Expert Witness Profiler

Tag: Reliable

  • Social Work Expert Was Not Allowed to Opine on Trauma and Mental Health

    Social Work Expert Was Not Allowed to Opine on Trauma and Mental Health

    This matter concerns Claudia Arias’ removal from the University of Washington Tacoma Bachelor of Arts in Social Work (“BASW”) Program.

    Defendants filed motions to exclude Plaintiff’s expert witnesses Allison Osborne and Merrill A. Cohen.

    Social Work Expert Witness

    Allison Osborne, MSW, LICSW, SUDP is a forensic social worker with almost a decade of experience working with clients that are justice involved. Since January 2022, Osborne has been employed as an owner, clinical social worker, and substance use disorder professional at Forensic Social Work Services in Mount Vernon, Washington.

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

    Vocational Rehabilitation Expert Witness

    Merrill Ann Cohen, MC, CRC, CLCP has spent over thirty years of experience as a vocational consultant. She has spent nearly twenty of those years as a vocational consultant and life care planner with Strategic Consulting Services, Inc. In her role with Strategic Consulting Services, Inc., Cohen provided vocational rehabilitation assessments and conducted earning capacity analyses.

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

    Discussion by the Court

    A. Osborne’s Opinions

    Defendants sought to exclude Osborne’s opinions because “(1) she impermissibly offers legal opinions; (2) her opinions are not based on reliable principles or methodology; (3) she failed to disclose the required materials in violation of Fed. R. Civ. P. 37(c)(1); and (4) her opinions are irrelevant and would be substantially more prejudicial than probative.” The Court held that each of Osborne’s three conclusions—on the First Amendment, on Social Work Ethics and Standards, and on Trauma and Mental Health—is excludable.

    Analysis

    To begin with, Osborne’s opinion that “the Defendants in this case ultimately infringed upon Plaintiff’s freedom of speech by denying her ability to speak freely while in the process of learning through muting information that demonstrated Plaintiff was not being discriminatory,” amounts to an impermissible legal opinion.

    Moreover, as to Osborne’s opinion that Defendants “did not adhere to social work ethical standards while interacting with” Plaintiff, such opinion is irrelevant as to Plaintiff’s remaining claims. Plaintiff’s First Amendment claim turns on whether Defendants ultimately removed Plaintiff from the BASW Program based on defined professional standards or based on personal disagreements.

    As for Osborne’s opinion that Plaintiff suffered from adjustment disorder with mixed anxiety and depressed mood, Plaintiff failed to properly disclose all evidence relied upon and all documents supporting these opinions. The failure to fully disclose expert opinions as required by Federal Rule of Civil Procedure 26(a) results in exclusion “unless the failure was substantially justified or is harmless.”

    Osborne did not produce her handwritten notes from her interview of Plaintiff and did not produce the empirical screening tool forms she completed in evaluating Plaintiff. Osborne also did not produce the notes she took while reviewing the depositions of various witnesses.

    Notwithstanding, Plaintiff sought to excuse her failure to timely produce various documents by arguing she appropriately supplemented her expert disclosure under Rule 26(e)(2) on March 11, 2026. However, the supplemental disclosure did not obviate the harm caused by the delay as the disclosure occurred after Osborne’s deposition and after the discovery cutoff, which eliminated Defendants’ ability to engage in further discovery.

    Finally, Osborne’s opinions also are not based on sufficient data or facts. Osborne incorrectly asserted that Plaintiff was removed from a certain course when she was in fact allowed to continue and passed the course.

    B. Cohen’s Opinions

    Defendants asserted that Cohen’s opinions should be excluded because “(1) she relied upon insufficient or incomplete data, (2) her opinions are purely speculative, and (3) her opinions are not based on reliable principles or methodology.”

    Analysis

    Cohen conducted a “vocational assessment and/or prepared a Life Care Plan” for Plaintiff. In preparing an assessment, Cohen normally requests discovery materials, employment history, medical records, earning records, and educational records for every client, although she noted that not all clients will have all these types of materials and not all materials will be relevant in every matter. Of these, Cohen reviewed only Plaintiff’s educational records.

    The Court found that information about a person’s employment, earning history, and discovery materials are relevant to performing a vocational assessment. And although in certain instances such information may not be required, Cohen failed to identify why the information she requested, but did not receive or review, was unnecessary to formulate her opinions in this case.

    In addition, Cohen’s opinions are unduly speculative because Cohen assumed what Plaintiff’s career path could have been had Plaintiff graduated from the BASW program. Cohen identified that upon graduation Plaintiff would (1) apply for and be accepted into a masters of social work program, (2) attend and complete that program, (3) take and pass the social worker licensing examination, (4) complete 3,000 to 4,000 hours of supervised social work, and (5) then apply for and obtain a full-time employment earning approximately $80,000 annually. First, it is impossible to determine with any reasonable degree of certainty that Plaintiff would follow Cohen’s assumed educational and employment path. And second, Plaintiff repeatedly emphasized that her damages were based on the loss of her bachelor’s level degree, which contradicted the educational and employment future Cohen assumed.

    Finally, Cohen’s report is not based on a reliable application of principles or methods. While Cohen identified tests such as RAPEL and VADRE, she did not identify how those tests were applied in this case.

    Held

    The Court granted Defendants’ motions to exclude Allison Osborne and Merrill Cohen.

    Key Takeaway

    The Court will not permit supplemental expert disclosure when what is set forth in the supplemental disclosure is the information, reasoning, and opinions that Rule 26 requires be disclosed in the critical initial disclosure. The duty to supplement did not provide the opportunity to add information that should have been initially provided under Rule 26(a).

    Case Details:

    Case Caption: Arias V. University Of Washington Tacoma
    Docket Number: 3:25cv5079
    Court Name: United States District Court, Washington Western
    Order Date: May 13, 2026
  • Construction Expert Allowed to Opine on Causes of Project Delay

    Construction Expert Allowed to Opine on Causes of Project Delay

    P&E is a Kansas-based contractor who entered into a design-build contract with WI RNG Hub North, LLC, for a renewable natural gas production facility in Gillet, Wisconsin (the “Project”) to be completed by February 27, 2023. The Project included construction of two buildings to house process equipment for producing renewable natural gas from dairy cow manure and dryer equipment for producing a fiber by-product. To complete the Project, P&E entered into subcontracts with various companies, including Crescent Power, Bayland Building, Inc. (“Bayland”), and Air Liquide Advanced Technologies U.S., LLC (“Air Liquide”). P&E retained Crescent Power as a material supplier to deliver electrical-power equipment to the Project location, including switchboards and MCCs.

    The Project faced several schedule delays and was completed 175 days behind schedule. Relevant here, P&E alleged that Crescent Power failed to deliver the MCCs on time under their contract. P&E alleged that Crescent Power’s late delivery, combined with its other subcontractors’ contractual failures, significantly delayed the Project’s overall com.

    P&E retained Christopher J. Smocke to review the Project, including its five-page critical path schedule, and offer opinions on the causes of the Project’s delays and resulting damages to P&E. Regarding Crescent Power, Smocke opined that it delivered the MCCs 69 days late, is 41% at fault for the first 140 days of the delay to the Project’s completion, and is responsible for $762,415 of P&E’s total damages.

    Crescent Power filed a motion to exclude Smocke’s opinions under Rule 702 of the Federal Rules of Evidence.

    Construction Expert Witness

    Christopher J. Smocke has worked as a Senior Project Manager, Project Executive, Vice President, and President in various construction companies, for general contractors, and for construction owner’s representative firms. In these roles, he managed budgets and organized schedules for several multi-million-dollar projects. He has also conducted informal mediations where he allocated responsibility between multiple parties in construction project disputes. Further, Smocke has been retained as an expert in three arbitrations and two lawsuits, offering opinions on construction delays and resulting damages.

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

    Discussion by the Court

    A. Qualifications

    First, Crescent Power argued that Smocke lacked the requisite qualifications to offer his opinions. Crescent Power recognized that Smocke has over 50 years of experience in construction project management, but argued that he lacked specific experience or education in conducting forensic schedule analyses and allocating fault pursuant to Association for the Advancement of Cost Engineering (“AACE”) standards.

    The Court concluded that P&E met its burden to show that Smocke is sufficiently qualified based on his significant experience in construction project management.

    B. Reliability of Methodology

    Crescent Power argued that Smocke’s opinions are ipse dixit because he did not conduct a forensic analysis of impacts on the Project’s critical path pursuant to one of the AACE or Society of Construction Law’s prescribed methods.

    In his report, Smocke identified which delays he opined affected the overall completion of the Project based on his review of the case and his experience. For example, he discussed how Crescent Power’s late delivery of MCCs impacted the Project’s overall completion because the switchboards could not be powered up without them, holding up work in both Project buildings and all systems for renewable natural gas production. As P&E pointed out, his discussion mirrors both AACE and Society of Construction Law principles on disruption and delay to construction projects.

    Crescent Power also identified what it considered as “blatant errors” in Smocke’s opinions to demonstrate that his methodology is unreliable. To begin with, Crescent Power argued that Smocke added days to the calendar to reach his opinion that 140 days of delay should be apportioned between Crescent Power, Bayland, and Air Liquide. P&E asserted that Crescent Power simply misunderstood Smocke’s testimony regarding the 140 days. Crescent Power also argued that Smocke failed to consider other delays not caused by Crescent Power in his analysis, but P&E asserted that Smocke correctly considered other delays.

    The Court is concerned, however, with Smocke’s methodology for allocating fault and damages between P&E’s subcontractors. To do so, Smocke took the number of days he determined that Crescent Power missed its required delivery dates (69) and divided that number by the total of late delivery days he determined between Crescent Power, Bayland, and Air Liquide (168) to allocate a percentage of fault to Crescent Power (41%) and ultimately conclude that Crescent Power is responsible for $762,415 in damages.

    C. Sufficiency of Underlying Facts & Data

    Crescent Power also challenged the sufficiency of the facts and data underlying Smocke’s opinions. To begin with, Crescent Power argued that Smocke’s deposition testimony contradicted his opinion assigning 69 late delivery days to Crescent Power. This argument is similar to Crescent Power’s concern over Smocke’s assignment of 140 Project delay days between Crescent Power, Bayland, and Air Liquide. Likewise, the Court reached a similar conclusion and determined that Crescent Power’s concern goes to weight as opposed to admissibility and can be sufficiently addressed on cross-examination.

    Second, Crescent Power again argued that Smocke’s opinion is unreliable because he did not conduct a formal Critical Path Methodology (“CPM”) analysis to establish that the MCCs were on the critical path to the Project. CPM is a a term of art for a method of scheduling and administering construction contracts, and its common use in resolving disputes over excusable-delay claims. The Court also rejected this argument.

    Third, Crescent Power challenged Smocke’s allocation of fault and damages between P&E’s subcontractors on sufficiency grounds two ways: (1) he failed to independently evaluate P&E’s alleged damages; and (2) his allocation was purely speculative and unhelpful to the jury. The Court had already determined that P&E failed to establish that Smocke used a reliable methodology to allocate fault and damages between P&E’s subcontractors.

    Held

    The Court granted in part and denied in part Crescent Power’s motion to exclude the testimony of Christiopher Smocke.

    Key Takeaway

    P&E failed to address Smocke’s formula for allocating fault entirely, let alone explain how it is reliable under Daubert. Because P&E failed to establish this methodology is reliable, the Court did not not permit Smocke to testify to his opinions allocating fault and damages between P&E’s subcontractors based on his self-created formula.

    Case Details:

    Case Caption: P&E Solutions, LLC V. Crescent Power Systems, Inc.
    Docket Number: 6:24cv1209
    Court Name: United States District Court, Kansas
    Order Date: May 08, 2026
  • Fire Investigation Expert Was Not Allowed to Opine on the Grill Installation

    Fire Investigation Expert Was Not Allowed to Opine on the Grill Installation

    This case arises from a fire that occurred on April 13, 2020 at the Nashville home of Ethan and Ashley Colclasure. The Colclasures’ home, at the time, was insured by a policy (“Policy”) issued by Plaintiff Central Mutual Insurance Company (“CMIC”). Pursuant to the terms of the Policy, CMIC paid a substantial sum to the Colclasures to reimburse them for the costs incurred in repairing the damage caused by the fire. CMIC brought this action as subrogee of the Colclasures against Defendants Ferguson Enterprises, LLC, Ferguson U.S. Holdings, Inc., Ferguson-Showroom No. 907, and Ferguson Enterprises, LLC No. 20 (referred to collectively herein, in the singular, as “Ferguson” or “the Defendant”), to recover the sums it paid to its insureds.

    Ferguson supplied and installed an outdoor gas grill, the Superior Equipment Solutions d/b/a Artisan Grills Model No. ARTP-36 (the “grill”), in the outdoor patio/lanai area of the house.

    In April 2020, Ethan Colclasure used the grill to sear steaks. Basically, there is no dispute that Ethan Colclasure neglected to turn the grill off, causing the fire that led to catastrophic damage to the home.

    The Plaintiff identified as retained experts both Jerry R. Carter, a fire scene origin and cause investigator, and Randy M. Grundy, an executive general adjuster and claims management professional and expert in evaluating catastrophic residential property damage claims. Defendants, however, filed a motion to exclude the testimony of Plaintiff’s retained experts.

    Fire Investigation Expert Witness

    Jerry R. Carter is an International Association of Arson Investigators Certified Fire Investigator, IAAI Evidence Collection Technician, IAAI Certified Instructor, National Fire Protection Association Certified Fire Protection Specialist, National Association of Fire Investigators Certified Fire and Explosion Investigator, and NAFI Certified Fire Investigator Instructor who performs origin and cause investigations of residential, commercial, and industrial properties.

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

    Claims Handling Expert Witness

    Randy Mark Grundy is a highly experienced Executive General Adjuster and claims management professional with expertise in employee dishonesty, extra expense claims, heavy equipment, commercial property, and inland marine transportation.

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

    Discussion by the Court

    A. Exclusion of Carter’s Testimony

    Ferguson argued, first, that Carter’s testimony must be excluded because it is neither relevant nor reliable, insofar as his opinions are not based on sufficient facts or data, are not the product of reliable principles and methods, and rely entirely on “anecdotal evidence and improper extrapolation.”

    Alternatively, the Defendant contended that Carter’s testimony should be excluded under Rule 37(c), based on the Plaintiff’s failure to comply with Rule 26(a)(2)(B), because the opinions in his expert report are not accompanied by the basis and reasons for each opinion or the facts and data considered in forming each opinion.

    Regarding the latter argument, the Court observed that Carter’s expert report was clearly deficient, insofar as it merely pronounced Carter’s conclusions without providing any indication of how he reached them. That failure was harmless, however, because the Defendant deposed Carter at length regarding the bases for his opinions.

    Carter’s opinions are that (1) “the Artisan grill and insulated jacket were not installed in accordance with manufacturer’s instructions as the assembly was positioned only 2.5 inches from the combustible wall assembly and is required to be installed 5.75 from combustible components”; (2) “had the grill and jacket assembly been properly installed, with the required 5.75″ clearance to combustible components, the fire would not have occurred”; and (3) “even with the grill operating for more than 20 hours, had it been properly installed, the fire would not have occurred.”

    Here, although Carter claimed that he employed the “scientific method” every time he analyzes a fire and that the scientific method requires him to collect data, formulate hypotheses, and test those hypotheses , the record established that he did not test his governing hypothesis.

    The Court held that Carter’s opinions amount to no more than unsupported speculation and, as such, are inadmissible. 

    B. Exclusion of Grundy’s Testimony

    Ferguson asserted that the Plaintiff’s disclosure of Grundy as a retained expert did not comply with Rule 26(a) and that the failure is neither harmless nor substantially justified. The Defendant pointed out that, although Grundy was disclosed in the September 19, 2025 disclosure, that disclosure was not accompanied by an expert report, much less an expert report that included all of the items listed in Rule 26(a). In fact, the only document pertaining to Grundy that accompanied the disclosure was his CV.

    The Plaintiff had not shown that it complied with Rule 26(a)(2)(B) or that its failure to do so is substantially justified or harmless. This case is now scheduled for trial in less than 90 days. As a result, Ferguson’s motion to exclude the testimony of the Plaintiff’s retained expert, Randy Grundy, was granted by the Court under Rule 37(c), based on the Plaintiff’s complete failure to comply with Rule 26 and failure to show that the failure was harmless or substantially justified.

    Held

    The Court granted the Defendants’ motion to exclude the testimony of Plaintiff’s retained experts, Jerry R. Carter and Randy M. Grundy.

    Key Takeaway

    No matter how qualified Carter may be, his subjective belief—supported by nothing more than the grill’s setback requirements and his conjecture that the manufacturer must have done some testing to support those requirements—is not sufficiently reliable to be admitted.

    Case Details:

    Case Caption: Central Mutual Insurance Company V. Ferguson Enterprises, LLC
    Docket Number: 3:23cv661
    Court Name: United States District Court, Tennessee Middle
    Order Date: May 04, 2026
  • Economics Expert Was Allowed to Opine on the Value of Companionship Services

    Economics Expert Was Allowed to Opine on the Value of Companionship Services

    Plaintiff Tabria Montgomery’s father, Michael Montgomery sustained fatal injuries while operating a Bobst Mastercut 145 PER 2.0 Die-Cutter machine. She asserted claims individually on behalf of herself and her father’s estate against Defendant Bobst Group North America, Inc. (“Bobst NA”) for strict products liability, negligence, wrongful death, and survival.

    Bobst NA filed a motion to exclude the testimony of Plaintiff’s economic expert, Kristin K. Kucsma, M.A.

    Economics Expert Witness

    Kristin K. Kucsma, M.A. has worked extensively on cases involving personal injury, wrongful death, employment law, wrongful incarceration, mass torts, punitive damages and lost profits.

    She spent over 13 years teaching economics at the undergraduate and graduate level at Saint Peter’s College, Rutgers, Seton Hall and Drew Universities. Her areas of expertise include American Economic History, Applied Micro Economic Theory, banking and financial markets and corporate finance. Ms. Kucsma is an active member of the National Association of Forensic Economics and the Eastern Economics Association, a member of the American Economics Association, and a former Member of the District Ethics Committee, Office of Attorney Ethics of the Supreme Court of New Jersey. She earned a B.A., summa cum laude, in Economics from Seton Hall University, an M.A. from Rutgers University, and currently is ABD at Rutgers University.

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

    Discussion by the Court

    A. Reliability

    1. Lost Future Earnings

    Bobst NA argued that Kucsma’s selection of Montgomery’s 2020 earnings as his “projected earnings base” is unsupported and “driven by assumptions supplied by counsel rather than by verifiable employment data.”

    It argued that 2020 was a “marked spike” in earnings because Montgomery worked significant amounts of overtime as a feeder that he never did as a die cutter operator. Bobst NA also highlighted that Kucsma could not state when Montgomery changed roles or how long he was out of work in 2021 during her deposition.

    The Court found that Kucsma’s opinion on Montgomery’s lost future earnings is reliable and may be offered to a jury. She bases it on her significant knowledge, experience, and review of the record, including Montgomery’s paystubs from November 2016 until February 2022, his federal tax documents from 2017 to 2022, and responses to a general “preliminary fact-finding questionnaire.”

    Bobst NA repeatedly contended that Kucsma’s deposition testimony shows that she relied on Plaintiff’s counsel’s representations rather than the objective record. In any event, Bobst NA cited no authority for the proposition that an economics expert may not partially rely on an attorney’s representations.

    Bobst NA also attacked Kucsma’s conclusions as inconsistent with the record. It maintained that the work detail report shows Montgomery worked less overtime as a die cutter operator than as a feeder and only worked as a feeder in 2020. These are not “significant errors” that go to the admissibility of Kucsma’s opinion. They go to its weight.

    Kucsma can rely on Montgomery’s 2020 earnings because that figure is not “substantially higher than his average annual income.” While a jury may find that “an average or median of Montgomery’s earnings over several years is a more sensible approach” to calculate future earnings loss, Kucsma’s use of Montgomery’s last full year of earnings did not render her opinion unreliable for Rule 702 purposes.

    2. Intangible Damages

    Bobst NA argued that Kucsma’s opinions regarding damages for loss of companionship and advice-related services are unreliable and unsupported.

    It maintained that Kucsma provided “no analysis” or peer-reviewed studies showing that parental interaction is economically equivalent to hourly wages for paid companions, social workers, and financial advisors.

    In rendering her opinion, Kucsma relied on certain facts and assumptions about Montgomery, his adult children, and their relationships. There is no indication that Kucsma exaggerated, falsified, or misinterpreted the children’s responses. Indeed, she testified that Montgomery’s children had the opportunity to review the information in her report for its accuracy. Kucsma testified that she followed “the generally accepted method among economists” to attribute a pecuniary value to the intangible losses for which Plaintiff seeks to recover.

    The Court held that Kucsma has “good grounds” for her opinion based on her professional experience as a forensic economist and her testimony that her application of a services-based valuation framework is generally accepted within the relevant professional community.

    B. Fit

    Bobst NA also argued that Kucsma’s intangible damages opinion will not assist the jury, i.e., it does not fit, because it “invades the province of the jury.”

    The Court found that Kucsma’s explanation of the pecuniary value of advice, counsel, and companionship services will be “helpful in providing the jury with guidance and in avoiding the potential for undue speculation.” Specifically, her testimony regarding the hourly rates for companionship and advice-related services will assist the jury in assigning value to Plaintiff’s intangible losses.

    However, testimony concerning the frequency with which Montgomery provided such services is more appropriately elicited from his children themselves. Likewise, Kucsma’s presentation of specific damages calculations—derived from mathematical formulas incorporating the average hours of services rendered—would not assist the jury in assessing Plaintiff’s damages. As such, “there is no need for her expert testimony on these issues.”

    Held

    The Court granted in part and denied in part Bobst NA’s motion to exclude the testimony of Kristin K. Kucsma. Bobst NA’s motion is granted to the extent it sought to exclude Kucsma’s opinions as to the number of hours that Montgomery provided advice, counseling, and companionship services to his children, as well as her calculation of Plaintiff’s damages based on those estimates. Bobst NA’s motion is denied to the extent that it sought to exclude Kucsma’s opinions about Montgomery’s lost future earnings and the pecuniary value of advice, counseling, and companionship services.

    Key Takeaway

    It is within the trial court’s discretion to determine when a Plaintiff’s testimony about the decedent’s services will suffice and when an expert’s further testimony will aid the jury to make a reasonable evaluation of those services. Where such testimony is admitted, it should be followed by a charge that the expert’s opinion is only advisory, and that the jury should make its own determination of the economic value of decedent’s lost services.

    Please refer to the blog previously published about this case:

    Biomechanics Expert Allowed to Opine on the Cause of Death

    Pathology Expert Allowed to Opine on Pain and Suffering

    Case Details:

    Case Caption: Montgomery V. Bobst Mex SA
    Docket Number: 2:24cv367
    Court Name: United States District Court, Pennsylvania Eastern
    Order Date: April 30, 2026
  • Microbiology Expert Not Allowed to Opine on Performance Ratings

    Microbiology Expert Not Allowed to Opine on Performance Ratings

    This action arises from Jennifer Hailes’ claim of retaliation for prior EEO protected activity under Title VII of the Civil Rights Act of 1964. Hailes challenged the administrative grant of summary judgment in favor of the VA in EEOC Case No. 532-2023-00016X for Hailes’ claims of retaliation for protected activity in the form of a “fully successful” performance rating for Fiscal Year 2021 and an admonishment by her supervisor on January 4, 2022.

    Defendant Secretary of the Department of Veterans Affairs filed a motion to exclude two expert reports of Tracie Ellis-Reid and Steven N. Emancipator offered by Plaintiff Jennifer Hailes.

    Microbiology Expert Witness

    Tracie Ellis-Reid is a board-certified medical technologist in the discipline of microbiology. She worked for over 30 years in Pathology & Laboratory Medicine Services at the Department of Veterans Affairs.

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

    Pathology Expert Witness

    Steven N. Emancipator is Board-certified in anatomic and clinical pathology and in immunopathology. He currently consults with clinical and research laboratories and with principal investigators.

    Previously, with the College of American Pathologists, Emancipator served on the Council on Accreditation, as a state commissioner, a master laboratory inspector, and as director of a clinical laboratory certified by the College. For 35 years, he served as a professor of pathology as Case Western Reserve University and for the last nine years he has been an emeritus professor. From 2006 through 2017, he was chief of Pathology & Laboratory Medicine Service, at the Veterans Affairs hospital in Cleveland.

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

    Discussion by the Court

    1. Tracie Ellis-Reid

    Until 2020, Ellis-Reid was Hailes’ supervisor and the person who prepared her performance evaluations. Ellis-Reid proposed to testify about Hailes’ “annual performance rating” for fiscal year 2021.

    Indeed, Ellis-Reid’s report is composed of an element-by-element critique of Hailes 2021 performance review, with an assessment of exhibits used to support the review, and a comparison with a co-worker.

    Ellis-Reid proposed to determine, with reference to certain agency documents, whether the Secretary “violated laws and regulations regarding patient safety, the Plaintiff’s Title VII right, and adverse disciplinary action (post-protected activity reprisal) in the form of the lowering of the Plaintiffs FY21 annual performance rating.” There are a few problems with this proposal, starting with the fact that Ellis-Reid doesn’t claim to be a legal professional. So she’s not in a position to offer an opinion about whether anyone unlawfully retaliated against Hailes. But even if she were, it’s the Court’s job to determine what the law is and it’s the jury’s job to determine whether a violation occurred.

    Even putting these concerns aside, the fact that a witness might qualify as an expert does not, as a result of that expertise, mean that her opinion is admissible. The expert’s opinion must still otherwise be helpful to the trier of fact.

    The Secretary conceded that—even though Hailes offered Ellis-Reid as a non-scientific expert in agency performance evaluations—Ellis-Reid’s opinions in “the laboratory specimen testing portions” of Ellis-Reid’s report are admissible.

    The remaining three sections of Ellis-Reid’s report discuss Hailes’ performance in customer service, safety, and education and employee development. By comparing Hailes’ performance to the criteria set out in collective bargaining agreement provisions and Veterans Affairs policies and procedures, Ellis-Reid concluded that she disagreed with the overall ratings that Hailes received in these areas. But as the Secretary pointed out, an expert isn’t required to say whether Hailes’ ratings in these areas were appropriate.

    2. Steven N. Emancipator

    Emancipator proposed to review acts of Congress, provisions of the Code of Federal Regulations, certain accreditation standards, and the Department of Veterans Affairs Labor Management Relations master agreement.

    For starters, Emancipator’s stated objective is to make sure that Hailes meets her burden of proof, “establish undeniable facts” that Hailes “received unlawful, improper, or conflicting orders,’ and “prove” certain other matters. In other words, Emancipator proposed to offer an “advocacy-based interpretation” rather than one based on his expertise.

    Emancipator said that “expert review of Microsoft Outlook email correspondences of the Plaintiff and P&LMS management officials is necessary to show that notifications of unlawful, improper, and/or conflicting orders from the Plaintiff went unanswered and unresolved, which is an imminent threat to patient care and safety.” But the jury doesn’t need an expert to say whether emails went unanswered and unresolved, so testimony on this issue wouldn’t be helpful.

    Emancipator also said that his consideration and opinion about evidence supplied to him is “necessary to determine if the Agency violated laws and regulations regarding patient safety, and regarding the Plaintiff’s right to refuse such orders that would require the Plaintiff to violate applicable laws, that led to a lower performance rating of bench work and records & reporting for the Plaintiff’s 2020 fiscal year annual performance rating.”

    The Court found that Emancipator did not discuss the evidence in this case that he used to base his opinion. He’s basing his conclusion on “the best of his recollection and understanding” as the VA Medical Center Director, a position which, according to his resume, he last held in 2017.

    Nevertheless, the portion of Emancipator’s report that details the duties of a lab director is helpful and relevant.

    Held

    The Court granted in part and denied in part the Secretary’s motion to exclude the reports of Tracie Ellis-Reid and Steven Emancipator.

    It should be noted that Emancipator and Ellis-Reid neglected to state all the cases in which they had testified as experts in the last four years, and their reports did not state their compensation “for their study and testimony in this case.” If Hailes wishes to rely on Ellis-Reid’s and Emancipator’s opinions about laboratory testing and laboratory director duties, respectively, she must provide to the Secretary supplemental reports from Ellis-Reid and Dr. Emancipator with the information required by Rule 26.

    Key Takeaway

    There is a “subtle” but “nonetheless important” distinction between “opining on the ultimate question of liability” — which is impermissible — and “stating opinions that suggest the answer to the ultimate issue or that give the jury all the information from which it can draw inferences as to the ultimate issue” — which is permissible.

    Case Details:

    Case Caption: Hailes V. Secretary of Department of Veterans Affairs
    Docket Number: 1:24cv293
    Court Name: United States District Court for the Northern District of Ohio, Eastern Division
    Order Date: April 30, 2026
  • Biomechanics Expert Allowed to Opine on the Cause of Death

    Biomechanics Expert Allowed to Opine on the Cause of Death

    Plaintiff Tabria Montgomery’s father, Michael Montgomery sustained fatal injuries while operating a Bobst Mastercut 145 PER 2.0 Die-Cutter machine. She asserted claims individually on behalf of herself and her father’s estate against Defendant Bobst Group North America, Inc. (“Bobst NA”) for strict products liability, negligence, wrongful death, and survival.

    Plaintiff sought to exclude the opinions of Bobst NA’s expert Alfred P. Bowles II, M.D.

    Biomechanics Expert Witness

    Alfred Palmer Bowles II, M.D. has a Bachelor of Science in mechanical engineering and is a Doctor of Medicine who was a licensed physician for over twenty-five years in the fields of general medicine and general surgery. He served in the United States Air Force Reserve for twenty-one years as a credentialed general surgeon and flight surgeon. He is also an accredited traffic accident reconstructionist. Bowles received post-graduate education in trauma medicine, accident reconstruction, and biomechanics applied to the investigation of impact trauma.

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

    Discussion by the Court

    Plaintiff contended that Bowles is not sufficiently qualified to offer his opinions regarding cause and manner of death and the duration of conscious pain and suffering because he is primarily a biomechanics expert and not a forensic pathologist.

    As Bobst NA explained, Bowles has over twenty-four years of experience in the fields of general surgery, general medicine, and emergency medicine. Bowles also testified that he has previously provided professional expert opinions in litigation matters regarding the duration of conscious pain and suffering.

    He testified that “the duration of conscious activity . . . is where my work starts and ends, with the understanding that once your conscious activity has ended, then you’re no longer able to perceive or process . . . the thoughts or the feelings of . . . pain.” He explained that in the cases that he has worked on, “usually there is some allegation that relates to something or a concept that is like pain or suffering.”

    Given his experience and training, the Court found that Bowles satisfied the liberal standards for expert qualification even if he is not the most qualified expert to opine on the subjects at issue.

    Held

    The Court denied the Plaintiff’s motion to exclude the opinions of Defendant Bobst North America, Inc.’s expert Alfred Bowles.

    Key Takeaway

    A medical degree is not a prerequisite for qualification as an expert capable of testifying regarding the cause of a person’s injuries. In other words, an expert need not possess a particular medical specialty to testify regarding the cause of Montgomery’s death or the duration of any conscious pain and suffering he may have experienced.

    Case Details:

    Case Caption: Montgomery V. Bobst Mex SA
    Docket Number: 2:24cv367
    Court Name: United States District Court, Pennsylvania Eastern
    Order Date: May 01, 2026
  • Law Enforcement Expert Allowed to Opine on Massage Business Inspections

    Law Enforcement Expert Allowed to Opine on Massage Business Inspections

    Plaintiff Dai Trang Thi Nguyen brought this action against Defendant City of San Jose and Individual Supervisor Defendants Joseph Hatfield and Rachel Roberts alleging that a former City Code Inspector William Gerry sexually assaulted and extorted Plaintiff during his code enforcement inspections of her massage business, and Defendants allowed Gerry’s conduct to occur in deliberate indifference to her rights to due process and equal protection.

    It is undisputed that former City Code Inspector Gerry repeatedly raped and extorted Plaintiff while inspecting her massage business in 2019.

    Defendants filed a motion to exclude the testimony of Officer Antonio Flores and Leonard Powell pursuant to Federal Rule of Evidence 702 while Plaintiff filed a motion to exclude the testimony of Dr. John M. Greene under Federal Rule of Civil Procedure 26.

    Law Enforcement Expert Witnesses

    Antonio “Tony” Flores has been a police officer with the San Francisco Police Department (“SFPD”) since 1982. During his career, Flores has conducted and supervised “several hundred” massage business inspections, often as many as fifty to sixty per year.

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

    Leonard Powell served as the Code Enforcement Manager, Zoning Administrator, and Deputy Building Official for Dangerous Building Enforcement for the City of Fremont from 2001 to 2020, where he supervised officers enforcing zoning, housing, sanitation, and building codes.

    As part of this role, he developed processes and managed investigations in massage business regulation and enforcement, trained and supervised officers, and implemented ethics and accountability systems.

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

    Psychiatry Expert Witness

    Dr. John M. Greene is board certified in both General and Forensic Psychiatry. He began practicing in the San Francisco Bay Area in 1997. He became a member of Stanford University’s Adjunct Clinical Faculty in 2005, and currently teaches topics on psychiatry and the law to the residents in the Department of Psychiatry at Stanford.

    With extensive training and expertise, Greene is regularly relied upon to provide expert testimony in civil and criminal cases regarding mental illness.

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

    Discussion by the Court

    Leonard Powell

    a. Helping the Jury Decide the Case

    Defendants argued that Powell’s testimony will not help the jury decide whether the City was deliberately indifferent. Powell’s report identified several “best practices” in the code enforcement industry that San Jose was not implementing at the time of Plaintiff’s injury, including: using partner systems for inspections; random supervisory audits; rotation of inspectors across industries; direct supervisory contact with regulated businesses; and formal post-action debriefs. However, during his deposition, Powell testified that he does not believe code inspectors are “likely” to extort or sexually assault people absent those “best practices.”

    The Court found that this did not disqualify Powell from testifying as an expert in this case. Although Powell declined to use the word “likely” in his deposition, he also testified there is “a high probability” that lone male enforcement officers would commit sexual assault and corruption, and that lone code enforcement officers going into massage businesses is an outdated practice because “there is a high probability” that something may go wrong.

    b. Reliability

    Defendants argued that Powell’s opinions are narrowly based on his experience in the City of Fremont and the City of San Rafael, which is insufficient to opine on industry-wide practices.

    The Court found Defendants’ arguments unpersuasive. Defendants’ assertion that Powell’s experience is limited only to Fremont and San Rafael is taken out of context and contradicted by his documented experience. As author of the California Code Enforcement Officer Standards Act and CACEO guidelines, Powell drafted California legislation and regulations that established statewide training and ethical standards for code enforcement officers, and he implemented these standards in Fremont. When asked about which other jurisdictions have implemented these standards, he listed San Rafael as one of the “other Bay Area cities” with similar practices.

    As for his reliance on external written documents, this is not necessary for Rule 702 purposes.

    Powell served as a code inspector supervisor for nearly two decades and authored the California legislation and regulation that established statewide training and ethical standards. In his report and his deposition, he has sufficiently explained how this experience formed his opinions on best practices in this industry, and he relied on that experience to opine on the facts of this case.

    c. Common Sense

    Finally, Defendants argued that Powell’s opinions on code inspector supervision amount only to “common sense,” not the opinion of an expert.

    Defendants also highlighted Powell’s testimony that his reassignment protocols are not specific to code enforcement, but rather are “kind of everywhere in life,” such as in consumer transactions: “If one person has a conflict with somebody else in a commercial setting, the general approach is, ‘Can I talk to somebody else?’”

    But, as Plaintiff highlights, Defendants’ excerpts of Powell’s deposition are taken out of context. For example, the phrase “common sense supervisory assessment” was counsel’s, not Powell’s.

    And before discussing his general observations of re-assignments in commercial settings, Powell testified that his knowledge of re-assignment practices for code enforcement inspectors was based on his experience in the code enforcement field.

    Upon reviewing the whole record, the Court found that Powell sufficiently used his expertise in the code enforcement industry, rather than common sense available to any lay person, to provide his opinions.

    Antonio Flores

    a. Expertise

    Defendants first argued that Flores lacked the code enforcement expertise necessary to offer opinions about the industry because he is a police officer, not a code enforcement inspector.

    The Court found that, despite his role as a police officer, Flores possessed the expertise required under Rule 702 to testify on code enforcement practices in massage businesses. Though Flores has never been a code inspector, Flores has worked extensively with code enforcement inspectors in his “several hundred” massage business inspections. Flores also testified that he has seen code inspectors operate with enforcement powers akin to those of police officers, particularly in the eyes of certain vulnerable communities including illicit massage business employees, such that the distinction between police officer and code enforcement investigator may be immaterial in this context.

    b. Reliability

    Next, Defendants argued that Flores lacked reliable support for his opinion that sexual assault or extortion is the likely outcome of a solo male code inspector working in massage businesses.

    Defendants contended that Flores testified he was not aware of any other instance in his experience in which a code enforcement inspector assaulted or extorted a massage business worker; he is not aware of any standards applicable to supervising code inspectors; he is not aware of any jurisdiction that actually supervises code enforcement inspectors the way he opines they should be supervised; and he could not point to any written standards that suggest re-assigning an employee about whom a complaint has been made.

    Analysis

    First, whether similar conduct has occurred in the past is not necessarily relevant to the theory of Plaintiff’s case—that the risks of exploitation were so obvious and well-known in the industry that the City did not need a pattern of similar instances to be on constructive notice.

    Second, Flores’s lack of experience in code enforcement supervision could foreseeably render some opinions on code enforcement inadmissible, but it does not render his entire testimony unreliable. Flores still sufficiently explained how he formed his opinions on code enforcement best practices based on his observations, trainings, and teachings conducted over forty-three years in the SFPD overseeing code enforcement inspections in massage businesses—including observations of employees vulnerable to exploitation, power dynamics, intimate spaces, and code enforcement investigators’ use of police powers.

    Third, as the Court noted above, written standards on re-assigning code inspectors after receiving complaints is unnecessary to forming a reliable opinion. The Court found that Flores may rely “solely or primarily on experience” because he has sufficiently explained how his experiences have led to his conclusions on code enforcement best practices in massage businesses, why that experience is a sufficient basis for his opinions, and how his experience is reliably applied to the facts of this case.

    c. Common Sense

    Finally, Defendants also argued that Flores’ opinions are no more than “common sense.” But upon review of the cited potions of Flores’ testimony, it appeared that Flores’ use of “common sense” referred to “common sense” among industry professionals.

    Upon reviewing Flores’s report and testimony in its entirety, the Court is satisfied that his opinions are based on his relevant experience, including experience conducting massage business inspections, rather than on the common sense available to any lay person.

    Accordingly, the Court also found that Flores is qualified as an expert by his knowledge, skill, experience, training, and education in the field of massage business inspections.

    John Greene

    Unlike Powell and Flores, Plaintiff did not challenge the admissibility of Greene’s opinions under Rule 702.

    Defendants first disclosed Greene during fact discovery on August 19, 2025, as the person who would conduct a psychiatric independent medical examination (“IME”) on Plaintiff. Plaintiff argued that Greene’s opinion must be excluded because Greene is not a “rebuttal” expert, but rather an initial expert, and he should have been disclosed as such prior to the deadline for initial expert disclosure on September 22, 2025.

    The Court agreed with Plaintiff that the timing of the IME and Greene’s report was unusual. However, Plaintiff has not provided any authority prohibiting the use of prior findings to rebut the opinion of an initial expert during trial. So long as Greene’s testimony only uses his IME findings to narrowly contradict or rebut the initial expert’s opinions on the same subject matter, the Court sees no reason for exclusion.

    Held

    • The Court denied the Defendants’ motion to exclude the testimony of Antonio Flores and Leonard Powell.
    • The Court also denied the Plaintiff’s motion to exclude the testimony of John Greene.

    Key Takeaway

    So long as the witness “explains how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts,” than the witness may rely “solely or primarily on experience.”

    Case Details:

    Case Caption: Dai Trang Thi Nguyen V. City of San Jose
    Docket Number: 5:21cv92
    Court Name: United States District Court, California Northern
    Order Date: January 22, 2026
  • Correctional Healthcare Expert Not Allowed to Opine on Physical Symptoms

    Correctional Healthcare Expert Not Allowed to Opine on Physical Symptoms

    This action arises from the death of Gregory Neil Davis while he was incarcerated as a pretrial detainee at the Oklahoma County Detention Center. Plaintiff, as special administrator of the estate of Davis, alleged that numerous Jail and Medical Defendants acted with deliberate indifference to Davis’ serious medical needs in violation of the Fourteenth Amendment and were negligent under state law.

    Plaintiff filed three motions to exclude or limit the testimony of Dr. Paul M. Adler, Kathryn J. Wild, RN and Lori E. Roscoe, PhD.

    Correctional Healthcare Expert Witness

    Paul Morris Adler is a licensed medical doctor with a board certification in emergency medicine and a background in providing medical care in correctional settings.

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

    Nursing Expert Witnesses

    Kathryn Jean Wild, RN is a registered nurse and a Certified Corrections Healthcare Professional. She has decades of experience as a nurse in correctional settings. 

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

    Lori Elisabeth Roscoe, Ph.D., APRN is a nurse practitioner and Certified Correctional Health Professional with decades of experience in correctional healthcare, including with policy development, staff supervision, and administration.

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

    Discussion by the Court

    A. Motion to Exclude Testimony of Adler

    Adler’s report largely consisted of factual narrative followed by his observation as to what the underlying facts show, including conclusions that there is “no evidence” or no “information or testimony” suggesting that Davis communicated his physical symptoms to anyone at the jail. These statements did not involve the application of scientific, technical, or specialized knowledge but instead expressed opinions that are “essentially factual matters as to which expert testimony is inappropriate and/or unnecessary.”

    When Adler comes closer to expressing an opinion that might be the proper subject of expert testimony, he fails to identify facts, data, standards, practices, or any other reliable principles that support his conclusions. For example, Adler opined that it is probable that symptoms began after August 9th and that an earlier medical exam would not have changed the outcome, but he did not adequately explain the basis of these opinions. Adler also speculates about what Davis knew and inappropriately weighs in on the credibility of a witness.

    Given the deficiencies in Adler’s report, the Court granted the Plaintiff’s motion to exclude the testimony.

    B. Motion to Exclude Testimony of Nurse Wild

    Plaintiff argued that Kathryn Wild offered several opinions that are outside the scope of her expertise and challenged the reliability and relevance of the other opinions.

    The Court found that Wild is qualified to offer opinions as to whether the medical staff responded appropriately and complied with applicable standards based on Davis’ clinical presentation. Additionally, although Wild is not an expert as to jail operations in general, her experience renders her qualified to offer opinions on how medical and nursing services operate in a correctional setting.

    Wild reached her opinions by reviewing medical records, deposition testimony, facility documentation and other evidence and then applying her experience in correctional health care. Further, and importantly, she identified the correctional health care standards that govern and the facts that supported her opinions.

    However, Wild’s report suffered from two deficiencies that render certain opinions unreliable or unhelpful to the jury. First, her opinion that the medical and mental health staff were not deliberately indifferent is an impermissible legal conclusion. Second, Wild’s report included factual narrative followed by conclusions that there is “no evidence” or “no documentation” that Davis verbalized or demonstrated pain or distress. These opinions did not involve the application of any specialized medical or nursing knowledge and were simply based on testimony from staff stating that Davis did not request help and the absence of any reports of pain in the medical charting.

    C. Motion to Exclude Testimony of Nurse Roscoe

    Plaintiffs have identified Lori Roscoe, Ph.D., APRN as an expert witness that will opine on standards of care and the care provided to Davis while he was detained.

    The Medical Defendants argued that she was unqualified to offer opinions as to whether the actions of a licensed professional counselor that saw Davis during his incarceration were appropriate. They also contended that her opinions regarding the scope of practice of a licensed practical nurse are unreliable.

    Although Roscoe is not a licensed professional counselor, she has experience in correctional healthcare operations and staff supervision. Her opinions are grounded in that expertise as they speak to when correctional healthcare staff should escalate care to another provider as opposed to the quality of the counseling provided by the LPC or the adequacy of the psychiatric treatment provided to Davis. The Court held that Roscoe’s experience and training are sufficient to render her qualified to opine on standards and practices for referring patients in correctional settings for additional evaluation and treatment.

    The Medical Defendants contended that Roscoe’s opinion that the LPN acted outside the scope of her practice by making diagnostic decisions, and specifically by attributing Davis’ change in condition to a mental health problem without referring him for a medical evaluation, is unreliable because she did not cite any authority to support her opinion. The Court agreed that Roscoe’s opinion that the LPN “exceeded the scope of her practice” or acted “far outside the scope of LPN practice” is not supported by sufficient facts or reliable methods and principles.

    Additionally, Roscoe’s deposition testimony indicated that the basis of her criticism of the LPN’s actions is not necessarily that she referred him to mental health, but that she did not also refer him for a medical evaluation given his symptoms.

    Although Roscoe’s explanation of the applicable standards could have been more detailed, the Court found that her opinion that the LPN’s actions deviated from accepted standards is sufficient to satisfy Rule 702‘s reliability requirements.

    Held

    • The Court granted the Plaintiff’s motion to exclude or limit the testimony of Dr. Paul Adler.
    • The Court granted in part and denied in part the Plaintiff’s motion to exclude or limit the testimony of Kathryn J. Wild, RN.
    • The Court granted in part and denied in part the Plaintiff’s motion to exclude or limit the testimony of Lori Roscoe, PhD.

    Key Takeaway

    An expert opinion “must be based on facts which enable her to express a reasonably accurate conclusion as opposed to conjecture or speculation.” The credibility of witnesses is generally not an appropriate subject for expert testimony.

    Case Details:

    Case Caption: Simms V. Board Of County Commissioners For Oklahoma County
    Docket Number: 5:23cv780
    Court Name: United States District Court, Oklahoma Western
    Order Date: February 03, 2026
  • Accounting Expert Was Not Allowed to Opine on Damages to Uninsureds

    Accounting Expert Was Not Allowed to Opine on Damages to Uninsureds

    This case centers on a landslide that occurred in May 2017 in the Cincinnati neighborhood of Mount Adams. At the time of the landslide, Plaintiff Metropolitan Design & Development, LLC (“MDD”) was insured under a commercial liability policy with Defendant Frankenmuth Mutual Insurance Company (“Frankenmuth”). MDD performed construction work in the vicinity of the landslide prior to the event, and several lawsuits alleged that MDD’s negligence caused the landslide, resulting in damage to nearby properties.

    MDD immediately notified Frankenmuth of the lawsuits and provided documentation, but Frankenmuth declined to defend MDD in these actions.

    Plaintiffs alleged that, in failing to defend MDD in the prior landslide lawsuits, Frankenmuth breached the terms and conditions of its insurance policy with MDD.

    Plaintiffs proffered two expert witnesses in support of their case: Charles M. Miller and Rebekah A. Smith.

    Insurance Expert Witness

    Charles Murray Miller is a former insurance claims adjuster and manager, as well as a lawyer practicing insurance law. He has held several insurance claims positions, including senior adjuster, branch office general adjuster, and claims manager.

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

    Accounting Expert Witness

    Rebekah Anne Smith is a Certified Public Accountant who specializes in forensic accounting. She has over 29 years of relevant business and analytical experience.

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

    Discussion by the Court

    Charles Miller

    Frankenmuth contended that Miller’s opinions and analysis offered legal conclusions based on the National Association of Insurance Commissioners’ Model Unfair Claims Settlement Practices Act and Regulations, which are encoded in Ohio law and enforced through Ohio regulations.

    Frankenmuth also argued that the Court should exclude Miller’s testimony due to their unreliability, as “Miller’s opinions merely amount to criticisms of Frankenmuth’s claims handling processes without grappling with the reality of this case and the facts in the record.”

    Miller’s opinions are based on general insurance standards that mirror relevant statutes and regulations. Thus, while “Miller’s opinions may verge on legal conclusions,” this “does not mean his entire testimony should be excluded” — instead, Frankenmuth “can object at trial to any questions that it believes would invite an improper response.”

    Frankenmuth’s argument here centers around its contention that Miller ignored countervailing facts, and because Frankenmuth does not identify omissions significant enough to render Miller’s opinions unreliable, the Court declined to exclude Miller’s testimony on this basis.

    Rebekah Smith

    Frankenmuth contended that Smith’s opinions (1) consisted of “simple math,” (2) were calculated using information about MDD’s financials provided by Plaintiff Matthew Fenik, one of MDD’s principals, that Smith failed to independently verify, (3) omitted consideration of MDD’s working capital during the relevant period, and (4) violated the standards of objectivity that Smith herself outlined in professional publications.

    As to Frankenmuth’s characterization of Smith’s opinions as “simple math,” the Court disagreed. Because this type of financial analysis is grounded in Smith’s specialized knowledge as a forensic accountant, it qualifies as expert testimony.

    The Court is unpersuaded by Frankenmuth’s argument contesting the reliability of Smith’s testimony. Frankenmuth asserted that Smith’s opinions are speculative because she should have considered more than just MDD’s financial representations, but Frankenmuth pointed to no other sources of information that she could have examined. This argument does not suffice to exclude Smith’s testimony. As it seems Smith did in fact consider MDD’s working capital during the relevant period, the Court is also unwilling to exclude her report and testimony on this basis. 

    Frankenmuth also pointed out that Smith considered damages to non-insured persons in conducting her analysis, and it argued that such considerations are “plainly irrelevant.” Under Ohio law, only insured persons can recover for bad-faith denial of insurance coverage. Therefore, because Smith’s opinions as to damages to non-insureds would not help the trier of fact to determine any damages amount in this case, which would exclude damages to non-insureds, Smith’s opinions about damages suffered by non-insured persons and entities are irrelevant.

    Held

    • The Court denied the Defendant’s motion to exclude the testimony of Charles Miller.
    • The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of Rebekah A. Smith.

    Key Takeaway

    Expert testimony must help the trier of fact to understand the evidence or to determine a fact in issue. Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.

    Case Details:

    Case Caption: Metropolitan Design & Development, LLC V. Frankenmuth Mutual Insurance Company
    Docket Number: 1:25cv38
    Court Name: United States District Court, Ohio Southern
    Order Date: April 29, 2026
  • Neurology Expert’s Legal Theories Excluded

    Neurology Expert’s Legal Theories Excluded

    J. M. was diagnosed with epilepsy in sixth grade. His condition was treated with multiple medications, but he continued to have breakthrough seizures. Sam’s Law (HB 684) requires all Texas public school personnel to be trained in the recognition of seizures and providing seizure first aid.

    On August 24, 2022, J. M. had a seizure while running on the school’s track. The school called his mother Apryl Mendoza to notify her that J. M. was seizing and that emergency medical services were in route. Apryl called Gabriel Mendoza, and when he arrived at the scene, J. M. had been seizing for approximately seventeen minutes and had not received his prescribed dose of nasal midazolam. Emergency medical personnel arrived and began performing CPR on J. M. before transporting him to the hospital. He died the following day at the age of fourteen.

    In this disability discrimination case, Plaintiffs sought to recover for injuries allegedly resulting from the prolonged seizure of fourteen-year-old J.M. while he was at school, and who later died as a result. Defendant is the school district where the alleged events took place.

    Defendant filed three motions to exclude Plaintiffs’ retained experts Dr. Dave Shahani, Ms. Monica Porras, and Dr. Francis Sheboy.

    Neurology Expert Witness

    Dr. Dave Naresh Shahani is a licensed and practicing physician, board-certified by the American Board of Psychiatry and Neurology with special qualification in Child Neurology and Epilepsy. His practice is focused on the diagnosis and management of children and adolescents with neurologic conditions and intractable epilepsy.

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

    Nursing Expert Witness

    Monica Porras, MSN, RN, NCSN has been an active licensed nurse since 2006 and specializes in pediatrics with a focus in school nursing. She has served as a school nurse for the last 9 years of her career. She is a Nationally Certified School Nurse.

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

    Education Expert Witness

    Francis N. Sheboy has 33 years of professional experience in public education. As an educator, she served as a high school social studies teacher; high school assistant principal and principal; assistant superintendent for curriculum, instruction, personnel, and technology; and superintendent of schools.

    His educational background included a bachelor’s degree in social studies education, a master’s degree in social studies education, a certificate program in educational administration with a focus on supervision and evaluation, and a doctoral degree in educational leadership, management, and policy from Seton Hall University in South Orange, New Jersey.

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

    Discussion by the Court

    Dave Shahani

    Defendant argued that Shahani’s November 2025 expert report “transforms previously uncertain factual points into definitive assertions,” and introduced “legal theories of ‘intentional discrimination’ and ‘deliberate indifference’” that were not in his previous June 2024 report.

    The Court agreed with Defendant that these are legal conclusions and should be excluded as irrelevant and unhelpful to the trier of fact.

    Defendant also asserted that Shahani’s discussion of Sam’s Law, found in both the June 2024 and November 2025 reports, should be excluded because “whether school personnel complied with statutory training requirements or internal policies is a legal and factual question for the Court and jury.”

    Shahani may discuss Sam’s Law in the context of his medical expertise, and may provide his opinion as to the facts of the case within that context. This includes how the law might relate to his testimony regarding the guidelines set out by the American Epilepsy Society or J. M.’s seizure action plan. However, Shahani cannot testify that “[J. M.] was not treated per the standard of care outlines by Sam’s Law.” First, because this is an impermissible legal conclusion, and second, because Defendant is correct that Sam’s Law does not provide a standard of care, such testimony would confuse and mislead the jury.

    Monica Porras

    Defendant also moved to exclude the testimony of Monica Porras, arguing that Porras’ testimony ‘substitutes legal conclusions and advocacy for expert analysis” and would “improperly instruct the jury on the law.” Porras’ November 2, 2025 report included testimony that a “knowing refusal to administer medication” constitutes “intentional discrimination or deliberate indifference under Title II of the ADA.” She then concluded that J. M. was “denied an ADA-protected accommodation” and “died as a result.”

    The Court agreed with the Plaintiffs that experts can opine as to industry standards and discuss whether conduct is consistent with those standards.

    As a result, testimony that a “knowing refusal to administer medication” constitutes “intentional discrimination or deliberate indifference under Title II of the ADA,” that J. M. was “denied an ADA-protected accommodation,” or any similar legal conclusions relating to the ADA was excluded.

    However, the Court refused to exclude testimony simply because it mentions the ADA within the context of Porras’ discussion of industry customs or practices related to her experience as a school nurse.

    Francis Sheboy

    Defendant moved to exclude the testimony of Plaintiffs’ expert Dr. Francis Sheboy because he “purports to offer opinions regarding the school’s compliance with federal disability laws and its alleged deliberate indifference.” Experts cannot offer legal conclusions in their testimony. As a result, any testimony by Sheboy containing legal conclusions, such as above, will be excluded. 

    Defendant also argued that Sheboy should not be able to opine as to J. M.’s disability status and eligibility under the ADA because he is not a medical doctor.

    Although Sheboy may discuss J. M.’s condition within the context of his experience in education administration, the Court held that statements like J. M.’s epilepsy and accompanying seizures “clearly constituted qualifying impairments that substantially limited major life activities” and “entitled him to protections under federal disability law” are legal conclusions that must be excluded.

    Held

    The Court agreed with Defendant that portions of each challenged expert’s testimony contain impermissible legal conclusions, are irrelevant, and risk confusing the jury. However, the Court also agreed with Plaintiffs that the appropriate remedy is limitation, not wholesale exclusion of the witnesses.

    Accordingly, the Court granted Defendant’s motions insofar as Plaintiffs’ experts will not be permitted to include any legal conclusions in their testimony, as explained above. This includes any testimony that states or applies ADA legal standards, or otherwise uses legal labels such as “deliberate indifference” or “intentional discrimination.” The Court denied Defendant’s motions to the extent they sought to exclude Plaintiffs’ experts and their opinions in their entirety.

    Key Takeaway

    Qualified experts are permitted to offer opinion testimony as to industry standards or norms and whether or not they were followed in a particular case, as long as such opinions involves questions of fact rather than purely legal matters.

    This could include the discussion of statutes, such as the ADA, in relation to how they relate to industry standards or practices, but cannot include legal conclusions relating to those statutes.

    Case Details:

    Case Caption: Mendoza V. Amarillo Independent School District
    Docket Number: 2:24cv169
    Court Name: United States District Court, Texas Northern
    Order Date: March 19, 2026