VEC, Inc. accused Joyce Electrical Inc. and Hudson Insurance Co. of breaching a building contract between the parties, after Williams Field Service Company LLC awarded VEC a contract to build an electrical substation and distribution line.
After soliciting bids for subcontractors to do the electrical work on the project, VEC hired Joyce. Joyce eventually fell behind on their contractual obligations, prompting VEC to prepare a recovery plan. Joyce allegedly failed to meet the obligations outlined in the recovery plan as well, and allegedly abandoned the project. As a result, VEC had to have other contractors finish the unfinished work. Delays in the project caused VEC to incur $280,000 in liquidated damages to Williams.
Accordingly, VEC filed this action against Joyce and Hudson to collect their losses on the project, which include liquidated damages paid to Williams, additional costs paid to subcontractors to complete Joyce’s obligations, increased overhead and job costs, and lost profits, which total $1,403,035.40 plus interest.
George P. Ellis is an experienced Senior Construction Consultant who provides Construction Consulting and Expert Witness services to Contractors, Subcontractors, Owners, Architects, Engineers, Developers, Insurance Companies, Attorneys, etc. for projects located throughout the U.S. Ellis’ Construction Consulting and Expert Witness Services expertise includes Critical Path Method (CPM) Schedule Analysis, Delay and Disruption Analysis, Damages Computation and Analysis, Lost Labor Productivity Analysis, Change Order Preparation and Analysis, Defective Work Claim Review and Analysis, Analysis of Work Scope Disputes, Analysis of Project Impacts from Differing Site Conditions, etc.
Defendants sought to preclude the expert testimony and report of Ellis, arguing that he is not qualified to calculate damages, that his evidence is unreliable, and that his evidence does not fit the issues of the case.
Qualifications
First, Defendants averred that Ellis “had no qualifications to opine on damages.”
It was worth noting that Ellis works on projects ranging from consulting to the tabulation of damages for litigation in the construction industry. Ellis also reports extensive experience tabulating construction damages concerning power plants. Based on his qualifications, the Court found Ellis a qualified expert in construction management and damage calculation for this case.
Reliability
Defendants next submitted that the Report is “devoid of any actual analysis, is full of misrepresentations of the discovery record, and is rife with impermissible conclusions of law.” Additionally, Defendants contended that the opinions of Ellis contain no methods or procedures and are unreliable.
The Court held that the the Report’s analysis relies heavily on Ellis’s practical experience. Ellis extensively analyzed the record’s construction documents to reach his conclusions. Additionally, Ellis buttresses some of his arguments with independent data, including weather data.
The Court concluded that Ellis used objective grounds to come to his conclusions. Any factual discrepancies do not defeat the reliability of Ellis’ expert evidence, as Defendants will have the ability to cross-examination Ellis on these issues at the time of trial.
Fit
Finally, Defendants submitted that “Ellis’ opinions do not fit the case and will not help the factfinder understand any evidence or decide any fact in dispute.” Basically, Defendants argued that the case is too straightforward for expert interpretation and that his “net opinions, or ipse dixit, should be excluded from evidence because they “would be completely unhelpful or harmful to the trier of fact.”
The Court found that the issues in the case were sufficiently industry-specific to allow an expert to aid the trier of fact. Due to his practical experience and thorough report, Ellis’s expert evidence fit the issues in this case. However, to the extent Ellis’s conclusions ventured into legal conclusions, the Court proceeded to exclude them. Otherwise, Ellis’s evidence sufficiently fits the issues of this case under Federal Rule of Evidence 702.
Held
The Court granted in part and denied in part the Defendants’ motion in limine to preclude the expert testimony of George P. Ellis.
Key Takeaways:
Daubert factors such as peer review, publication, and potential error rate “simply are not appliable, when the reliability of testimony from a practical expert depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.”
The practical experience expert’s evidence can fit the issues of the case by utilizing the available facts and his practical experience to help the trier of fact navigate complex industry-specific matters.
Plaintiff, Ansur America Insurance Company, sued Defendants, James A. Borland and Quinn, Johnston, Henderson & Pretorious, Chtd., an experienced defense lawyer and his law firm, for alleged legal malpractice in handling a complex product liability case in St. Clair County, Illinois. Plaintiff alleged that Defendants failed to meet the standard of care in representing Plaintiff in a tripartite relationship, where Plaintiff insured a company that sold the underlying plaintiff a shower stool that broke, causing her to fall and dislodge hardware recently placed by a surgeon in her spine.
Defendant filed motions to excude the opinions of Plaintiff’s experts Falak Shah and Sari Montgomery.
Structural Engineering Expert Witness
Falak Shah, Ph.D., P.E., C.W.I., is a managing engineer in Exponent’s Mechanical Engineering Practice with experience assessing the performance, mechanical integrity, and fitness-for-service of structural and mechanical systems. His experience involves leading investigations of different structures, products, and mechanical systems in a broad variety of applications and a wide range of materials. He is a licensed professional engineer in the state of Illinois and is a certified welding inspector (C.W.I.), a certification from the American Welding Society (AWS). Shah has a Ph.D. and M.S. in civil engineering (with a specialization major in structural engineering) from the Georgia Institute of Technology and a B.S. in civil engineering from the University of Florida. He has completed advanced coursework in and has experience with the analysis and design of a variety of materials, including wood, metals, and composite materials. In addition to his degrees, licensure, and other certifications, he has a multidisciplinary certificate in the mechanical properties of materials.
Sari Montgomery received her B.A. at the University of Chicago and her J.D. at Loyola University Chicago. Since her graduation in 1994, she has worked as Litigation Counsel for the Illinois Attorney Registration and Disciplinary Commission (“ARDC”) and was ultimately promoted to Senior Litigation Counsel. In those roles, she performed hundreds of investigations and prosecuted over 50 disciplinary cases before the ARDC’s Hearing Board. She also trained ARDC counsel and staff.
Since 2010, Montgomery has been employed at Robinson, Steward, Montgomery & Doppke LLC, where she has represented attorneys in disciplinary investigations, hearings, and appeals before the ARDC and the Illinois Supreme Court, represented judges before the Illinois Judicial Inquiry Board and bar applicants in character and fitness matters. She has provided ethics advice and opinion letters to law firms, attorneys, government agencies and law-related businesses, and has served as an expert witness in legal malpractice and fee litigation. She has served as an adjunct professor teaching legal ethics and professional responsibility, has served on numerous committees and boards, and has authored numerous publications.
Shah was requested to “analyze the mechanical cause or causes of the failure” of the shower stool.
Defendants argued that Shah’s opinions are irrelevant and unreliable in that he provides only an outline of untested hypotheses in his June 14, 2023 report, such that his analysis is incomplete and cannot be analyzed through any relevant means. They further argued that Shah provides failed to eliminate possible causes related to the failure of the shower stool.
Shah’s report and opinions are based on his visual inspection of the shower stool in April 2023, and a review of documents provided. The parties had agreed in advance of Shah’s inspection that the stool could be photographed, videoed, examined, and measured. Whether any additional testing would take place was left to be determined.
Shah opined that a visual examination alone did not provide him with sufficient information to determine the mechanical cause or causes for the stool’s failure to a reasonable degree of engineering certainty. He further opined that there are three categories under which the mechanical cause or causes could fall, but additional analyses beyond merely visual inspection would be required to assess each of those.
While Shah didoes not identify the mechanical cause for the stool’s failure, the Court finds that his opinions and conclusion that a visual inspection alone could not determine the mechanical cause or causes of the stool’s failure are directly relevant to the issue of whether the applicable standard of care required Defendants to retain an engineering expert to conduct the analyses necessary to make the determination.
Sari Montgomery
Defendants sought to exclude Montgomery’s opinions that Defendants violated the standard of care by:
(1) Failing to issue a litigation hold letter at the beginning of the litigation;
(2) Failing to conduct jury verdict research;
(3) Failing to timely advise Ansur and Signature of conflicts of interest over the law barring insurance for punitive damages; and,
(4) Failing to inform Ansur and Signature that there could be a $10 million punitive damage award in addition to a $1.35 million award in compensatory damages, one month before the trial, when prior liability estimates had exposure not exceeding $325,000.
Montgomery is not qualified to render opinions in this case regarding the standard of care because she lacks the experience to qualify her as an expert product liability litigation attorney
Defendants also pointed out that Montgomery has never represented a product manufacturer nor handled a case involving a personal injury or consumer products, has never represented a client who has been alleged to be liable for punitive damages apart from sanctions, and has not handled a case in St. Clair County, Illinois.
As a licensed attorney who had represented attorneys in disciplinary investigations, hearings and appeals, both for the Illinois Attorney Registration and Disciplinary Commission and in private practice, the Court held that Montgomery has the requisite background and experience to render opinions regarding the standard of care Defendants owed to Plaintiff based on the applicable ethical requirements and rules of professional responsibility.
Montgomery’s opinions regarding Defendants’ requirement to give coverage advice to Ansur and the insured company in the underlying case violate the Rules of Professional Conduct
Defendants contended that if they had disclosed a conflict of interest between Ansur and the insured, Signature, Ansur would have been handed a significant coverage defense, thereby greatly harming Signature and violating Rules of Professional Conduct 1.6(b)(7). They also argued that an attorney retained by an insurance company to defend its insured owes a duty to the insured not to disclose facts to the insurer that might prejudice the insured’s rights in a potential coverage dispute with the insurer, as set forth in the Illinois State Bar Association (“ISBA”) Advisory Opinion, dated July 17, 1992.
In the instant case, Ansur alleged that at no time after the filing of the motion seeking punitive damages in the underlying case, did Defendants advise Ansur or Signature that there was a potential conflict of interest between them because punitive damages would not be covered under Signature’s policy.
Montgomery’s report sets forth her opinions regarding Defendants’ ethical duties and that a breach occurred when Defendants did not disclose the existence of a resulting conflict of interest between Ansur (the insurer) and Signature (the insured) on the issue of punitive damages. The Court held these opinions to be reliable, and directly relevant to Ansur’s claims and the issues raised in this case.
Defendants also argued that Montgomery’s opinions regarding a conflict of interest on coverage and punitive damages conflict with an Illinois State Bar Association Advisory Opinion and are therefore impermissible.
However, the ISBA opinion itself stated “While the Opinions express the ISBA interpretation of the Illinois Rules of Professional Conduct and other relevant materials in response to a specific hypothesized fact situation, they do not have the weight of law.”
Montgomery’s opinions regarding Defendants’ communications to Ansur about the liability and damages exposure in the underlying case should be barred because she doesn’t have education, training, or experience in evaluating a product liability case
Defendants asserted that her opinions, claiming Defendants violated Rule 8.4(c) and were dishonest and deceitful, are “off base” because she has never handled a product liability case and would not know whether rapid changes in the case as it approaches trial require different or additional reporting.
The Court held that Montgomery has the requisite background and experience to render opinions regarding the standard of care Defendants were required to meet based on the applicable ethical requirements and rules of professional responsibility. Specific experience with respect to product liability litigation is not required in this case.
Finally, Defendants argued that Montgomery’s opinion regarding Defendants’ failure to conduct appropriate jury verdict research should be barred because she lacks experience in product liability defense, cannot opine how a product liability defense lawyer determines exposure, has never done product liability defense jury verdict research, and did not conduct her own jury verdict research before rendering her opinion. On this point, the Court agreed. Montgomery failed to provide a basis for this particular opinion, and her background and experience alone do not suffice.
Held
The Court denied Defendants’ motion to exclude the expert testimony of Falak Shah.
The Court granted in part and denied in part Defendants’ motion to exclude the expert testimony of Sari S. Montgomery.
Key Takeaway:
Defendants’ argument that Shah’s opinions are unreliable because they do not address each of the Daubert factors fails as well. Here, Shah’s methodology and analysis were appropriate given the issues and under the circumstances presented. He performed a visual inspection as agreed before opining that he could not determine the cause the stool’s failure solely based on that type of inspection, which is an issue presented in this case.
Montgomery’s opinion regarding Defendants’ failure to conduct appropriate jury verdict research was barred because she lacks experience in product liability defense, cannot opine how a product liability defense lawyer determines exposure, has never done product liability defense jury verdict research, and did not conduct her own jury verdict research before rendering her opinion. However, specific experience with respect to product liability litigation is not required in this case. Montgomery has the requisite background and experience to render opinions regarding the standard of care Defendants were required to meet based on the applicable ethical requirements and rules of professional responsibility.
Case Details:
Case Caption:
Ansur America Insurance Company V. Borland Et Al
Docket Number:
3:21cv59
Court:
United States District Court for the Southern District of Illinois
In the early hours of September 24, 2021, Cedric Lofton was arrested for allegedly battering officers of the Wichita Police Department. WPD determined that, due to his arrest, Lofton needed to be taken into custody. Because Lofton was still a juvenile, he was transported to the Sedgwick County Juvenile Intake and Assessment Center (“JIAC”) for processing.
When WPD left Lofton at JIAC to be processed, Lofton did not cooperate. Lofton displayed escalating noncompliance and made threatening comments. As Lofton continued to fight, kick, and resist the Defendants’ efforts to control him, they transferred Lofton to the prone position in hope of restraining him safely until he calmed down. Lofton continued resisting and fighting, never appearing to tire or give up and a call was made to WPD so that Lofton could be transported to a hospital. Eventually, they were able to handcuff Lofton, and he later stopped resisting and appeared to fall asleep. Defendants waited WPD to arrive to have them transport Lofton from JIAC to a hospital. After several minutes, Lofton stopped breathing. Conklin began performing CPR and EMS was called. Lofton was transported to a hospital and died a few days later.
Defendants Jason Stepien, Brenton Newby, William Buckner, Karen Conklin, and Benito Mendoza (“the JIAC/JDF Defendants”) were sued for excessive force, deliberate indifference to a medical need, and failure to intervene. They were also sued for battery, negligence, and both the intentional and negligent infliction of emotional distress under Kansas law.
Plaintiff retained Jerome Davis and Michael Lyman to provide testimony about nationally recognized definitions and standards, and that based on those measures, Lofton was controlled by Defendants and Defendants continued use of force was excessive and unreasonable.
Law Enforcement Expert Witnesses
Jerome Davis has investigated and reviewed numerous uses of force, while working in various supervisory ranks for New York City Department of Correction, and as Deputy Commissioner of Operations for the New York City Department of Juvenile Justice.
Michael Lyman is currently employed as a litigation consultant in the area of police practices and procedures and has served as an expert witness since August 2001. In May 2019, he retired from the Columbia College Department of Criminal Justice and Human Services where I was employed as a full professor for 32 years.
He has authored seven books dealing with various areas of policing. These have been published by both nationally and internationally recognized publishing houses.
Defendants criticized Davis because (1) his testimony was not based on sufficient facts or data; (2) his methodology was not based on reliable principles; and (3) even if his methodology were sound, he failed to reliably apply his methodology to the facts of the case.
Defendants added that Davis only relied upon the JIAC security footage in forming his opinion, and because the video lacks sound and is shot from an obstructed angle, most of Davis’ opinions are based on speculation.
Plaintiff argued that Davis’ testimony is necessary to refute Defendants’ claim that Lofton’s continued resistance justified their prone restraint. To do so, Plaintiff proffered that Davis will provide a definition of “control” which the jury can use to determine whether Defendants’ actions were objectively reasonable.
When pressed on what Davis’ definition of control was, the ultimate consensus came from Davis’ deposition. There, Davis said, “If you look at the video and you watch, while he’s in that prone position on the floor, within a minute or two of that, you see no movement at all, which means, from that point on, they had complete control of Lofton.” In sum, Davis’ definition of “control,” based on commonly recognized corrections standards, is the point at which the detainee has ceased struggling or has stopped moving.
Davis’ Definition of Control
When the Court asked Defendants whether it would “be appropriate for Davis to opine on his definition of control,” Defendants replied, “I think that opinion would not necessarily be improper.” In fact, in response to the Court’s questions, Defendants stated that they “would not disagree” with “Davis’ expert opinion that once a Defendant has stopped struggling . . . it is not inappropriate at that point to consider that he’s under control.”
Given that Davis’ definition of control is uncontroverted, the Court allowed Davis to testify about how “control” is defined by the corrections community and what uniform national standards recognize as signs of a Defendant being under officer control.
Davis’ Conclusions Regarding Control
Because the question of “control” is a factual finding, the Court decided that Davis will also not be permitted to testify as to his factual or legal conclusions about whether Lofton was under control since allowing him to do so would essentially “tell the jury what result it should reach without providing any explanation of the criteria on which that opinion is based or any means by which the jury can exercise independent judgment.”
The Court cannot allow an expert to “usurp the function of the jury in deciding the facts” or “interfere with the function of the judge in instructing the jury on the law.”
Michael Lyman
Defendants made a similar argument regarding expert Lyman’s testimony. They asked the Court to prohibit Lyman from testifying about the reasonableness of Defendants’ force because “objective reasonableness” is a fact issue for the jury and “excessive force” is a legal conclusion that the judge must instruct on.
The Court permitted Lyman to testify regarding nationally accepted corrections practices regarding use of force and the JIAC policies, but it did not allow him to testify as to any legal conclusions or other issues the jury will be asked to decide, such as whether the officers’ conduct was reasonable, excessive, or unnecessary.
Additionally, the Court did not permit Lyman to testify as to the credibility of any witness, the state of mind of any witness or party, or advise the jury as to case law or constitutional standards.
Held
The Court granted in part and denied in part the Defendants’ motion to strike or exclude certain opinions of Jerome Davis and Michael Lyman.
Key Takeaway:
The Court did not permit Davis to testify as to his own conclusions regarding the officers’ control over Lofton because the jury can watch the JIAC security footage for itself and form its own opinions as to whether Lofton was under the officers’ control.
Similarly, the Court did not permit Lyman to testify as to any legal conclusions or other issues the jury will be asked to decide, such as whether the officers’ conduct was reasonable, excessive, or unnecessary.
This maritime negligence case arose from an accident involving Joseph Sylvester that occurred on September 23, 2021. In 2021, Talos operated the South Marsh Island 130 (“SMI 130”) field, located in the Gulf of Mexico on the Outer Continental Shelf. Sylvester, employed as a crane mechanic by Gulf Crane Services, Inc. (“GCS”), was assigned to work for Talos on its offshore production platforms in the SMI 130 field between April and October 2021. On the day of the accident, Sylvester claimed he sustained personal injuries at approximately 9:30 a.m. while being transferred in a personnel basket from the M/V Miss Peggy Ann (“the vessel”) to Talos’s SMI 130 platform.
He explained that when the crane operator, Brian Spears, lifted him in the basket, the basket swung rapidly, causing it and Sylvester to slam violently into a Connex box on the vessel’s deck. Sylvester contended that the negligent operation of the SMI 130 platform crane by Spears caused or contributed to his injuries.
Extent of his injuries
As a result of the incident, Sylvester sustained serious injuries, including damage to his hip, back, and legs. He suffered severe pain and swelling in his hip, thigh, and leg and received a diagnosis of a blood clot. In October 2021, he was diagnosed with deep vein thrombosis (“DVT”) and underwent a surgical procedure to remove the blood clots. He was placed on two powerful blood thinners to prevent the recurrence of clots. Despite these surgeries and ongoing medication, his leg pain worsened. In February 2023, an ultrasound revealed new blood clots in his left leg, leading to swelling and severe pain.
Defendants retained Chad Domangue as an expert in neurology and pain management. At their request, Domangue conducted a physical examination of Sylvester, reviewed his medical records, and determined the cause of his severe leg pain which continued despite receiving extensive treatment. Following his examination, Domangue expressed the medical opinion that all of Sylvester’s symptoms were related to his vascular abnormalities and not his lumbar spine. However, Plaintiffs contended that this statement, along with others, exceeded the scope of Domangue’s expertise.
Neurology and Pain Management Expert Witness
Dr. Chad M. Domangue, M.D. has exhaustive training in identifying and administering treatment for conditions that trigger severe and chronic pain and decreased functionality as an Interventional Neurologist and Pain Management Specialist.
He is double board-certified in Neurology and Pain Management and is board eligible for Clinical Neurophysiology. These distinct credentials allow Domangue to assess and furnish his opinion as both a pain specialist and a neurologist. It displays a tangible demonstration of his deep commitment to providing the best possible care for his patients.
In this case, Plaintiffs raised several arguments underDaubert and Rule 702 regarding the reliability of the vascular opinions provided by Domangue. They asserted that his opinions were unreliable for several reasons: (1) they lacked specialized knowledge that would assist the trier of fact in understanding the evidence; (2) they were not based on sufficient facts or data; (3) they were unsupported by reliable principles and methodology; and (4) there was no evidence to support the reliability of his opinions.
In response, Defendants contended that Plaintiffs misunderstood the fields of neurology and pain management and the methodology employed by Domangue in forming his opinions. Physicians specializing in neurology and pain management frequently create differential diagnoses to assess whether a patient’s vascular conditions contribute to their pain or other symptoms.
Vascular Issues as a Potential Causal Factor for Sylvester’s Prolonged Pain
As the Court examined the arguments, it determined that Domangue’s opinion regarding vascular issues as a potential causal factor for Sylvester’s prolonged pain was appropriate. It was reasonable for Domangue, as an attending physician, to consider a vascular abnormality as explanations for Sylvester’s persistent symptoms and swelling.
Qualifications
Despite Plaintiffs’ claims that Domangue lacked the qualifications to opine on vascular issues and had no factual support for his opinions, Defendants argued that he was well-equipped to evaluate the impact of vascular conditions on his patients. The Court supported this view, noting Domangue’s extensive training. Domangue participated in an internship program at the Medical Center of South Carolina, Charleston, South Carolina. The first year of the program was internal medicine, which included training in vascular issues. Additionally, from 2005 to 2007, Domangue was a resident in the neurology department at the University of Virginia, where he participated in and was trained in the stroke program. In this program, he received specific training in the diagnosis and care of vascular conditions.
Reliable Methodology
Domangue’s report demonstrated his thorough evaluation of Sylvester’s case. He reviewed medical records, including imaging studies and narrative records, and conducted a physical examination. From this, he arrived at a differential diagnosis, which Defendants argued is a reliable methodology. A differential diagnosis involves a systematic process where medical practitioners identify the most likely cause of a patient’s symptoms and then evaluate all the possible causes of the condition based on the history of the patient’s symptoms, his medical records as well as physical examination and laboratory testing results.
In this case, Domangue explained that, as a neurologist and pain management specialist, he was tasked with evaluating how the presence and effect of vascular conditions might contribute to Sylvester’s complaints of pain and physical limitations. He did not propose treatments for Sylvester’s blood clots; instead, he diagnosed the worsening venous issues as the source of the pain. After starting with a physical examination, medical history, and imaging studies, Domangue ruled out lumbar injuries as a cause of Sylvester’s symptoms. He therefore ruled in vascular issues as a potential cause of Sylvester’s clotting.
Held
The Court denied the Plaintiffs’ motion to exclude the opinions of Chad Domangue.
Key Takeaway:
The Court concluded that the arguments against the admissibility of certain medical opinions lacked sufficient grounds for exclusion. It emphasized the importance of evaluating the methodologies used in forming medical opinions, particularly the ones consisting of a differential diagnosis, which followed a patient-specific process of elimination in order to identity the “most likely” cause of a set of signs and symptoms from a list of possible causes. The Court acknowledged that challenges to these opinions would be better addressed through cross-examination instead of exclusion.
Case Details:
Case Caption:
Sylvester vs. Talos Energy Offshore, LLC
Docket Number:
6:22cv5192
Court:
United States District Court for the Western District of Louisiana, Lafayette Division
In May 2023, Joy and Brian Parnes filed this lawsuit against the Orange County School Board for disability discrimination and retaliation related to the education of their minor daughter, S.P. Pursuant to Rule 702, the Parneses seek to introduce the opinion testimony of Timothy Conway, Ph.D. in support of their theory that S.P. requires accommodations and the cost of those accommodations including private schooling.
Neuropsychology Expert Witness
Timothy Conway completed supervised pre-doctoral and post-doctoral training in the diagnosis and treatment of neurodevelopmental disorders in children and adults at The Morris Center [(TMC)]. Conway received his bachelor’s degree in psychology, and he holds a Ph.D. in clinical psychology with a concentration in neuropsychology. After completing his Ph.D., he completed a post-doctoral fellowship at the VAMC-Brain Rehabilitation Research Center of Excellence.
Since 2008, Conway has owned or managed TMC clinics in Ocala, Florida; Ponte Vedra Beach, Florida; Birmingham, Alabama; Port of Spain, Trinidad and Tobago, West Indies; and NOW!, an EdTech company. Also, since 2008, he has been training and directing teams of healthcare professionals (occupational therapy, speech-language therapy, clinical psychology/neuropsychology) and educators in the transdisciplinary assessment and treatment of neurodevelopmental disorders. And he has co-authored numerous publications and provided training courses and workshops to professionals.
Conway wrote in his expert report that S.P. “needs high intensity, high frequency, evidence-based intervention for her specific learning disorders, AD/HD and her developmental coordination disorder.”
Conway is Qualified to Provide Opinion Testimony
The Board claimed that because Conway is not licensed in Florida or another state, he is unqualified to serve as an expert in psychology, school psychology, occupational therapy, speech-language pathology, or K-12 educational needs. Here, the Board pointed to the lack of information in Conway’s expert report or curriculum vitae that he is a licensed psychologist, school psychologist, licensed occupational therapist, or licensed speech-language pathologist in Florida (or any other state). Also, the Board asserted that he is unqualified because he has never taught in a K-12 classroom in Florida and he is not a licensed educator in Florida.
Finally, the Board argued that Conway is unqualified because he “never personally treated, evaluated, or assessed S.P. in a clinical or school setting.”
To the extent that the Board argued that Conway is unqualified because he is unlicensed in Florida, it has not stated how this renders Conway unqualified in this case. Moreover, the Board failed to explain its arguments that he is not licensed as a speech-language pathologist in any jurisdiction or as an educator in Florida. The Court held that argument goes to the weight that a trier of fact might give the testimony, but it does not preclude admissibility.
The Parneses submitted that Conway has evaluated S.P., reviewed her medical and school records (including those that the Board produced), and has spoken with S.P. and her parents on “numerous occasions regarding her education.” The Court held that his expert report was based on evaluation, information, and the status of [S.P.] at that time.
Conway is Not Offering a Causation Opinion
Since Conway’s report is limited to S.P.’s present treatment, education, and schooling needs, the Board argued that Conway’s “causation” opinions warranted exclusion. The Board submits that the “causation” opinions that Conway will offer are: (1) the alleged acts or omissions on the part of the Board, (2) the adequacy and appropriateness of any services and supports the Board provided S.P., and (3) whether the Board damaged or harmed S.P.
The Parneses explained that Conway’s report does not opine as to “causation” because he is not going to offer a “causation” opinion. Thus, the Court excluded Conway’s opinions as to causation.
Reliability of Conway’s Methodology
The Board argued that Conway’s proposed opinions are not based on a reliable methodology and are simply ipse dixit that will not assist the jury.
Conway’s opinions will help the jury to understand the parties’ positions
First, the Court held that Conway’s opinions will help the jury to understand the parties’ positions and the remedies that the parties believe are appropriate or inappropriate. Conway’s opinions are not so speculative (or outside the bounds of what he does) that his opinions will fail to assist the jury. And while the Board argues that Conway’s lack of licensure means he will not assist the jury, as previously discussed “lack of board-certification [or a license] goes to weight, not admissibility.”
Second, the records that Conway reviewed were produced to the Board and consisted of S.P.’s school records, medical records, and evaluations. Moreover, Conway interviewed S.P., her parents, and family members. Conway reviewed all of S.P.’s school records covering the past six to seven years and reviewed all evaluations of disabilities. The Court held that Conway’s opinions are based on sufficient facts and data.
Third and fourth, the Court held that Conway’s proposed opinions as to the accommodations that S.P. requires to catch up with her peer group and to participate in public or private school are reliable. The Parneses stated that Conway used peer reviewed and accepted principles to evaluate S.P.’s school records and medical records. His opinion connects his experience and secondary sources to S.P.’s school and medical records such that it is the product of reliable principles and is based on reliable methodology.
Conway’s opinions about the costs of private schooling and healthcare are unreliable
When Conway submitted his estimates for healthcare costs, the Court found that he failed to provide any basis for them. Conway’s report does not set forth the cost of individual services. Likewise, there is no cost estimate for the online program (NOW!) that S.P. is enrolled in; it is not clear whether that program is included in the monthly figure or if it is a separate cost.
Moreover, Conway did not submit that he has testified as an expert witness regarding medical coding or the reasonableness of medical billing. And he does not submit that his opinion on S.P.’s medical billing was the result of considering authoritative sources on the subject. Nor does he explain how he determined “typical” rates in the area, and there is no support for this determination other than Conway’s own report.
Likewise, Conway’s opinion on the cost of private schooling is unreliable. As with Conway’s opinion on healthcare costs, he fails to provide “any explanation of the basis, facts, or data considered in reaching” his opinion as to S.P.’s continuing treatment and educational costs. And he does not cite to any other resource to support his opinions. As a result, his methodology is insufficiently reliable for him to offer an opinion on the continuing treatment and educational costs in this case.
Held
The Court limited the testimony of expert Timothy Conway after excluding his opinions as to causation, healthcare costs, and schooling costs.
Key Takeaway:
Conway opined based on his experience “helping students with severe and many deficits,” his review of S.P.’s medical and school records, his evaluation of S.P., and speaking to the Parneses and family members. His company may charge certain rates, but there is insufficient information in his expert report to support his testimony as an expert regarding the costs of healthcare, educational services, or private school tuition in the community at large. Conway does not provide support for his calculation of the costs of S.P.’s potential treatment.
This matter is a False Claims Act case wherein the Relators alleged that Defendant pharmacies submitted false or fraudulent claims to obtain federal funds from Government Healthcare Programs to which Defendants were not entitled. The Relators alleged this occurred through the electronic submission of inflated usual and customary charges to Government Healthcare Programs because Defendants failed to report their cash price matches as their usual and customary prices.
On May 21, 2018, SuperValu (“Defendants”) filed its first motion to exclude Ian Dew and memorandum in support. On March 20, 2019, U.S. District Court Judge Richard Mills entered an order denying Defendants’ motion and concluding that Dew’s expert testimony should not be excluded based on methodology, reliability, or relevance.
On February 26, 2024, Defendants filed a second motion to exclude the testimony of Dew. Defendants argued that this Court should not follow the prior ruling of Judge Mills from 2019 because the ruling was incorrect considering the changes to Federal Rule 702 and based on a supplemental report of Dew.
Data Analytics Expert Witness
Ian Dew has a bachelor’s degree in mathematics and psychology, a Master of Engineering from the University of Virginia, and a Master of Environmental Science from Johns Hopkins. He has worked on complex, computer-assisted data analysis for more than 25 years, focusing on complex healthcare litigation since 2004.
Defendants asked this Court to reconsider its prior ruling on Dew’s methodology and his application of this method in a more recent report. Specifically, Defendants took issue with a new report issued by Dew in December 2023. According to Defendants, this report, which the Relators describe as using the same methodology but filtered in a different way, is unreliable.
Relators pointed to the testimony of Dew regarding the filtering of results in the updated report. This filtering involved whittling down numbers, by “applying filters to identify a subset within the full set from my rebuttal report.” Further, Relators noted that the Actual Usual and Customary Prices that were filed in the supplemental report are the same prices and data as the first report just presented in a different manner.
Qualifications
The Court has, in 2019, discussed Dew’s qualifications at length and will not repeat each of those points. The Court finds based on the knowledge, skill and experience of Dew, that Dew is qualified to provide data analysis of large sets of electronic information.
Methodology
Defendants specifically highlighted Dew’s per-state, per-month analysis as unreliable. Defendants argued the record in this case established that the usual-and-customary price was determined based on a particular store’s prices on a particular day. Relators initially instructed Dew to assume that lower price matches that are widely available are the usual and customary prices that Defendants should have charged Government Healthcare Programs for their drugs. Dew analyzed the massive amounts of raw data provided by the Defendants and determined the best way to group information that could be plugged into an algorithm while excluding potential outliers. The Court noted that this methodology, in relying on information provided by others, including counsel, would be appropriate when rendering an opinion.
The specific methodology in calculating usual and customary pricing by using the most frequently occurring discounted cash price offered by month is a more conservative calculation according to Dew. Further, Dew testified that his use of the most frequently occurring price is recognized as a statistically valid method to find the central tendency of a large data set.
Defendants took issue with Dew’s alleged refusal to review government contracts for each of the Defendants. However, Dew’s work had a limited scope. He was asked to calculate the difference between the two types of price points found within Defendants’ data production: (1) discounted cash override prices and (2) reimbursement based upon undiscounted reported usual and customary prices.
To sum it up, Defendants’ arguments regarding Dew’s methodology are largely the same as their arguments in their initial motion, and the Court declines to reverse its earlier order regarding the exclusion of Ian Dew’s testimony.
Reliability
Defendants take issue with Dew’s per-state, per-month analysis, arguing that a per-store, per-day analysis is more appropriate. Further, Defendants argue that Dew’s lack of justification as to why he utilized a per-state, per-month analysis further supports Defendants position. Dew’s failure to review Pharmacy Benefit Manager contracts and failure to utilize geographic and time parameters specified by state Medicaid are two additional factors Defendants believe should have been considered. Lastly, Defendants point to the fact that Dew has indeed calculated hypothetical usual and customary prices using a per-store, per-quarter methodology.
Dew has testified as to his rationale for his analysis and his use of an alternate method in the past does not disqualify his conclusions in the present matter.
The Court found that Dew’s opinions and reports quantifying alleged overcharges regarding usual and customary price reflect a reliable application of his principles and methods.
Relevance
Defendants argued that Dew’s methods are irrelevant as they do not use the “relevant” unit of per-store, per-day usual and customary pricing which reflects the record in this matter.
However, the Court decided that Dew’s testimony and reports provide the type of context and analysis that would clearly assist a trier of facts in determining whether there were overcharges to Government Healthcare Programs. This testimony regarding how often these claims were submitted and the overages claimed above the usual and customary prices may be helpful to jurors as this subject matter is not within a juror’s usual scope of knowledge.
Held
The Court denied the Defendants’ motion to exclude the testimony of Ian Dew.
Key Takeaway:
Although Defendants took issue with the way Dew organized and grouped tens of millions of purchases, that alone is not enough to disqualify his opinion. Dew’s failure to review Pharmacy Benefit Manager contracts and failure to utilize geographic and time parameters specified by state Medicaid are two additional factors Defendants believe should have been considered. However, the Court is unpersuaded that Dew’s methodology has changed in any significant manner, so the Court will not reverse its prior ruling.
Case Details:
Case Caption:
United States Of America Et Al V. Supervalu Inc Et Al
On a foggy night in November 2015, Plaintiff Kedron Gaston, a minor at the time, was heavily injured in a car accident. The car, driven by her aunt, collided with the back of a semi-truck, resulting in her aunt’s death. The Plaintiff’s mother, seated in the front passenger position, suffered severe injuries that made her unable to care for the Plaintiff and her sister. Consequently, Plaintiff entered foster care. She subsequently sued the semi-truck driver, Defendant Jackie Hazeltine (“Hazeltine”) and his employer, Defendant Royal Paper Stock Co., Inc. (“RPS”), for negligence and for causing emotional distress. The Plaintiff also filed a lawsuit against RPS and Hazeltine’s insurer, Defendant Grange Mutual Casualty Co. (“Grange”), for spoliation related to testing performed on the semi’s rear lighting in July 2016 by Grange’s expert Adam Hyde.
Key issues include the functionality and activation of the semi’s rear lighting system at the time of the accident; the handling of the lighting system after the accident, especially the right rear taillight; and the nature and extent of Plaintiff’s loss and injuries as the result of the accident.
The Defendants hired expert witnesses to provide insights on these matters. Forensic psychiatry expert witness Stevan Weine concluded in his expert report dated March 2, 2023, that the Plaintiff did not exhibit any psychiatric condition during her February 2023 interview, despite previous psychiatric diagnoses. Automotive engineering expert witness Erik Anderson determined that the semi’s rear-facing light assembly was well preserved and capable of being tested to determine whether the bulbs were energized at the time of the accident. Accident reconstruction expert witness, Steven Grundhoefer confirmed that the semi’s taillights were functional and illuminated at the time of the accident.
Stevan M. Weine is the Professor of Psychiatry at the UIC College of Medicine, where he’s also the Director of Global Medicine and Director of the Center for Global Health. For 30 years he has been conducting research both with refugees and migrants in the U.S. and in post-conflict countries, focused on mental health, health, and violence prevention.
His work has been supported by multiple grants from the NIMH, NICHD, DHS, NIJ, and other state, federal, and private funders, all with collaboration from community partners. This work has resulted in more than 130 publications and three books. He has been awarded two Career Scientist Awards: “Services Based Research with Refugee Families” from the National Institute of Mental Health and “Labor Migration and Multilevel HIV Prevention” from the National Institute of Child Health and Human Development.
Weine is the 2020 recipient of the Abraham L. Halpern Humanitarian Award of the American Association for Social Psychiatry and the 2023 recipient of the Piergiorgio L.E. Uslenghi Global Engagement Faculty Award.
Erik Selmer Anderson is an automotive engineer with nearly twenty years of professional experience, fourteen of which were spent working directly for automotive manufacturers. He has direct design and testing experience in vehicle structures, crashworthiness, and closure systems engineering. Erik applies his expertise to expert witness investigations pertaining to vehicle crashworthiness, crash reconstruction, vehicle systems performance, and exterior/interior upper body mechanisms.
Upon completion of his degree in Mechanical Engineering, Erik worked for eight years with Nissan. There, he held positions in Body Design, Closures Design, and Crash Safety. As a Crash Safety engineer, he was responsible for ensuring the achievement of dynamic safety targets, both on a component basis and for complete vehicle performance. This included work in both the virtual design phase through simulation analysis, as well as overseeing and analyzing physical crash testing. Erik performed design/test work on sedans, pickup trucks, crossovers, and cargo vehicles throughout the entire development lifecycle and into mass production.
Continuing his automotive career, Erik then worked at Honda Research & Development for six years, where he was responsible for closures design engineering as a design team chief. At Honda, Erik led a team of design engineers in developing all aspects of minivan slide doors. He also served as design chief for minor-model updates on pickup truck door and tailgate closures. Erik has expertise in all elements of upper body design, including structures, dynamic and static crash safety, sealing, NVH, power-door systems, latches, and exterior/interior components, among others.
Erik earned his Engineering degree from the University of Michigan, one of the nation’s most respected programs. Throughout his career, he has accumulated a multitude of patents for key innovations in upper body design. His education and deep industry experience designing and testing vehicles qualify Erik to investigate a broad range of vehicle topics.
Steven Grundhoefer has 20 years of experience in traffic accident reconstruction. In addition to being ACTAR certified, he is a licensed Professional Engineer in Indiana, Kentucky, Ohio, and Illinois. He possesses extensive trial and deposition experience. He holds a Bachelor’s Degree in Civil Engineering from Purdue University and has approximately 10 years of experience in roadway and site design.
Plaintiff argued that Weine lacked expertise regarding adolescents impacted by traumatic events like car crashes. She pointed out that his CV highlighted experience in global health and refugee issues, but it lacked specific trauma experience related to car accidents involving children. One reference in his CV mentioned “Forensic Psychiatry Practice,” but it did not provide dates to indicate his experience in this area.
However, the Court found that Weine’s CV showed significant experience in analyzing and treating adolescents affected by trauma. He held a fellowship at Yale focused on college students’ mental health and worked as an attending psychiatrist in their Adolescent Partial Hospital. He co-authored articles related to psychiatric care for child and adolescent patients.
In an affidavit, Weine stated he had extensive experience with children and adolescents in traumatic situations. He explained that diagnosing PTSD due to various traumatic events followed a similar approach. His forensic psychiatric practice spanned over 20 years, including cases involving trauma from motor vehicle accidents.
Plaintiff also claimed Weine lacked experience in forensic interviews, citing a failure to discuss informed consent extensively during their interview. However, the transcript along with Weine’s affidavit shows that he discussed the elements of informed consent, including the limits of confidentiality, the extent of his intended disclosures, and the purpose of the interview, with Plaintiff before she agreed to proceed with the interview.
Grange successfully demonstrated that Weine’s qualifications allowed him to address the effects of the Plaintiff’s injuries on her development. The Court held he was qualified to testify as an expert witness under Rule 702.
B. Reliability
The Plaintiff argued that Weine’s opinions from his March 2023 report lacked reliability for two reasons. First, she claimed he did not review enough facts or data before reaching his conclusions about her mental health and history. Second, she criticized his methodology for its inconsistency with ethical guidelines followed in the practice of forensic psychiatry. Based on these points, Plaintiff asserted that Weine’s opinions did not reflect reliable principles in the mental health field.
1. Collateral Information
AAPL Forensic Guideline 5.3 emphasizes the importance of reviewing collateral information in forensic assessments. The Plaintiff claimed Weine violated this guideline by excluding collateral information. However, the argument failed for two reasons.
First, Forensic Guideline 1 clarified that the guidelines do not dictate standards for evaluations. Psychiatrists must use professional judgment to determine appropriate methods of performing a forensic evaluation based on unique circumstances.
Second, the Court found that Weine did consider collateral information. Plaintiff defined collateral information as data obtained from sources other than the subject but did not specify what collateral information Weine excluded from his analysis. According to his report, he reviewed “a variety of documents and videos, including Gaston’s school records from elementary school to present, her employment and training records, medical records, video footage of her deposition, and video footage of the depositions of her guardians, Matthew and Tamara Cochran” in addition to collateral information listed in his report.
Despite these claims, any potential non-compliance with Rule 26(a) was harmless. Courts assess harmlessness based on factors like prejudice to the opposing party and whether the omission disrupted the trial. The Court held that prejudice to Plaintiff is minimal and has been remedied to a degree with Weine’s recent affidavit, which discloses his sources.
2. Context, Frequency, Intensity of Symptoms
The Plaintiff further argued that Weine’s assessment failed to address the context, frequency, and intensity of her symptoms. However, Weine’s notes and report showed he investigated her experiences at school and work. Disagreements between Weine and Westcott about the adequacy of this context relate to substance rather than reliability, making it an issue for the factfinder.
Regarding the frequency and intensity of her symptoms, the Court found that Weine had asked about these aspects during the interview. Though he and Westcott employed different styles, he adequately explored the necessary details.
Plaintiff also contended that Weine did not follow accepted methodologies for diagnosing her potential psychiatric disorders. However, he reported her scores on relevant diagnostic tests consistent with best practices.
The Plaintiff criticized Weine’s report for presenting her history through unattributed quotations, alleging many inaccuracies and typographical errors. However, Weine explained he relied on his notes during the report’s preparation. The discrepancies between his report and the interview transcript were minor and did not undermine his reliability.
Finally, the Plaintiff disputed Weine’s assessment of her quality-of-life post-accident, alleging he manipulated facts. The Court observed that such factual disputes should be explored through cross-examination rather than exclusion of evidence. The evidence showed that Weine’s testimony was admissible under Rule 702 and Daubert.
C. Federal Rule of Evidence 403
Federal Rule of Evidence 403 allows Courts to exclude evidence if its probative value is substantially outweighed by the risk of unfair prejudice or confusion. The Plaintiff further argued that Weine’s report could mislead the jury due to alleged mishandling of facts. However, her previous challenges to his reliability had been dismissed, and she presented no further arguments of undue prejudice.
There was no indication that Weine’s testimony would evoke irrational behavior from the jury. His report clearly explained the Plaintiff’s history and his conclusions. Given the central nature of her damages to the case, Weine’s opinions held significant probative value. Therefore, his testimony remained admissible under Rule 403.
II. Erik Anderson
Erik Anderson was retained by Grange to assess whether the rear right trailer taillight bulb could be analyzed for energization during the crash. In forming his conclusions, Anderson reviewed evidence, including video footage and photographs from a visual inspection conducted on November 29, 2022 which he did not attend. This inspection was notice by RPS and Hazeltine on November 17, 2022. The notice aimed to confirm the condition of the light assembly previously inspected by Grange’s expert, Adam Hyde, in July 2016.
The notice outlined a protocol for the inspection. This protocol restricted all contact with the light assembly to Hyde and required electronic recording by an identified individual. It also mandated a certification process for attendees.
In response, the Plaintiff reiterated her stance that Hyde had destroyed the light assembly in 2016, calling the visual inspection a “sham.” However, she did not object to any part of the inspection protocol but repeated her argument that Hyde’s actions precluded further analysis. Neither she nor her representatives attended the inspection.
Plaintiff argued that Anderson’s opinions should be excluded under Fed. R. Evid. 702 and Daubert due to unreliability. She claimed he relied on evidence from an improperly conducted inspection and disregarded conflicting evidence. Alternatively, she contended that his testimony could confuse the jury and should be excluded under Fed. R. Evid. 403.
A. Reliability
The Plaintiff argued that Anderson’s opinions were unreliable because they stemmed from his review of the November 2022 visual inspection, conducted without an agreed protocol or Court order. She claimed RPS and Hazeltine violated local rules by proceeding without proper certification of a discovery dispute. However, their notice did not demonstrate any unresolved dispute that required her involvement.
Moreover, the Plaintiff’s response to the notice did not request any relief regarding the inspection. She did not question the protocol or seek to halt the visual inspection. Instead, she expressed skepticism about RPS and Hazeltine’s motivations. Consequently, her response did not raise any legal issues for the Court. Later, she aimed to undermine Anderson’s reliability based on her previous response, yet she provided no authority to connect her concerns to his methods. Therefore, the Court allowed Anderson’s testimony under Rule 702 and Daubert.
B. Federal Rule of Evidence 403
The Plaintiff’s alternative argument for excluding Anderson’s opinions under Fed. R. Evid. 403 also failed. She focused on this Court’s acceptance of findings from her mother’s case against RPS and Hazeltine regarding spoliation of the light assembly. The Court confirmed that the findings on spoliation applied here and stated that while RPS and Hazeltine could not relitigate the spoliation issue, Grange could.
The Plaintiff suggested that Anderson’s differing opinions would confuse the jury about how the same event could represent spoliation for one party but not another. However, her concern lacked merit. The condition of the light assembly was crucial to the spoliation claim against Grange, making Anderson’s insights highly relevant.
The Plaintiff merely implied that the differences between his opinions and those of other experts would confuse the jury. Yet, the jury’s role is to weigh competing evidence to resolve factual questions. She failed to provide substantial support for her claim that Anderson’s opinions would confuse the jury regarding spoliation.
Thus, the Court determined that the probative value of Anderson’s opinions outweighed any risk of undue prejudice or confusion. Consequently, his opinions and testimony remained admissible under Fed. R. Evid. 403.
III. Steven Grundhoefer
Steven Grundhoefer was hired by RPS and Hazeltine to study and survey the November 2015 collision site. His work aimed to assist in analyzing and reconstructing the accident. Grundhoefer summarized his findings in 43 bullet points. The Plaintiff challenged one of these opinions and requested to exclude Grundhoefer’s entire opinion as unreliable under Fed. R. Evid. 702 and Daubert, or as potentially confusing under Fed. R. Evid. 403.
The Plaintiff contested Grundhoefer’s assertion that the four rear taillights on the semi-trailer were illuminated during the collision. She argued that he based this conclusion on police photographs taken after the crash. Additionally, she claimed this opinion conflicted with Hyde’s expert testimony from her mother’s case before the Wabash Court, which stated the lights were off at the time of the accident. The Plaintiff also pointed to conflicting testimonies from officers present at the scene, suggesting that Grundhoefer selectively used evidence to support his preferred conclusion. She argued that the differing expert opinions indicated Grundhoefer’s findings were unreliable.
The Plaintiff’s arguments highlighted that this case might require a “battle of the experts” to resolve the issue of the lights’ illumination during the crash. Expert testimony would likely help the factfinder assess the conflicting evidence regarding illumination, crucial for determining the Plaintiff’s negligence and spoliation claims. The Plaintiff attempted to undermine Grundhoefer’s opinion without solid support, which did not diminish its relevance to the factfinder.
Moreover, RPS and Hazeltine demonstrated that Grundhoefer considered more than one set of police photographs in forming his opinion about the lights. His amended report and affidavit revealed he reviewed photographs and videos from inspections of the taillights and bulbs, alongside police scene images.
The Plaintiff argued that Grundhoefer selectively ignored key evidence. Specifically, he overlooked the deposition testimony from Detective Sergeant Mike Davis and Trooper Swisher. Officer Davis had testified about the flashers’ illumination while at the scene. The Plaintiff suggested that his testimony contradicted Grundhoefer’s conclusions regarding the lights, but she did not clarify this alleged contradiction.
In contrast, RPS and Hazeltine argued that Officer Davis’s testimony did not contradict Grundhoefer at all. Trooper Swisher noted that he believed the taillight was not functioning before the crash. While this testimony might seem to contradict Grundhoefer, the Plaintiff failed to provide evidence showing that an expert must align with every witness’s account to be deemed reliable. Her concerns highlighted the necessity for the factfinder to consider all evidence, including Grundhoefer’s opinion.
Therefore, Grundhoefer’s opinion about the lights’ illumination and his entire expert report were sufficiently reliable for admission under Rule 702 and Daubert. The Plaintiff’s unsupported claim that Grundhoefer’s opinion could confuse the jury did not justify the exclusion his testimony under Fed. R. Evid. 403.
Held
The Court denied the Plaintiff’s motions to exclude the testimony of Defendants’ expert witnesses Stevan Weine, Erik Anderson, and Steven Grundhoefer.
Key Takeaways:
The Court allowed the testimony of Defendants’ expert witnesses based on their qualifications and the reliability of their methodologies.
The Court determined that each expert witness had extensive relevant experience—Weine in forensic psychiatry concerning trauma, Anderson in automotive engineering with a focus on vehicle safety, and Grundhoefer in accident reconstruction.
The Court also determined that the expert witnesses employed established methods appropriate for their fields. Weine reviewed adequate collateral information, Anderson followed an inspection protocol, and Grundhoefer considered multiple sources in his analysis.
The Court concluded that the probative value of the expert witnesses’ testimonies outweighed any potential for confusion or prejudice, reinforcing the need for juries to assess conflicting evidence in determining facts.
In conclusion, the Court upheld the admissibility of the expert testimony under Federal Rules of Evidence 702 and 403.
Case Details:
Case Caption:
Gaston V. Hazeltine
Docket Number:
3:21cv896
Court:
United States District Court for the Northern District of Indiana, South Bend Division
This case arose when Defendant Jacob Salamon, a police officer for the City of Loveland, Ohio, arrested Plaintiff Amanda Caton, an off-duty police officer for the City of Cincinnati, Ohio, for operating a vehicle when intoxicated (“OVI”). Plaintiff Patrick Caton, Amanda Caton’s husband and also an off-duty police officer for the City of Cincinnati, was a passenger in the vehicle when Amanda Caton was pulled over and arrested, and he was present when Officer Salamon later dropped off Amanda Caton at their home. The Catons have sued Officer Salamon, former Loveland Police Chief Dennis Rahe, Officer Shawn Parks, and the City of Loveland for violating their civil rights.
Joseph Suhre is the owner and principal of Suhre & Associates DUI and Criminal Defense Lawyers. Suhre has dedicated his practice to the defense of OVI cases and other criminal offenses. Suhre has over 20 years of criminal defense experience and an additional 5 years of experience as a police officer. He has handled hundreds of DUI cases before dozens of judges in numerous counties. Because of this, Joe is uniquely qualified to defend his clients against DUI and criminal charges.
As an attorney, he completed training in OVI detection through courses with the Nation Highway Traffic Safety Administration (“NHTSA”) and Advanced Roadside Impaired Driving Enforcement, both likely more than fifteen years ago.
Tony Corroto served the City of Atlanta Police Department as a police officer for 17 years, spending 14 of them as a senior police officer assigned to the driving under the influence (DUI) task force. He specialized as a standardized field sobriety test (SFST) and drug recognition expert (DRE) instructor. He taught 46 police recruit classes DUI enforcement at the Atlanta Police Academy (APA).
Plaintiffs first argued that Suhre is not qualified to testify as a police practices expert. The Court agreed with Defendants that Plaintiffs framed the issue too broadly. The issue is whether Suhre is qualified to offer expert testimony on police practices involving investigations into potential instance of OVI by applying the NHTSA’s OVI-detection standards.
Though Suhre has not offered expert testimony in a court of law before, he has been retained to instruct about NHTSA standards by the publishing industry, attorneys, and law enforcement organizations. The Court finds that he is qualified with specialized knowledge in the application of NHTSA standards that “will help the trier of fact to understand the evidence or to determine a fact in issue.
First, Plaintiffs criticized Suhre’s statement in his expert report that Officer Salamon observed what the NHTSA refers to as a “vigilance problem” when there was “a 4-second delay between the [traffic] light turning green and Caton’s vehicle proceeding forward.” The NHTSA Visual Detection publication does not define what amount of time is “normal” versus “unusually long.” With no further guidance, the Court cannot say that Suhre’s opinion applying his own judgment to the NHTSA standard is unreliable.
Elsewhere, Suhre opines that Officer Salamon had probable cause to pull Amanda Caton over for traffic violations. However, the Court held that Suhre’s opinion that she did violate a certain traffic provision will not help a factfinder “determine a fact in issue” for purposes of Rule 702(a).
Second, Plaintiffs objected that Suhre cannot testify about whether Officer Salamon had reasonable suspicion or probable cause to pull over Amanda Caton for a violation. The Court agreed because Suhre’s opinions constituted inadmissible legal conclusions.
The Court also excluded Suhre from testifying on the application and meaning of statutes and case law generally.
Tony Corroto
Defendants do not challenge his Corroto’s qualifications to offer expert testimony. Rather, they moved to strike his testimony to the extent that he states in his report that Officer Salamon did not have probable cause to stop or arrest Amanda Caton. The Court already held in regard to Suhre’s testimony that an expert witness cannot testify about whether probable cause exists.
Therefore, the Court will strike and not consider Corroto’s report to the extent that he opines that Officer Salamon did not have probable cause to stop or arrest Amanda Caton. However, the Court refused to exclude Corroto’s report or testimony in full because of the improper opinion about probable cause.
Held
The Court limited the opinions of both Joseph Suhre and Tony Corroto. Suhre will not be excluded from testifying because he is unqualified to give opinion testimony under Federal Rule of Evidence 702. Corroto will not be permitted to testify about whether probable cause existed to stop or arrest Amanda Caton, but his report will not be otherwise excluded.
Key Takeaways:
Expert witnesses may not testify to legal conclusions or to the applicability or interpretation of a particular statute or regulation. Courts are “capable” of interpreting statutes “without the assistance of an expert.
Although an expert’s opinion may ’embrace an ultimate issue to be decided by the trier of fact, the issue embraced must be a factual one.
Courts permit experts to testify about discrete police-practice issues when those experts are properly credentialed and their testimony assists the trier of fact.
Case Details:
Case Caption:
Caton V. Salamon
Docket Number:
1:22cv345
Court:
United States District Court for the Southern District of Ohio, Western Division
In February 2019, Jose Banda Pichardo (“Pichardo”) died by suicide while in custody at the Imperial County Sheriff’s Department Regional Adult Detention Facility (“ICRADF”). California Forensic Medical Group is a medical provider that contracted with Imperial County to provide medical and mental health care to inmates at ICRADF. Pichardo’s parents, Jose Trejo and Susana Banda, assert causes of action against CFMG for negligence and wrongful death arising from their son’s suicide.
CFMG’s expert, Kimberly Pearson, testified that “[d]espite utilizing nationally accepted standards and procedures related to suicide prevention, not every suicide (jail or otherwise) is preventable.”
Plaintiffs filed a motion to preclude Pearson from testifying that not all suicides are preventable.
Nursing Expert Witness
Kimberly Pearson has been serving in the healthcare industry both as a Registered Nurse and Manager/Administrator for over 40 years in various settings holding progressive management, leadership, and operational roles in multiple states. She recently served as the Deputy Agency Director for the Orange County Health Care Agency — Correctional Health Services division since 2010.
With an initial education as a Registered Nurse, her clinical experience includes Emergency, Trauma, Critical Care, and Flight medicine.
Her recent role as the Deputy Agency Director for Correctional Health Services included executive administrative oversight for Adult Correctional Health Services, Juvenile Health Services, and the Orange County Conditional Release program for mentally ill offenders.
Plaintiffs contended Pearson’s opinion that not all suicides are preventable is “a conclusory statement without factual basis in support” that “is nothing more than a regurgitation of someone else’s article and theories on suicide prevention.”
Whether Pichardo’s death was preventable is a central issue in the case. Plaintiffs’ expert will argue that it was, and CFMG is entitled to present evidence and argument to the contrary.
The Court recognizes that that the opinion at issue, i.e., not all suicides in jail are preventable, is a general statement not specifically tied to Pichardo. But testimony that not all suicides are preventable nevertheless has a “tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” In other words, the testimony is relevant, and any perceived weaknesses in Pearson’s opinion are the proper subject of cross-examination and closing argument.
Plaintiffs did not specifically argue that Pearson’s testimony is not reliable, but they do contend that the testimony is based on hearsay. However, “under Rule 703, an expert may rely on hearsay ‘[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.’”
Pearson bases this opinion, in part, on statistics for jail suicides, and Plaintiffs did not challenge that this statistical information is reasonably relied upon by experts in the field.
Held
The Court denied Plaintiffs’ motion to preclude Kimberly Pearson from testifying that not all suicides are preventable.
Key Takeaway:
Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion. The Court recognizes that that the opinion at issue, i.e., not all suicides in jail are preventable, is a general statement not specifically tied to Pichardo. But testimony that not all suicides are preventable nevertheless has a “tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Therefore, any perceived weaknesses in Pearson’s opinion are the proper subject of cross-examination and closing argument.
Case Details:
Case Caption:
Trejo Et Al V. County Of Imperial Et Al
Docket Number:
3:20cv1465
Court:
United States District Court for the Southern District of California
This case arises out of Plaintiffs’ employment with McKesson and their allegation that McKesson discriminated and retaliated against them by denying them religious accommodations to McKesson’s COVID-19 Vaccination Protocol and terminating their employment. Plaintiffs sought damages which, including lost wages, in the form of back pay and front pay, and fringe benefits.
Plaintiffs retained Larry D. Stokes, Ph.D., of Beta Business Consulting, LLC, as an expert witness to provide his opinions of the economic losses purportedly suffered by each Plaintiff.
Defendants claimed that Stokes’ reports and testimony are inadmissible because his lack of knowledge reveals them to be wholly unreliable.
Economics Expert Witness
Larry D. Stokes is a forensic economist with over 40 years of experience in litigation related economics. He founded the Beta Business Consulting, LLC which provides provides economic analysis reports, research and expert testimony for economic damage claims involving personal injury, wrongful death, employment (loss of earning capacity) and more.
Stokes based his opinions on Plaintiffs’ earnings history, including the value of fringe benefits. To begin with, economists typically rely on W-2’s, personal information supplied by Plaintiffs in answers to economists’ questionaries, and employers’ information about compensation.
The Court found that Defendants’ motion lists seven items Stokes did not recall at his deposition. However, Defendants have not shown that these seven items are information essential to Stokes’ opinions. For example, Defendants argue that “Stokes did not know how he was retained for this case or when he began working on the analysis,” but fail to explain how this information is necessary foundation for his opinions.
Defendants have not addressed the facts and data Stokes used in reaching his opinions. That he did not remember at his deposition seven questions asked by Defense counsel might make for fruitful cross-examination, but the Court held that his failure to remember when he was employed or what information was requested of Plaintiffs does not show he lacked reliable data.
Defendants also argued that Stokes’ opinions should be excluded at trial because he “conceded that there were multiple errors in his initial reports at least one of which was a ‘pretty obvious mistake’ which ‘had a substantial impact.”’ However, the Court found that Stokes’ initial reports were revised, and the conceded errors were corrected.
The motion also sought exclusion of Stokes’ opinions from trial because he relied on unverified information provided by Plaintiffs or their counsel. However, the Court held that there is no basis to expect an expert to personally interview Plaintiffs and verify their history. To the contrary, Fed. R. Evid. Rule 703 specifically authorizes experts to base opinions “on facts or data in the case that the expert has been made aware of or personally observed.”
Held
The Court denied the Defendants’ motion to strike the expert testimony and report of Plaintiffs’ expert witness Larry D. Stokes.
Key Takeaways:
Expert reports are hearsay and normally not admitted at trial, absent stipulation. Experts are expected to be prepared to discuss their opinions and the basis of their opinions when they are deposed. But if an expert does not remember how the data was gathered or who prepared what portion of a report, his opinion is not discarded if the report sufficiently details the information he relied on in reaching his opinions. Typically, the expert is allowed to review his report and refresh his memory.
That an expert makes errors that are later corrected in supplemental reports does not show that the expert’s opinions lack sufficient facts or data. A few inconsequential errors in an initial report that was later revised to correct the errors do not warrant the exclusion of the expert’s opinions.
