that, in the fall of 2020, Xhale Smoke Shop Defendants opened their first location at 4400 Hardy Street, Suite B8, in Hattiesburg, Mississippi. Since that time, Xhale Smoke Shop Defendants have opened five other Xhale Smoke Shop stores in the towns of Columbia, Seminary, Ellisville, Sumrall, and Prentiss, Mississippi, all within a forty-mile radius of Hattiesburg. Both Plaintiff and Defendants sell smoking and vaping related products.
Defendants designated Dr. Katharine Howie, Ph.D., Assistant Professor of Marketing at the University of Southern Mississippi, as an expert in the field of branding and marketing. Green Rush argued that Howie is unqualified to offer testimony on the subject of trademarks, that she offers legal conclusions, and that her report is otherwise flawed in that her facts and methodology are unreliable.
Marketing Expert Witness
Katharine Howie, Ph.D., is an Assistant Professor of Marketing at the University of Southern Mississippi. Howie has worked in the field of business marketing, received her master’s and doctoral degrees in the field, taught a broad array of undergraduate and graduate courses on the subject, has prolifically published and presented in the field, and has conducted extensive research on brand activism, digital and social media marketing, as well as other related topics.
Katharine Howie explored the potential legal protection for the term “xhale” in the smoking and vaping industry. After conducting a review of trademark records, business listings, and Google and social media search data, Howie concluded that “xhale” is not a “source signifier” and that a “plethora of other companies within the vaping industry use this exact word and spelling in their operating name.”
Howie also examined search traffic on Google and determined that a large volume of consumers search specifically for “xhale,” but the majority do not navigate to “Xhale City,” whereas a “preponderance of Xhale City’s web traffic is derived from searchers explicitly searching for ‘xhale city’ either in isolation or with additional words.”
A. Dr. Howie’s Qualifications
Plaintiff argues that Howie’s CV does not indicate any expertise, training, or experience in determining consumer awareness of trademarks and, therefore, she is not qualified to make expert conclusions on such matters.
The Court finds that Howie’s relative inexperience in the field of trademark law does not preclude her from testifying in this case as an expert on marketing and branding. The Court held that Plaintiff’s concerns about Howie’s opinion testimony are best tested by vigorous cross-examination and presentation of contrary evidence.
Plaintiff also argued that Howie’s report presents improper legal opinion. The Court holds that an opinion is not objectionable just because it embraces an ultimate issue; however, an expert may never render conclusions of law. It is the Court’s job, not an expert witness’s, to instruct the jury as to the applicable law. To the extent that Howie’s report and proposed testimony may render conclusions of law, the Court held that it is inadmissible. However, she is free to testify about her experience in branding and marketing, the research supporting her report, any quantifiable conclusions she has reached, and the facts supporting her report and opinion, even if her opinion embraces an ultimate issue.
B. Data and Methodology
Plaintiff argued that Howie’s report is inadmissible because it is not based on sufficiently reliable facts or data that have evidentiary support, and fails to provide any methodology whatsoever.
The Court held that its gate-keeping obligation applies to all types of expert testimony, not just scientific testimony. Whether Daubert’s suggested indicia of reliability apply to any given testimony depends on the nature of the issue at hand, the witness’ particular expertise, and the subject of the testimony. It is a fact-specific inquiry. The Court’s responsibility is to ensure that an expert in the courtroom employs the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.
The Court concluded that Howie is qualified in the field of marketing and branding and that her testimony and report are reliable based on her experience and specialized knowledge in her field. In other words, her report is not so fundamentally unsupported that it cannot possibly help the jury. While Howie’s report is not extensive, it is straight-forward and to the point.
Held
The Plaintiff’s motion to exclude the testimony of marketing expert witness, Katharine Howie is granted in part and denied in part.
Key Takeaways:
Howie’s relative inexperience in the field of trademark law did not preclude her from testifying in this case as an expert on marketing and branding. While Howie’s report is not extensive, it is straight-forward and to the point. Howie’s approach, method, rationale, and the data gathered by her internet and other searches are plain and within the grasp of the Court, as they will be for a jury.
Case Details:
Case Caption:
Green Rush, Llc V. Xhale Tobacco & Hookah, Inc. Et Al
Docket Number:
2:23cv71
Court:
United States District Court for the Southern District of Mississippi, Eastern Division
Hamrit, a citizen of Algeria who lives in Washington, D.C., has been a Citibank customer with a personal checking and savings account since July 2019. In early May 2020, Hamrit’s relationship manager at Citibank, Jim Riutta, encouraged Hamrit to join the Citi Personal Wealth Management (“CPWM”) program.
He alleged that, while monitoring the trading activity for AERC stock, “a malfunction occurred on the brokerage account function of the Citibank App resulting in a ‘buy’ order of 7650 shares of AERC being wrongly executed at the purchase price of USD51.39 per share for a total purchase price of USD393133.50 excluding estimated commissions of USD2.95.” Hamrit maintains that he never confirmed this transaction, yet “[t]he Citibank App automatically swept the funds for this transaction from [his] personal accounts” without his authorization or approval.
The narrow issue to be determined by the Court is whether Plaintiff opened the online brokerage account which is the subject of the hearing (the “C29 Account”), and in doing so agreed to the unambiguous arbitration provision (the “Arbitration Agreement”) in the Account Application and Client Agreement (the “Client Agreement”).
Defendants Citigroup Global Markets, Inc., Citi Personal Wealth Management, and Citigroup, Inc. (collectively, “Citigroup”) filed a motion in limine to exclude the proffered expert testimony of Larry F. Stewart.
Forensic Science Expert Witness
Larry F. Stewart is a forensic scientist that specializes in chemistry and document security. He has earned an Associate of Arts degree from Florida Technological University in Orlando, a Bachelor of Science in Forensic Science degree from the University of Central Florida, also in Orlando and a Master of Forensic Sciences degree from Antioch University in Yellow Springs, Ohio. Also, Stewart has worked for the U.S. Government as a scientist and manager for over 25 years and in private practice for over 17 years.
Hamrit sought to offer expert conclusions from Larry F. Stewart that fall into two buckets. First, Stewart testified that the security standards Citigroup employed did not align with those of the National Institute of Standards and Technology (“NIST”) for high value transactions. Second, Stewart concluded that Citigroup’s system did not truly verify Hamrit’s identity given discrepancies in the account opening documentation.
Citigroup argued that Stewart is not qualified to offer an opinion regarding the financial technology matters relevant to whether Hamrit electronically executed the arbitration agreement, and also contended that Stewart’s testimony would not be helpful to the trier of fact as his opinions did not stem from any specialized expertise but instead merely convey lay observations.
Qualifications
The parties disagree on whether Stewart’s experiences qualify him to offer an expert opinion on the narrow issue of the trial: whether Hamrit electronically executed an arbitration agreement with Citigroup when his online brokerage account was opened.
Citigroup contended that Stewart is not qualified to offer an expert opinion concerning whether Hamrit electronically executed an arbitration agreement because he “has no demonstrated expertise in cybersecurity, financial technology, opening of online accounts, or computer science generally.”
A key piece of evidence in this case is a document called a ThreatMetrix report. One of Citigroup’s witnesses at trial, a Citigroup fraud risk officer named Eustacio Valfre, explained that this report captures “[e]ach digital session” that a client has on Citigroup’s online platform and that the report “has a bunch of different data points that [Citigroup’s fraud officers] review” when assessing fraud risk.
The Court held that Stewart plainly is not qualified to offer an expert opinion regarding the ThreatMetrix report. During voir dire, Stewart testified that he has never received any training concerning ThreatMetrix, has never offered an opinion concerning ThreatMetrix, and has never drafted a report concerning ThreatMetrix.
Relevance and Reliability
There are multiple instances of Stewart basing his testimony on insufficient or incomplete information to draw conclusions regarding the authenticity of the records at issue.
To begin with, the Court requires no expertise, for example, to observe that Hamrit’s “residential address at the date of the Account Application and Client Agreement was different from the residential address stated therein,” that Hamrit’s “immigration status is different from that stated in the Account Application and Client Agreement,” or that a document has “different fonts,” contains a “blurred image,” or lacks a signature. These are simply lay observations concerning the contents of two documents, which in no way rely on Stewart’s purported expertise in document security.
Stewart’s purported opinion that Citigroup did not verify Hamrit’s identity because there were discrepancies in the account opening documentation, therefore, does not rely on any expertise but is drawn from lay matters that the Court is “capable of understanding and deciding without the expert’s help.’”
Stewart’s proffered conclusion that Citigroup’s security standards were insufficient relied on a fundamentally flawed premise as he assumed the absence of biometric authentication. Stewart testified that Hamrit’s purported account-opening transaction did not comply with the standards of the NIST for large dollar transactions. Yet, the undisputed evidence at trial established that Hamrit’s account had in place biometric identification for access and that such access was indeed used when his online brokerage account was opened.
Held
The Court granted the Defendants’ motion in limine to exclude the proffered expert testimony of Larry F. Stewart.
Key Takeaways:
Stewart’s failure to base his conclusions on complete and accurate information severely diminishes any probative value of his testimony. And in particular, Stewart’s flawed assumption that biometric access was not in place when Hamrit’s online brokerage account was opened, in the face of overwhelming and undisputed evidence to the contrary, renders his conclusion about whether Citigroup met the NIST’s standards devoid of any probative value and require exclusion of that conclusion.
Stewart’s purported expertise in “document security” was devoid of any knowledge or training that would allow him to opine on the probative value of the information in a technical product like the ThreatMetrix report that captures a variety of pieces of digital evidence and requires specialized training to properly understand and interpret.
This matter stems from a motor vehicle accident that occurred on May 21, 2023 when the vehicle driven by Plaintiff, Juwan Brown, and occupied by his parents, Clarence and Tawanna Brown, was struck by a commercial vehicle driven by Dashawn Brooks.
The commercial vehicle was owned by Penske Truck Leasing Co. and leased by Defendant Mayflower Laundry & Linen. As a result of the accident, Plaintiffs have alleged that they have sustained various injuries and damages.
The Defendant retained Yvonne Dailey “to coordinate an analysis of the billing and reimbursement dates for services provided to [Plaintiffs] due to” the motor vehicle accident at issue in this case.
In her report, Dailey compared the amounts charged for Plaintiffs’ medical care arising from the accident with the amounts permitted by the fee schedules under the New Jersey Personal Injury Protection (“NJ PIP”) fee schedule and Pennsylvania’s “Act 6” schedule. However, Dailey’s analysis did not include the amounts that were actually paid for the services.
Plaintiffs challenged the reliability, relevance, and fit of Dailey’s opinion, asserting that her testimony should be precluded under Federal Rule of Evidence 403. Plaintiffs argued that the charges reflected in Dailey’s report “have already been reconciled with Plaintiffs’ health insurers [and] will be presented to the jury in the form of liens which will be sanitarily presented in compliance with the collateral source rule.
Medical Billing Expert Witness
Yvonne Dailey has over 20 years of experience in the medical billing and coding field. As a Certified Professional Coder (CPC) and Certified Professional Biller (CPB), she helps clients understand the importance of accurate coding and documentation in the reimbursement process.
Her specialties include Infectious Disease, Family Practice, Endocrinology, Interventional Radiology, Internal Medicine, OB-Gyn, Chiropractic, Mental Health, Podiatry, Substance Abuse, Oncology, Hematology, Ophthalmology, Dental (medical side), and Orthopedics.
The defense expert created spreadsheets identifying the charges from Plaintiffs’ medical providers, and opining as to the allowable amounts under NJ PIP and Act 6 for each charge. However, as Plaintiffs pointed out, Plaintiffs’ health and auto insurers have already paid for the treatment which Dailey analyzed.
Under Pennsylvania law, “if the exact amount of [past medical] damages has been decided, or payment has been made and accepted in full, the Plaintiff’s recovery is limited to that amount and there is no issue for the factfinder to determine.”
Plaintiffs asserted that Dailey’s report reviews the amounts previously billed which have already been paid and Defendants did not dispute this characterization. Because the measure of damages for past medical damages is the amount accepted by the provider as payment in full and that amount is readily available, the Court concluded that Dailey’s analysis is not relevant to any issue the jury must decide and would not aid the jury.
Held
The Court granted the Plaintiffs’ motion to preclude the testimony of Yvonne Dailey.
Key Takeaways
Under Pennsylvania law, “if the exact amount of [past medical] damages has been decided, or payment has been made and accepted in full, the Plaintiff’s recovery is limited to that amount and there is no issue for the factfinder to determine.”
Because the measure of damages for past medical damages is the amount accepted by the provider as payment in full and that amount is readily available, the Court concluded that Dailey’s analysis is not relevant to any issue the jury must decide and would not aid the jury. Therefore, Dailey’s analysis was precluded.
Please refer to the blog previously published about this case:
Plaintiff Utah Physicians for a Healthy Environment’s (“UPHE”) alleged a number of Clean Air Act (“CAA”) and Noise Control Act (“NCA”) violations against Defendants, who are motorcycle dealerships and their owner. At summary judgment, UPHE proffered the expert testimony of Dr. Michael St. Denis. In relevant part, St. Denis opined that a “test motorcycle” purchased by UPHE for this litigation was not in compliance with the CAA’s emissions standards. However, during the air-emissions testing, background levels of hydrocarbons exceeded the federal limit authorized for such testing. Both St. Denis and the testing center admitted that the testing would have been invalid for EPA purposes. However, the testing center stated in an email that the testing data could be used for “development/comparison purposes,” though it did not explain why. Defendants moved to exclude St. Denis’ opinion related to the test motorcycle under Rule 702.
The Court granted this portion of Defendants’ motion to exclude. In particular, the Court found that UPHE had failed to show that St. Denis’s opinion reflected a reliable application of reliable principles and methods under Federal Rule of Evidence 702(d). The Court reasoned that “[b]oth St. Denis and [the testing center] admitted that the test results were invalid for EPA purposes given that the background levels of hydrocarbons exceeded 5 parts per million.” The Court then observed that “UPHE has not attempted to explain how high background levels of hydrocarbons would affect a test result, nor has it explained why the testing would be valid for comparison purposes.”
UPHE filed a motion for clarification regarding the Court’s order granting Defendants Harley-Davidson of Salt Lake City, LLC, Northern Utah Power Sports, LLC, and Joseph Timmons, Jr.’s (collectively “Defendants”) motion to exclude a portion of an expert opinion offered by Dr. Michael St. Denis.
Motion for Clarification
UPHE argued that St. Denis explained both issues in his expert report. After noting that the initial test result had high background levels of hydrocarbons, in paragraph 33 of his report, St. Denis wrote:
Elevated levels of [hydrocarbons] in the test cell have two results: 1) the concentration of [hydrocarbons] in the exhaust measured by exhaust analyzers and attributed to combustion is under-reported, and 2) the high level of [hydrocarbons] in the background air is subtracted from the level of [hydrocarbons] measured in the exhaust and artificially lowers the calculated level of emission of [hydrocarbons] from the vehicle. For these reasons, the concentration of [hydrocarbons] in the exhaust of the Test Motorcycle was under-reported. In other words, if the Test Motorcycle did not have an exhaust leak its measured [hydrocarbon] emissions would be greater.
Next, in paragraph 34, he opined that “[e]ven with the exhaust leak, the emissions of [hydrocarbons plus nitrogen oxides] in the first test were 1.49 g/km, far exceeding the vehicle’s certified level of 0.5 g/km, and the federal standard of 0.8 g/km.” UPHE pointed to the former as evidence that St. Denis did explain how high background levels of hydrocarbons would affect a test result, and to the latter as evidence that St. Denis explained why the tests were valid for comparison purposes.
Although Defendants attached St. Denis’ expert report to their Motion to Exclude, UPHE did not cite the report in its argument, let alone these particular paragraphs. Nor did UPHE respond to several of Defendants’ arguments on why St. Denis’ air emissions opinions are unreliable.
Environmental Science Expert Witness
Michael St. Denis holds a Doctorate in Environmental Science and Engineering from UCLA, a Master of Science degree in Physical Chemistry, and a Bachelor of Science degree in Chemistry. His doctoral studies were focused on reduction of air pollution and air quality impacts of various pollutants from differing sources of pollution. He has taken classes in air pollution control, air pollution dispersion modeling, human health impacts of pollutants and risk assessment focused on environmental pollutants. He performed air pollution modeling and worked on air quality impact and improvement plans.
Although it is titled a motion for clarification, the Court noted that it more closely resembles a motion for reconsideration, particularly given that UPHE states in its Reply (for the first time) that it relies on Federal Rule of Civil Procedure 54(b).
Under Federal Rule of Civil Procedure 54(b), an interlocutory decision can be “revised at any time before the entry of a final judgment adjudicating all the claims.” The Court “is not bound by the strict standards for altering or amending a judgment under Federal Rules of Civil Procedure 59(e) and 60(b),” but the basic assessment for reconsideration remains the same. The Court may grant reconsideration based on the availability of new evidence, an intervening change in the controlling law, or the need to correct clear error or prevent manifest injustice. In other words, it is only appropriate in “extraordinary circumstances” when “the Court has misapprehended the facts, a party’s position, or the controlling law.”
Analysis
UPHE does not state which ground for reconsideration could apply. Nonetheless, it is clear that there is no new evidence or change in controlling law, nor was there clear error. Therefore, the only potential ground for reconsideration would be to prevent manifest injustice.
The Court first notes that a motion for reconsideration is improper when used to “revisit issues already addressed or advance arguments that could have been raised in prior briefing.” As such, the Court could deny the motion for failing to cite the pertinent paragraphs of St. Denis’s report or otherwise argue these issues in its briefing. After all, “[p]arties should make all arguments accessible to the Court, ‘rather than ask [the Court] to play archaeologist with the record.’” Yet, it is also true that St. Denis’s report was in the record, was relatively short—spanning just 16 pages—and at least briefly discussed the subject at issue. Moreover, Defendants attached the report as an exhibit to their motion to exclude, and Defendants cannot argue they were unaware of the report’s assertions.
Accordingly, if it were a simple matter of one missing citation, the Court might be inclined to reconsider its holding. But the deficiency here is more than that. UPHE bears the burden of demonstrating that its proffered expert’s opinions meet the Rule 702 standard. Here, UPHE failed to adequately show that these particular opinions reflect a reliable application of reliable principles and methods.
UPHE bears the burden to show it is more likely than not that St. Denis’s opinions reflect a reliable application of reliable principles and methods
Assuming without deciding that (i) the method of subtracting background hydrocarbons from the hydrocarbons measured in the exhaust is reliable generally and (ii) a test with background levels of hydrocarbons exceeding 5 parts per million is not necessarily invalid for comparison purposes, these statements are still not fully responsive to Defendants’ reliability arguments in their Motion to Exclude. For example, Defendants point out that St. Denis initially calculated emissions based on four tests (three of which were included in the average), then updated the chart to reflect eight tests, excluded some of these tests based on incorrect data, and revised total emissions downwards by more than ten percent. Of these eight attempted emissions tests, the average background hydrocarbon concentration varied widely, ranging from 5.46 ppm to 17.89 ppm.
Further, Defendants argued that the testing was invalid because SGS Environmental Testing Center in Columbus, Indiana (“SGS”) collected data from the motorcycle after it had been driven for about 100 miles, instead of after its break-in period of 4,000 miles used for initial compliance emissions testing. Defendants also argued that the comparison is not reliable because the motorcycle was not in the same condition as it was when it left Defendants’ custody. Specifically, SGS partially disassembled the motorcycle to weld the exhaust system from the inside to fix the exhaust leak and clamped aluminum foil over the muffler and exhaust pipe. SGS itself stated that it “remain[ed] concerned about the modifications and the mileage on the vehicle for what [St. Denis] want[ed] to do with the results.”
Motions for Reconsideration Are Generally Not Proper to “Advance Arguments that could have been raised in Prior Briefing”
St. Denis does not address these concerns in his report, and UPHE did not respond to these arguments in its briefing. UPHE bears the burden to show it is more likely than not that St. Denis’s opinions reflect a reliable application of reliable principles and methods. By failing to respond to these arguments, UPHE did not meet that burden. As such, the Court cannot conclude that St. Denis’s excluded opinions are reliable even given the brief discussion in paragraphs 33 and 34 of his report. And as the Court noted earlier, motions for reconsideration are generally not proper to “advance arguments that could have been raised in prior briefing.” In short, the excluded opinions might be reliable, but UPHE, the proponent of this evidence, failed to show that they are.
Held
The Court denied UPHE’s motion for clarification.
Key Takeaway:
UPHE bears the burden to show it is more likely than not that St. Denis’s opinions reflect a reliable application of reliable principles and methods. By failing to respond to Defendants’ reliability arguments in their motion to exclude, UPHE did not meet that burden. Basically, motions for reconsideration are generally not proper to “advance arguments that could have been raised in prior briefing.” In short, the excluded opinions might be reliable, but UPHE, the proponent of this evidence, failed to show that they are.
Case Details:
Case Caption:
Utah Physicians For A Healthy Environment V. Harley-Davidson Of Salt Lake City Et Al
Plaintiffs Iola Favell, Sue Zarnowski, Mariah Cummings, and Ahmad Murtada (“Plaintiffs”) alleged that Defendant University of Southern California (“USC”) engaged in a scheme to artificially inflate the U.S. News & World Report (“US News”) ranking of USC’s Rossier School of Education (“USC Rossier”) by submitting incomplete data to US News — and then marketed that fraudulent ranking to the public.
An internal investigation conducted by USC’s outside counsel, Jones Day, determined that USC had submitted student selectivity data only for USC Rossier’s highly selective, in-person PhD program — but not from its less-competitive EdD program. The less-competitive EdD program was offered online after 2015 in collaboration with 2U, a company that offers technology platforms for online programs and provides advertising and recruiting for those online programs.
Plaintiffs alleged that USC, knowing the importance of the rankings on prospective students’ school choice, heavily marketed USC Rossier’s rapidly rising ranking to the public to boost enrollment in the online programs. USC orchestrated this scheme, Plaintiffs alleged, through its submission of false/incomplete data and then promoted the resulting ranking knowing that it was misleading.
Dr. John Chandler is a professor of marketing at the University of Montana who holds a master’s degree in mathematics and a doctorate in statistics and has worked in analytics and data science for 25 years with a focus on digital marketing.
Sara Neher is a partner at Kennedy & Company Higher Education Strategies, a higher education consulting firm. She has an MBA and has worked in higher education for more than twenty years, including academic leadership positions at two business schools. Neher has experience consulting higher education clients about their US News rankings, including constructing models like the one she submits in this case, and has also been part of the submission of data to US News for multiple schools.
J. Michael Dennis is the Senior Vice President of the National Opinion Research Center, which is a survey research organization affiliated with the University of Chicago. Dennis has worked in survey research for more than 20 years, has authored more than 60 articles, and has been found qualified by numerous courts to provide expert opinions on consumer surveys.
John Chandler submits a 95-page report explaining digital marketing practices in the context of student recruitment for graduate programs, the stages of a prospective student’s journey through the “marketing funnel,” what marketing strategies are typically deployed for student recruitment, and how USC Rossier applied these principles in its marketing strategy.
The first portion of Chandler’s report expresses extensive opinions on marketing practices, the enrollment journey, and the comprehensive marketing strategy that USC and 2U deployed to market USC Rossier. The second part of Chandler’s report discusses the exposure — i.e., the reach — of USC Rossier’s marketing materials containing the allegedly fraudulent ranking information. In the end, Chandler’s bottom line conclusion is: “Given the extensive and varied exposure methods outlined above, I can state with a reasonable degree of scientific certainty that all or nearly all students at USC Rossier in the MAT and OCL programs during the period of ranking manipulations were exposed to the fraudulent rankings. The pervasiveness of these rankings across multiple touchpoints ensured their near-universal reach.”
Reliability
USC did not challenge Chandler’s opinions on general marketing principles or the specifics of the extensive marketing strategy 2U and USC implemented with regard to USC Rossier. Instead, USC challenged the exposure/reach aspects of Chandler’s opinions. The crux of USC’s argument is that Chandler has no quantitative basis to opine that all or nearly all prospective students were exposed to fraudulent rankings through emails and/or other means.
USC further contended that Chandler did not have reliable site traffic data to substantiate an opinion that the vast majority of students visited the USC Rossier website and were exposed to a ranking representation.
The Court first observed that Chandler’s report extensively details the marketing strategy that USC and 2U deployed on behalf of USC Rossier, including specific opinions on how the marketing strategy was designed to move interested students through the marketing funnel from “awareness” to “enrollment.”
To arrive at his exposure conclusions, Chandler relied heavily on testimony from 2U’s 30(b)(6) representative, Dr. Joana Gerber. The Court has reviewed Gerber’s deposition transcript, as well the arguments both USC and Plaintiffs make about her testimony.
The Court agreed with Plaintiffs that the thrust of Gerber’s testimony and Chandler’s report is that 2U orchestrated an extensive marketing strategy designed to move all prospective students through the marketing funnel. It also agreed with Plaintiffs that Chandler’s opinions are the result of extensive review of record evidence, including Gerber’s testimony, and that USC’s placement of rankings on the USC Rossier website and in social media further supports his exposure conclusions.
Sara Neher
Sara Neher submitted a 13-page expert report explaining a model she constructed to project the US News ranking USC Rossier would have received if USC had submitted accurate data. US News publishes its methodology each year, including the relative weights of the various factors that underlay its rankings, with each school receiving an assigned rank based on its overall score on a 100-point scale.
Neher’s model standardizes the data in each category
Neher begins her reconstructed model with the data published by US News. First, Neher’s model standardizes the data in each category using z-scores, which are multiplied by the relative weights published by US News and added together to create a total for each school. Then, the total is indexed such that the top score always equals 100. The critical component — and the factor USC most vigorously challenges — is what Neher does to account for the information US News does not release. Neher acknowledged that she does not have access to information US News does not make publicly available, including the number of faculty with awards, the number of doctoral students who submitted a GRE score, the overall score for the lowest ranked 25% of schools, and the process for applying a logarithmic transformation to the student-faculty ratio.
Neher replaced the data USC Rossier actually submitted to US News with accurate data USC should have submitted
To account for this unavailable information, Neher calculated what she labels a “hidden-data constant” by comparing how much her model’s raw score (using the publicly available data) deviates from the school’s actual US News ranking. This, Neher reports, “captures the difference between what our model is able to calculate as the indexed score and what US News reports as the final score.” Then Neher replaced the data USC Rossier actually submitted to US News with accurate data USC should have submitted, based on an internal report from USC’s Director of Institutional Research who was instructed to investigate the matter. After generating a new overall score for USC Rossier using this information, Neher applies the hidden-data constant to account for the information she cannot recreate.
The result led to a dramatic decrease in USC Rossier’s ranking. Under Neher’s model, USC Rossier’s rank would have dropped from 15 to 48 in 2018; from 10 to 34 in 2019; from 12 to 61 in 2020; from 11 to 63 in 2021; and from 11 to 64 in 2022.
USC argued that Neher’s opinions regarding USC Rossier’s adjusted US News rankings must be excluded because they are the result of an unreliable methodology. Specifically, USC argued that the “hidden data constant” Neher calculates varies both school-to-school and year-to-year, resulting in a score that is sometimes close to US News’ ranking, but other times is dramatically far off. In other words, USC argued that there is no consistency to the hidden-data constant, so the methodology cannot be reliably used to predict adjusted scores based on different data input.
Qualifications
USC challenged Neher’s qualifications on the grounds that she does not have the training, experience, or specialized knowledge to qualify as an expert in statistical modeling. In addition, USC argued that she has never worked for or been trained by US News and has never before tried to replicate US News’s model; instead, she knows only what US News publicly discloses.
As USC sees it, absent insider knowledge about US News’s rankings, it is not possible to reliably replicate US News’ ranking at all — and any attempt to do so is “a pure guessing game.”
The Court declined USC’s invitation to announce a rule — especially in a discretionary evidentiary ruling — that the only way to reliably prove rankings fraud is to use (or, more likely, to misappropriate) insider knowledge of US News’s proprietary methodology. The Court is not convinced that any attempt to do so is necessarily a “pure guessing game” that categorially forecloses Neher’s proffered reconstructed rankings. This is especially true considering that Plaintiffs have identified other consulting firms and academic research that attempt to reconstruct US News rankings.
The Court held that Neher’s extensive experience working in higher education consulting constitutes a sufficient foundation to qualify her to offer her proffered opinions.
Reliability
The Court would begin by observing that neither Plaintiffs nor Neher purport to represent the proffered adjusted rankings model as a perfectly exact replication of the US News rankings. In addition, though USC did not challenge in its moving papers the result of Neher’s model — i.e., that USC Rossier’s ranking would experience a large decline — it indicated at the hearing that it does challenge Neher’s ultimate conclusion that rankings would have dropped.
For present purposes, the crux of USC’s challenge is how close Neher got in making a rankings prediction.
The Court also disagrees with USC that Neher’s methodology cannot be tested. Neher has described the methodology she deploys in her model in transparent and understandable terms, meaning USC and its experts can verify it, test it against different data, and/or critique the application of the hidden data constant.
USC does, however, point to numerous examples where the hidden data constant does not come close to replicating the school’s actual US News ranking, and that it also varied year-to-year. The question becomes, then, whether the inconsistencies with the outcome of Neher’s model compared to US News’s actual rankings are the result of unreliable methodology or instead go to the weight of the evidence. The Court notes that USC does not challenge Neher’s replication of the published aspects of US News’s methodology, only the methodological step of capturing the “hidden data constant.”
J. Michael Dennis
J. Michael Dennis submitted a 55-page report proposing two yet-to-be-conducted choice-based conjoint surveys that would estimate what USC Rossier’s tuition prices would have been but for USC’s alleged conduct. Dennis defines a choice-based conjoint survey as a “standard marketing research technique for quantifying consumer preferences for products and for the component features that make up a product. Conjoint analysis can be used to break down the value of a conceptual feature ( i.e., claims about the USC Rossier’s credentials) into its component parts (i.e., the claim that USC Rossier is a ‘top ranked’ program, or more specifically, that it was ranked between 10-15 by U.S. News & World Report in the 2017-2022 time period). Conjoint surveys take advantage of the fact that consumers are profoundly familiar with the task of shopping — comparing products, evaluating them, and making choices. Consumers are accustomed to making choices in their real-world shopping experiences.”
To calculate damages, Dennis explains:
“I define the but-for world as a world where the actual U.S. News rankings were in fact between 34 and 64 (corresponding to my fourth level of “30 to 59” for the “Rankings” attribute). In contrast, class members paid program costs when the advertised rankings were between 10 and 15 (i.e., corresponding to my second level of “10 to 19” for the “Rankings” attribute). If Plaintiffs’ allegations have merit, the market-clearing prices in the but-for worlds will be lower than the prices paid by class members.”
Reliability
USC first argued that Dennis’ opinions must be excluded because they rely on Neher’s inadmissible opinions. However, the Court would not exclude Neher’s opinions, thereby rendering this argument moot.
USC next argued that Dennis’ opinions must be excluded under Fed. R. Evid. 702(b) because they are based on insufficient facts or data.
USC argued that higher education does not operate in normal supply-and-demand conditions because of the impact of other economic incentives, including scholarships, fellowships, and grants. In addition, USC argued that universities address scarcity through selective admissions, not tuition price. USC’s argument, then, is that Dennis has no evidence justifying his assumption that the market value of an education from USC Rossier is anything other than what USC Rossier decides to charge.
Relatedly, USC also argued that Dennis has no evidence supporting his assumption that USC Rossier’s tuition responded to US News rankings. USC relies on a report from its expert witness to argue that there is no empirical analysis showing that tuition for EdD programs is affected by changes in school rankings.
This Court agrees that the real-world and market realities evidence upon which USC relies speak to the weight of Dennis’ analysis — which certainly could persuade a jury — but are not supportable reasons for excluding Dennis’ expert report and testimony.
Finally, the fact that Dennis’ survey has not been fully developed or implemented does not warrant exclusion at this juncture. There is no basis to exclude Dennis’ proposed conjoint survey. However, the Court will not preclude USC from bringing a later Daubert challenge to Dennis’ final report and testimony after his conjoint survey has been fully executed.
Held
The Court denied USC’s Daubert motions to exclude the expert report and testimony of Dr. John Chandler, Sara Neher, and Dr J. Michael Dennis.
Key Takeaways:
While Chandler is not able to offer at this juncture a quantifiable number of students exposed to fraudulent rankings — an issue that might make the specific contours of his testimony subject to a later motion in limine — the Court does not find too great of an analytical gap between the record evidence and his exposure opinions. The core of USC’s argument goes to the weight of Chandler’s opinion and the identified shakiness of Gerber’s testimony, but “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”
The fact remains that Plaintiffs intend to use Neher’s model to show how consumers would react to USC Rossier’s adjusted rankings range, as compared to being a top-ranked school. With this in mind, the argument USC makes about the exact precision of Neher’s estimation cannot carry the weight that USC places upon it. But to be sure, USC has identified several weaknesses of Neher’s model which can be subject to “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” The Court cannot and will not consider whether Neher’s model is right or wrong; it is satisfied at this juncture that Neher transparently and thoroughly explained her methodology in a way that can be tested and cross-examined. The Court is therefore not convinced that Neher’s model is the product of such unreliable methodology as to fail Daubert‘s gatekeeping standard.
The Court noted that Dennis extensively details the structure of his survey and has considerable experience executing similar surveys. And as just examined, the Court is satisfied at this juncture that Dennis is qualified and has proposed a reliable methodology. Accordingly, there is no basis to exclude Dennis’ proposed conjoint survey.
Case Details:
Case Caption:
Iola Favell Et Al V. University Of Southern California Et Al
This matter involves an incident that occurred on May 29, 2020. At the time, the Plaintiff, David Zuniga, was present during the George Floyd protests in Grand Park, Downtown Los Angeles. Plaintiff and his experts contended that Defendant Officer Aaron Green struck him with a nonlethal projectile to his head. Officer Green, along with the other named officer Defendants, was assisting in controlling a crowd of protestors. The protestors unlawfully protested in the Grand Park area after the Court declared an unlawful assembly and issued a dispersal order.
Defendants filed a motion to preclude the report and opinions of Plaintiffs’ biomechanics expert, John Gardiner, on the grounds that such evidence is irrelevant, improper, misstates the law, speculative, and would unduly prejudice Defendants.
Plaintiff opposes Defendants’ motion on the grounds that Gardiner’s opinions are based on the sworn testimony of Plaintiff and several Defendants. Additionally, Gardiner relied on video from body cameras and medical records. Plaintiff also argues that Gardiner is qualified to opine on the cause of Plaintiff’s injury because he is a biomechanics expert that has testified in other cases.
Biomechanics Expert Witness
John Gardiner holds a Doctor of Philosophy in Bioengineering from the University of Utah and a Bachelor of Science in mechanical engineering from the University of Minnesota. He is a principal and senior biomechanical engineer at MEA Forensic. He joined the firm in 2002 and leads the Biomechanics Group in the Los Angeles office. Gardiner is responsible for conducting reconstruction and biomechanical analyses of a variety of events including automobile collisions, falls, sports injuries, and shootings.
The video evidence and testimony are consistent with Zuniga being located within a group of protestors on N Spring St. at the time he sustained this injury.
The video evidence and testimony indicate that multiple less-lethal rounds were fired in the general direction of Zuniga’s location north of the officers.
The horizontal nature of the laceration on the top of Zuniga’s head is consistent with contact from an approximately horizontally traveling less-lethal munition.
The description and appearance of Zuniga’s scalp laceration is consistent with contact by a bean bag round fired by Officer Green.
In forming his conclusions, Gardiner reviewed various materials. Specifically, these included body camera video, testimony, and medical records, all of which he analyzed in detail. As a result, his opinions were supported by the evidence available to him, as established in previous rulings.
The Defendants contended that Gardiner’s opinions were based on factual assumptions not supported by the record. They highlighted that, in his deposition, Gardiner admitted he could not specifically identify the Plaintiff in the video at the time of the shooting. Furthermore, he acknowledged that the Plaintiff might have moved from his last known location in the video before the less-lethal munitions were fired. However, the Plaintiff noted that Gardiner did not need to present his opinions with absolute certainty for his testimony to be admissible.
Held
The Court denied Defendants’ motion to exclude Plaintiffs’ biomechanics expert, John Gardiner’s opinions and testimony at trial.
Key Takeaways:
Gardiner has an extensive background and experience in biomechanics. This qualifies him to testify regarding the cause of the Plaintiff’s injury.
No part of Gardiner’s expert report indicated that any of his opinions are based on assumptions outside of the evidence provided. This includes body camera footage and medical records.
Gardiner’s opinion regarding the horizontal nature of the laceration and its consistency with less-lethal munitions is not a legal conclusion. It is an expert analysis of the injury’s cause.
Please refer to the blog previously published about this case:
In 2007, SCANA received legislative approval to construct two nuclear reactors at the V.C. Summer Nuclear Generating Station in Fairfield County, South Carolina” (the “Nuclear Project”). Deloitte served as SCANA’s external auditor for over 70 years. International Brotherhood of Electrical Workers Local 98 Pension Fund alleges that, “[t]hroughout the Class Period, Deloitte repeatedly violated its professional responsibilities, failed in its role of gatekeeper and deceived investors about SCANA’s accounting for, and expected completion of” the Nuclear Project.
Deloitte allegedly “gave unqualified, ‘clean’ audit reports on SCANA’s financial statements and internal control over financial reporting, misleading investors into believing that SCANA would complete the Nuclear Project in time to obtain $1.4 billion in nuclear tax credits[,] despite voluminous evidence that SCANA could not possibly achieve this goal.”
The Consolidated Complaint alleged that SCANA, its investors, government regulators, and Deloitte understood that the success of the Nuclear Project depended on SCANA obtaining $1.4 billion in federal production tax credits and being able to raise energy rates on consumers to cover construction costs.
Plaintiff International Brotherhood of Electrical Workers Local 98 Pension Fund filed a motion for class certification, appointment of class representative, and appointment of class counsel (the “Class Certification Motion”) while Deloitte filed a motion to exclude the damages-related opinion offered in Dr. Matthew D. Cain’s expert report.
Economics Expert Witness
Matthew D. Cain is a Ph.D in Finance, a Senior Fellow at the Berkeley Center for Law and Business, and a Senior Visiting Scholar at Berkeley Law School, University of California. He teaches courses, delivers guest lectures, participates in academic seminars, and conducts research in various topic areas related to finance, economics, accounting, law, and business.
His research is focused on topics including empirical corporate finance, corporate governance, board independence, mergers and acquisitions, hostile takeovers, shareholder lawsuits, negotiations, financial contracting, disclosures of financial information, and shareholder activism. Cain worked at the SEC between 2014 and 2018 as a Financial Economist. Before working at the SEC, he was an Assistant Professor of Finance at the University of Notre Dame. Cain has also published research in leading peer-reviewed finance, accounting, law, and economics journals.
Deloitte did not challenge Cain’s qualifications, and the Court concluded that Cain is qualified to opine on the matters discussed in his reports.
Based on his analysis, Cain “formed the opinions that the market for shares of SCANA’s Common Stock was efficient during the Class Period” and that “damages in this matter can be calculated on a class-wide basis subject to a common methodology.” Deloitte challenged only Cain’s opinion regarding damages and, thus, the Court limited its discussion to Cain’s damages-related opinion.
Cain’s first report, dated April 30, 2021 (the “First Report”), explained that “[t]he ‘out-of-pocket’ method of calculating damages represents a standard and well-accepted methodology under Section 10(b) of the Exchange Act” and that the “approach calculates damages formulaically as the artificial inflation in the share price at the time of purchase minus the artificial inflation in the share price at the time of sale.”
Deloitte challenged Cain’s damages-related opinion on two bases. First, Deloitte argued that IBEW asserted two damages theories––a materialization of risk theory and a corrective disclosure theory––but that Cain’s report ignored the materialization of risk theory.
Deloitte’s Challenge Regarding the Materialization of Risk Theory
Deloitte contended that Cain’s report appears to be referencing corrective disclosures rather than risk.
However, as the Fourth Circuit has explained, “the ultimate loss causation inquiry under either the corrective disclosure theory or the materialization of a concealed risk theory is the same: whether a misstatement or omission concealed something from the market that, when disclosed, negatively affected the value of the security.”
The First Report stated that Cain will use the out-of-pocket method for calculating damages on a class-wide basis. The out-of-pocket method calculates the difference between the price at which the stock sold and the price at which the stock would have sold absent any artificial inflation cause by a Defendant’s alleged misrepresentations or omissions.
Accordingly, the Court concluded that Cain has offered a reliable damages model consistent with IBEW’s liability case and has demonstrated that IBEW’s damages are attributable to that theory of liability.
Deloitte’s Challenge Regarding Damages Attributable Only to Deloitte
Deloitte next argued that Cain failed to identify or offer a “methodology by which damages attributable to SCANA, its officers, or others could be separated from damages attributable to Deloitte.” However, at the class certification stage in a securities fraud class action, a methodology is not required “to make an allowance for any damages caused by things other than the Defendants’ alleged fraud.”
Moreover, Cain has explained that “event studies are widely-employed to calculate artificial inflation [and] measure stock price reactions to corrective disclosures which reveal the relevant truth that was concealed by alleged material omissions and/or misrepresentations.”
Additionally, Cain opined, “to the extent that reliable evidence is introduced to show that a material portion of the difference in the artificial inflation between the purchase and sale of the securities may be attributed to non-fraud related factors, the impact of such ‘confounding information’ on the price of SCANA securities can be determined on a common, classwide basis using various accepted methodologies.” Accordingly, the Court concluded that Cain’s damages-related opinion should not be excluded.
Held
The Court denied Deloitte’s motion to exclude damages-related expert opinion of Dr. Matthew D. Cain.
The Court granted IBEW’s motion for class certification, appointment of class representative, and appointment of class counsel.
Key Takeaways:
Cain’s damages-related opinion were admissible because Cain has offered a reliable damages model consistent with IBEW’s liability case and has demonstrated that IBEW’s damages are attributable to that theory of liability.
Moreover, at the class certification stage in a securities fraud class action, a methodology is not required “to make an allowance for any damages caused by things other than the Defendants’ alleged fraud.”
Case Details:
Case Caption:
International Brotherhood Of Electrical Workers Local 98 Pension Fund V. Deloitte & Touche Llp Et Al
This is a products liability case involving an articulating (i.e., multi-position) ladder manufactured by Little Giant Ladder Systems, LLC. On November 10, 2021, Jason Adams fell from a Little Giant ladder and suffered injuries. Adams asserted that he was using the ladder in the usual and ordinary manner when the rung on which he stood separated from the rest of the ladder. He testified that he inspects all ladders, he never dropped the subject ladder, and the subject ladder never fell from anything.
Defendant moved to exclude the testimony of Plaintiffs’ expert, David Kassekert, P.E., on the grounds that he is unqualified and his opinions are unreliable. Kassekert intended to testify that a rung on the Plaintiff’s ladder failed when it separated from the side of the ladder because the welded connection did not penetrate the metal of the rung to which it was being welded, which resulted in a fatigue crack in the rung material.
Plaintiffs moved to exclude the testimony of the Defendant’s expert, Dr. Ellen Wright, P.E., because her testimony does not comport with the facts of this case. Wright examined the subject ladder and performed destructive testing. Plaintiffs did not contest that she is a qualified expert who used reliable scientific methods. Instead, they challenge how she applied her analysis to the facts of the case. Wright intended to testify that the failure of the ladder at issue in this case was the result of a high loading event which overstressed the ladder aluminum, resulting in the detachment of the rung from the side of the ladder.
Mechanical Engineering Expert Witness
David Kassekert specializes in automotive and transportation accident reconstruction and product liability issues, including accidents involving various types of industrial equipment. He has provided technical consultations, investigations, research, analysis, reports and testimony in nearly 1000 cases in more than 18 years of forensic engineering work. Kassekert has been admitted as an expert in courts in seven states, six Federal Districts, 18 Pennsylvania Counties, and the OSHA Administrative Court system. He has testified for both the Plaintiff and Defense over 250 times.
Ellen Wright is a Senior Consultant with ESi and a licensed professional engineer in Metallurgical and Materials Engineering. Wright specializes in failure analysis and prevention, fractography, and characterization of materials. Wright has experience with many modes of failure and forms of material degradation, such as fatigue, fracture, corrosion, wear, creep, distortion, and weld failures. She has conducted investigations involving a diverse array of products across many industries, such as manufacturing, transportation (aviation and aerospace, rail, maritime, and automotive), power generation, chemical processing, medical device, and construction.
The Court held that Kassekert’s opinion in this case is based entirely on “visual examination and photography.” Physical testing is not always required. Basically, Kassekert is not qualified to offer an opinion based on a visual inspection of the ladder because Kassekert has not offered any prior experience in comparing welds, failed or not, and much of his experience with welds is in an amateur context.
Kassekert’s mechanical engineering education and work experience as a professional engineer do not qualify him to comment on every kind of engineering. In his deposition, Kassekert acknowledged that metallurgical engineering was a distinct discipline from his own. Although Kassekert has specialized experience in mechanical engineering, particularly in the automotive industry, he does not have experience in metallurgical science sufficient to assist jurors in deciding whether the ladder collapsed due to an insufficient weld. The Court need not reach the reliability of Kassekert’s methods because he is not qualified based on knowledge, skill, experience, training, or education.
Ellen Wright
The parties agreed that Wright is a qualified expert in the area of metallurgical engineering who used reliable scientific methods. Plaintiffs sought to exclude her testimony because her opinion—that there was a sudden high loading event which overstressed the ladder aluminum—was not supported by the factual record. They emphasized that Adams testified he used the ladder in an ordinary manner.
Plaintiffs focused on the final prong of Rule 702 of the Federal Rules of Evidence: “(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” Plaintiffs point to other courts’ descriptions of 702(d) as requiring the opinion “fit” the facts of the case.”
Adams pointed to other courts’ descriptions of 702(d) as requiring the opinion “fit” the facts of the case. The Court held that Plaintiffs misunderstand this case. The issue of “fit” concerns whether the expert opinion as applied to the facts of the case is scientifically valid. Put differently, Wright’s analysis of failure in aluminum material would not fit the facts of this case if the subject ladder was made of plastic. Plaintiffs’ 702(d) argument misses the mark.
Adams also argued that they are not required to exclude alternative causes for the malfunction of the ladder. Indeed, West Virginia law “does not require a Plaintiff, to succeed at the summary judgment stage, to conclusively eliminate all possible contributing causes other than a defect for an accident. This does not mean that the Court must exclude evidence of another possible cause for an accident because it conflicts with Plaintiffs’ theory of the case.
Held
The Court granted Defendants’ motion to exclude the testimony of the Plaintiff’s expert,David Kassekert.
The Court denied Plaintiffs’ motion to exclude the testimony of the Defendant’s expert, Dr. Ellen Wright.
Key Takeaways:
Kassekert does not have experience in metallurgical science sufficient to assist jurors in deciding whether the ladder collapsed due to an insufficient weld.
Wright’s analysis of failure in aluminum material was supported by the factual record.
Case Details:
Case Caption:
Adams Et Al V. Little Giant Ladder Systems, Llc
Docket Number:
3:22cv460
Court:
United States District Court, West Virginia Southern
This matter stems from an incident which constituted an officer-involved shooting (sometimes referred to as “OIS”). On January 15, 2019, Defendant Oliver Simmonds was an Atlanta Police Department (“APD”) Officer operating in a plain clothes capacity as a member of the Department’s Executive Protection Unit (“EPU”). Simmonds was driving an unmarked APD vehicle. Simmonds stopped to get fuel at a gas station located at 490 Whitehall Street in downtown Atlanta.
While pumping gas Simmonds left the door unlocked. Simmonds left the smart key in the vehicle, which permits it to be started, if not already running, and driven. Plaintiffs’ son, D’Ettrick Griffin, got into the vehicle and started to drive away in an apparent attempt to steal it; Simmonds grabbed the door handle, D’Ettrick yelled something to Simmonds; and Simmonds did not say anything to D’Ettrick.
Simmonds chased after the car, drew a pistol that he was carrying in the waistband of his pants, and fired twice striking D’Ettrick in the back once and killing him. D’Ettrick was not armed, though the Parties dispute whether Simmonds actually knew this; Simmonds told responding officers at the scene that D’Ettrick had a gun.
The City filed a motion to exclude Plaintiffs’ crime scene reconstruction expert, Scott Roder while Plaintiff filed a motion to exclude the testimony of Ken Katsaris.
Crime Scene Reconstruction ExpertWitness
Scott G. Roder has consulted on over 1,000 cases in the united states and internationally and has been qualified numerous times as as expert in the field of forensic evidence analysis, shooting and crime scene reconstruction and forensic animation. His work involves a variety of matters including; officer involved shootings, edged weapons, suicide investigations, strangulations and hangings, medical and surgical reconstructions, motor vehicle accidents, workplace injuries, criminal matters involving the death penalty, police pursuits, personal injury litigation, and more.
1. Based on the physical and forensic evidence and to a reasonable degree of scientific probability, the deceased was shot after he completed his left turn and was on the straight away.
2. Based on the physical and forensic evidence and to a reasonable degree of scientific probability, its in NOT likely that Officer Simmonds shot Griffin whilst in the left U-turn maneuver. If this had in fact been the case, we would expect that Griffin would not be able to complete the turn and manipulate the vehicle to come straight and accelerate the distance of approx. 330 + feet before the vehicle impact with other cars and coming to a stop.
3. Based on the physical and forensic evidence and to a reasonable degree of scientific probability, the gunshot wound that Griffin sustained is consistent with a forward seated orientation.
4. Based on the physical and forensic evidence and to a reasonable degree of scientific probability, if the gunshot wound occurred during the left U-turn maneuver, we would expect a different body position for Griffin, namely leaned over towards the front passenger seat. The forces at work; centrifugal, momentum, and the gunshot wound all pushing Griffin to the right side of the passenger’s compartment.
5. At this time, there is no physical, forensic, or photographic evidence that Officer Simmonds was attached to the vehicle or his jacket was closed in the door or that his foot was run over. Should that evidence become available for inspection, we reserve the right to amend opinion.
City’s Objections
The City raised four objections to the proposed opinions. First, the City argued that Roder’s opinions are contradicted by the record. But the City does not even attempt to tie this argument to the Daubert standard.
Second, the City argued that Roder’s fourth opinion, “that Griffin was not shot during the u-turn because the bullet’s path through the body does not show that Griffin was leaning to the right, which he would have been during the u-turn,” is not reliable.
Third, the City contended that Roder’s second opinion contains medical conclusions, which are outside of the scope of Roder’s qualifications.
Analysis
The Court agreed with Plaintiffs that the City’s reliability concerns do not rise to a level necessitating exclusion, instead only going to weight. The City can challenge the weight of the testimony through cross examination as well as through its own expert who is prepared to rebut Roder’s conclusion.
Moreover, Roder clarified in his deposition that he did not base his conclusion on physiology, but based it on the empirical evidence typically relied upon by others in his field.
The Court lastly turns to Roder’s “opinion” that there was no evidence that Simmonds’s jacket was closed in the door. The Court has already held that Simmonds’s testimony that his jacket was stuck in the door of the vehicle does not present a genuine or material dispute of fact precluding summary judgment on Plaintiffs’ Fourth Amendment claim, and therefore any testimony on this point would likely be moot. But, in the event this case is tried and either Defendant appears likely to put forth evidence or argument about the jacket, the Parties may revisit this issue.
Held
The Court denied the Defendant City of Atlanta’s motion to exclude Plaintiffs’ expert Scott Roder.
Key Takeaway:
City contended that Roder’s second opinion consisted of a conclusion about the physiological effects of D’Ettrick’s injuries. Out of context, the Court can see how a reasonable reader would conclude that this statement of what D’Ettrick could or could not do was a medical opinion, and Roder’s expert material provide no evidence of medical training or education that would lay a foundation for such opinions. However, Roder clarified in his deposition that he did not base his conclusion on physiology, but based it on the empirical evidence typically relied upon by others in his field.
Since Roder’s materials do not provide a foundation for medical opinions, and in the event this matter is tried, the Court is prepared to supervise Roder’s testimony to ensure it does not veer into medical testimony.
