Expert Witness Profiler

Tag: Reliable

  • Economics Expert Witness’ Testimony Admitted Because He Has Researched CON Laws

    Economics Expert Witness’ Testimony Admitted Because He Has Researched CON Laws

    Charles Slaughter is a licensed physical therapist who owns a physical therapy clinic in Jackson, Mississippi. He brought this constitutional challenge to Mississippi’s Certificate of Need (CON) program because Mississippi has had a moratorium on issuing CONs to new home health care businesses for the past 42 years.

    This case was initiated in the wake of the COVID-19 pandemic. Slaughter hoped to expand his business and offer in-home physical therapy to homebound patients during the pandemic. He says he was blocked from doing so. A set of Mississippi laws requires health care facilities to apply and receive a state-issued CON before opening, expanding, relocating, changing ownership, or even acquiring major medical equipment. Even if he were able to successfully apply and meet the requirements for approval of a CON, the Board of Health has made no recommendation to lift the moratorium as to at-home health facilities.

    Slaughter alleged that the CON regime violated the equal protection and substantive due process clauses of the United States and Mississippi Constitutions.

    Slaughter retained Dr. Thomas Stratmann as an expert witness and utilized Stratmann’s opinions to support his allegation that the CON laws and moratoria do not lower consumer costs, increase access to care, or increase the quality of care.

    Mississippi Association for Home Care (MAHC) is a nonprofit whose members are licensed home health agencies that serve Mississippians. MAHC filed a motion to exclude Stratmann as Slaughter’s expert witness, claiming their long-established economic interests as CON holders, as well as care to indigent patients, would be impaired.

    Economics Expert Witness

    Thomas Stratmann holds a Ph.D. in economics from the University of Maryland.  He is a Distinguished University Professor at Mason and holds an appointment as Professor of Economics at the Department of Economics and has a courtesy appointment at the Antonin Scalia Law School. 

    He has also coauthored policy briefs on CON laws, testified about CON laws before two state legislatures and served as an expert in five other lawsuits.

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

    Discussion by the Court

    MAHC took numerous exceptions to Stratmann’s report. It argued that he is not a health care expert but rather an economist who has only worked in academia and presents “one-sided advocacy for free markets.” Additionally, MAHC argued Stratmann’s report is not helpful in determining if a rational basis existed at the time the CON laws were created because he bases his opinions on information after the enactment of the Mississippi home health CON laws.

    MAHC also challenged the materials Stratmann used to create his report. It argued that while Stratmann’s report focuses on articles related to home health care costs, the report often ignores significant markers of success in home health care such as improvements in patients ADL’s.

    MAHC took particular issue to the fact that Stratmann focused primarily on national information instead of Mississippi specific data from the Centers for Medicare and Medicaid Services (“CMS”). It says this shows that he lacks the fundamental knowledge of and experience with the services provided by home health agencies.

    The Court found Stratmann qualified due to his “knowledge, skill, experience, training or education.” While an economist, he focused on CON laws and has both researched and written extensively on the topic. The Court disagreed with MAHC’s contention that Stratmann’s opinions “are not helpful in determining any material issues in this case.”

    Defendants will have the opportunity to vigorously cross examine Stratmann on the facts and methods he relied on in forming his conclusions. Cross examination specific to the lack of CMS and Mississippi data in his report will be helpful to the Court, however, at this point the Court does not believe these claims alone are reason to exclude Stratmann.

    Held

    The Court denied MAHC’s motion to exclude Dr. Thomas Stratmann’s expert report.

    Key Takeaway:

    The Court is primarily concerned with MAHC’s contentions that “all of Stratmann’s opinions … are not based on sufficient facts and data” and that he “failed to consider or address the relevant Mississippi-specific facts and data in forming his opinions regarding improvements of health, quality, accessibility, acceptability and continuity of care.” However, Stratmann admittedly does research CON laws across the country, and this Court believes the national context and background on CON laws more likely than not will be beneficial to it during the bench trial.

    Case Details:

    Case Caption: Slaughter V. Dobbs
    Docket Number: 3:20cv789
    Court: United States District Court, Mississippi Southern
    Order Date: September 11, 2024
  • Credit Reporting Expert Witness’ Testimony About Actual Damages Sustained by Plaintiff Excluded

    Credit Reporting Expert Witness’ Testimony About Actual Damages Sustained by Plaintiff Excluded

    Plaintiff, Noah Ford rented an apartment in Colorado. He signed a Lease Agreement and additional lease documents and moved into the apartment on or about September 3, 2020. On or about July 4, 2021, Ford signed another Lease Agreement and additional lease documents to rent the same apartment for an additional year, for the period August 2, 2021 to August 1, 2022. On or about September 2, 2021, Ford gave notice that he intended to move out and did move out of the apartment. However, pursuant to the terms of the first Lease Agreement, and the second Lease Agreement, and as a result of his breach of such terms, Ford owed payment for the remainder of the lease term, along with additional other charges.

    Ford failed to pay any part of the balance due, and the account was assigned to Defendant I.Q. Data for collection. I.Q. Data also marked the account as disputed for all purposes, including credit reporting. This disputed status remains on the account to date.

    As a result of re-renting the apartment, the landlord later revised the balance due. As a result of identifying a duplicate entry, the landlord later revised the balance again. The current principal balance is $12,215.38, and that amount remains due. Ford purports to have disputed the debt with each CRA.

    Plaintiff’s proposed expert, Thomas Tarter, sought to offer opinions on (1) whether Defendants violated the Fair Debt Collection Practices Act (“FDCPA”); (2) whether Defendants violated the Fair Credit Reporting Act (“FCRA”); and (3) whether Plaintiff was damaged by the conduct of Defendants.

    Defendant filed a motion to exclude the expert testimony of Tarter.

    Credit Reporting Expert Witness

    Thomas Tarter is the Managing Director of The Andela Consulting Group, Inc. (“ACG”), banking, business, credit industry, management and corporate finance consulting firm. He has more than 50-years of experience in commercial and consumer credit reporting, debt collection, credit origination, dispute resolution industry customs, standards and practices and credit damages.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Thomas Tarter’s expert testimony. 

    Discussion by the Court

    The Court held that Tarter is not qualified to testify about the legal standards of, alleged violations of, or defenses to, the Fair Debt Collection Practices Act and Fair Credit Reporting Act.

    In his expert report, Tarter admitted he had could not provide an estimate of Ford’s economic credit damages, the value of Ford’s lost sleep, or the value of time and energy Ford spent to correct his credit, because Tarter had not reviewed any supporting documentation. In his deposition, Tarter conceded he had not reviewed any discovery at the time of his report concerning Defendant’s policies on providing information to credit reporting agencies or how Defendant investigates disputed debts and claims of inaccurate reporting.

    Ford stated that, at trial, Tarter will not quantify or assign a dollar value to Ford’s credit stigma, chilling, credit availability, credit expectancy, employment, or impact of a lower credit score. The Court excluded Tarter’s testimony about actual damages sustained by Ford and sought to exclude any testimony from Tarter regarding topics not set forth in either his expert report or deposition testimony.

    However, Tarter has significant experience working in the financial and credit reporting industry, such as involvement in debt collection practices and seeking loan approvals involving personal lines of credit. The Court believed that this experience provides him with a reliable basis from which he may opine on these topics.

    Held

    The Court limited the testimony of Plaintiff’s expert Thomas Tarter.

    Key Takeaway:

    Even thought Tarter admitted he had could not provide an estimate of Ford’s economic credit damages, the value of Ford’s lost sleep, or the value of time and energy Ford spent to correct his credit, because Tarter had not reviewed any supporting documentation, his only saving grace remains his extensive experience.

    Case Details:

    Case Caption: Ford V. Iq Data International Inc Et Al
    Docket Number: 2:22cv1791
    Court: United States District Court, Washington Western
    Order Date: September 05, 2024

     

  • Obstetrics and Gynecology Expert Witness Barred from Testifying About Plaintiff’s Expressed Desire for Cesarean Delivery

    Obstetrics and Gynecology Expert Witness Barred from Testifying About Plaintiff’s Expressed Desire for Cesarean Delivery

    This matter arises out of a medical malpractice action filed by Plaintiffs Tyler Grenier, individually, and Jenna Grenier, individually and as next friend of J.A.G., a minor, (collectively “Plaintiffs”) against Defendant United States of America (“Defendant”) for alleged medical negligence at Tripler Army Medical Center (“Tripler”) related to the medical care by Defendant’s employees for prenatal care and labor of Plaintiff Jenna Grenier (“Jenna”), and the subsequent delivery of J.A.G.

    Severe physical injuries sustained by Jenna Grenier and J.A.G. are alleged as well as the negligent infliction of emotional distress to Plaintiff Tyler Grenier (“Tyler”) and Jenna; Plaintiffs’ loss of filial consortium; and Tyler’s loss of spousal consortium.

    In the instant motion, Defendant sought to exclude certain portions of opinions rendered by Plaintiffs’ expert witness, Dr. Adam Levy, M.D., because: his opinions regarding estimated fetal weight are unreliable; his opinions regarding Jenna’s operative delivery and using forceps resulting in excessive force are unreliable; his opinions about obtaining Jenna’s informed consent are unreliable; his opinions that Justin Pilgrim, D.O., and Asha Mada, D.O., were unqualified or incompetent are unreliable; his opinions that the medical care rendered to repair Jenna’s laceration injury are unreliable; and his opinions about the cause of the Minor Plaintiff’s injuries are unreliable and his deference on causation to a neonatologist acknowledged his lack of expertise.

    Obstetrics and Gynecology Expert Witness

    Dr. Adam Levy is a board-certified obstetrician gynecologist and has been a Fellow of the American College of Obstetrics and Gynecology since 1993. During his service in the Air Force he served as an OB/GYN specialist. He currently supervises and instructs residents in a high-risk pregnancy population labor and delivery.

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

    Discussion by the Court

    Plaintiffs argued that Levy’s opinion that Defendant’s physicians failed to appreciate the risk for delivery complications because pre-delivery fetal growth was beyond the norm comports with accepted medical literature and therefore his opinion that the physicians who chose to deliver with forceps fell below the standard of care is reliable. As to Levy’s opinions regarding operative vaginal delivery, Plaintiffs argued that they are based on medical records and literature, and thus reliable.

    Plaintiffs argued that Levy’s opinion that Jenna was not given a meaningful choice as to the method of delivery is “consistent with the modern standards of the medical community, his own deposition testimony, and thus [is] reliable and should not be excluded.” As to Levy’s opinions regarding the standard of care provided by Pilgrim and Mada in proceeding with forceps delivery, Plaintiffs pointed to his education, work and training in the area of high-risk obstetrics in a teaching hospital as qualifying him to render his opinions and submit that qualifications go to weight and not admissibility.

    As to Levy’s opinion that the repair of the perineal laceration was done incorrectly, Plaintiffs submit that he is qualified to opine on the repair based on his education, training and experience. Plaintiffs submit that Levy’s opinions “regarding the traumatic birth being the cause of injuries to J.A.G. and his mother” are based on risks identified in medical literature and thus reliable.

    Levy opined that “[t]he breaches of the standard of care of [J.A.G.] has caused brain damage” and that “cesarean delivery would have prevented both the newborn birth injuries and maternal injuries in this case.”

    Levy’s opinions relate to the issue of medical standard of care

    Defendant did not challenge Levy’s opinions as being irrelevant nor that he lacks qualification in the field of obstetrics and gynecology. The Court ruled that Levy’s opinions relate to the issue of medical standard of care. If he has misconstrued the medical records, or his analysis is otherwise shaky, then pointing out any such failures is appropriate for cross-examination and not exclusion where the expert’s qualifications and relevance of his opinions are not in issue. However, because Levy has deferred to a neonatologist as to the cause of the minor Plaintiff’s injuries, the Court believed that he is not qualified to render opinion testimony that the physicians’ breaches of the standard of care for the minor Plaintiff “has caused brain damage among the multitude of injuries that are currently being treated and will require further treatment far into the foreseeable future[,]” and that opinion is excluded.

    As for his opinion regarding Jenna’s statements about whether she gave informed consent; the Court held the information to be factual because it did not require the assistance of an expert as required by Rule 702. The Court also excluded his opinion about Mada’s motivations. His conclusion that Jenna’s expressed desire for cesarean delivery was also ignored, was considered speculative at best.

    Held

    The Court granted in part and denied in part the Defendant’s motion to exclude the expert report and testimony of Dr. Adam Levy, M.D.

    Key Takeaway:

    Defendant did not challenge Levy’s opinions as being irrelevant nor that he lacks qualification in the field of obstetrics and gynecology. However, because Levy has deferred to a neonatologist as to the cause of the minor Plaintiff’s injuries, the Court believed that he is not qualified to render opinion testimony that the physicians’ breaches of the standard of care for the minor Plaintiff is the cause of brain damage.

    Please refer to the blog previously published about this case: Obstetrics and Gynecology Expert Witness’ Opinions Admitted Because they Pertain to the Issue of Medical Standard of Care

    Case Details:

    Case Caption: Grenier Et Al V. United States Of America
    Docket Number: 1:22cv396
    Court: United States District Court, Hawaii
    Order Date: September 5, 2024

  • Obstetrics and Gynecology Expert Witness’ Opinions Admitted Because they Pertain to the Issue of Medical Standard of Care

    Obstetrics and Gynecology Expert Witness’ Opinions Admitted Because they Pertain to the Issue of Medical Standard of Care

    This matter arises out of a medical malpractice action filed by Plaintiffs Tyler Grenier, individually, and Jenna Grenier, individually and as next friend of J.A.G., a minor, (collectively “Plaintiffs”) against Defendant United States of America (“Defendant”) for alleged medical negligence at Tripler Army Medical Center (“Tripler”) related to the medical care by Defendant’s employees for prenatal care and labor of Plaintiff Jenna Grenier (“Jenna”), and the subsequent delivery of J.A.G.

    Severe physical injuries sustained by Jenna Grenier and J.A.G. are alleged as well as the negligent infliction of emotional distress to Plaintiff Tyler Grenier (“Tyler”) and Jenna; Plaintiffs’ loss of filial consortium; and Tyler’s loss of spousal consortium.

    Plaintiffs sought to exclude certain portions of opinions rendered by Defendant’s expert witness, Dwight J. Rouse, M.D., because “they are not based on sufficient facts or data and they are not the product of reliable principles and methods.”

    Obstetrics and Gynecology Expert Witness

    Dwight J. Rouse is board certified in Obstetrics and Gynecology, and Maternal-Fetal Medicine. He is the Professor of Obstetrics and Gynecology at the Warren Alpert Medical School of Brown University and an actively practicing maternal fetal medicine attending at Women & Infants Hospital of Rhode Island.

    Discover more cases with Dwight Rouse as an expert witness by ordering his comprehensive expert witness profile report.

    Discussion by the Court

    Plaintiffs argued that, although Rouse’s testimony is relevant and his qualifications are not in issue, Rouse got a key fact wrong and thus any opinions relying on that wrong information should be excluded.

    According to Rouse, “Grenier’s contention that she requested a cesarean delivery instead of operative vaginal delivery is at variance with the contemporaneous medical records. A low forceps delivery is what was performed and it was not foreseeable that mother or infant (or both) would suffer trauma. There is nothing in the medical record or the deposition testimony of the doctors or nurses to indicate that the forceps delivery was anything but easy and straightforward, or was performed in a manner outside the standard of care.”

    Plaintiffs claimed that Rouse “cherry-picked one statement” and omitted relevant facts in medical records.

    The Court held that Rouse’s opinions relate to the issue of medical standard of care and not causation based on epidemiological studies. If he has relied on a non-existent fact, has misconstrued the medical records, or his analysis is otherwise shaky, then pointing out any such failures is appropriate for cross-examination and not exclusion where the expert’s qualifications and relevance of his opinions are not in issue.

    Held

    The Court denied the Plaintiffs’ motion to strike the testimony of expert witness Dr. Dwight J. Rouse.

    Key Takeaway:

    Plaintiffs argued that, although Rouse’s testimony is relevant and his qualifications are not in question, Rouse got a key fact wrong. Therefore, any opinions relying on that incorrect information should be excluded. The Court held that Rouse’s opinions pertain to the issue of medical standard of care rather than causation based on epidemiological studies. Thus, highlighting any such errors is appropriate for cross-examination rather than exclusion, given that the expert’s qualifications and the relevance of his opinions are not in dispute.

    Case Details:

    Case Caption: Grenier Et Al V. United States Of America
    Docket Number: 1:22cv396
    Court: United States District Court for the District of Hawaii
    Order Date; September 4, 2024
  • Trucking Expert Witness’ Testimony About Negligent Training Excluded

    Trucking Expert Witness’ Testimony About Negligent Training Excluded

    This action arises out of a motor vehicle accident between an automobile driven by Philnelius Snow and a tractor-trailer owned and operated by Charles Bailey Trucking (“CBT”)and driven by its employee, Travis Hickey. Plaintiff alleged two causes of action against CBT: 1) respondeat superior for the negligence of its employee, and 2) direct claims of negligence against CBT for negligent hiring, negligent training, negligent entrustment, negligent retention, negligent qualifying, and negligent supervision of Hickey (Plaintiff’s “Direct Negligence Claims”). Defendants argued that they are entitled to summary judgment on the Direct Negligence Claims and Plaintiff’s punitive damages claim.

    Defendants filed a motion to exclude Plaintiff’s expert Adam Grill‘s testimony about CBT’s responsibilities as a motor carrier and the negligent training claim. 

    While parties occasionally file Daubert motions alongside summary judgment motions, such motions typically implicate a summary judgment issue such as causation. Here, the only issue on summary judgment relates to negligent training. The Court will consider Defendants’ motion to exclude Plaintiff’s expert Adam Grill’s testimony as it relates to CBT’s responsibilities as a motor carrier and the negligent training claim only, and finds it premature to address other potential issues at this time.

    Trucking Expert Witness 

    Adam Grill has worked around large commercial vehicles and studied the intricacies of commercial vehicle transportation among the best in the industry. He received his certification as a commercial vehicle operator in 2005. He holds a Commercial Driver’s License (CDL) with endorsements for hazardous materials, tankers, double trailers, triple trailers, passenger buses, and school buses. Grill is a certified director of safety (CDS).

    He is certified for forklift operation, operation of longer combination vehicles (LCVs), crane hoist and rigging, aerial manlift, telehandler, and heavy equipment including payloaders and motor graders. Grill is a certified pilot car operator and flagger through Gulf Coast Community College in Panama City, Florida. He is currently an active truck driver, and an associate of Atlantic Pacific Resource Group.

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

    Discussion by the Court

    Grill’s expert report contended that “Charles Bailey is responsible to train and supervise their professional drivers” and “[a]ccording to industry standards, this collision was preventable on the part of Charles Bailey and Defendant Hickey.”

    Defendants argued that the expert report and proposed testimony should be excluded because Grill’s opinions are not reliable and his testimony would not assist the trier of fact because his opinions merely offer legal conclusions.

    Defendants argued that “Grill’s report merely regurgitates the Federal Motor Carrier Safety Rules (“FMCSRs”) and states that [CBT] failed to comply with the law.” According to Grill, CBT did not provide specific training to drivers on “visual search techniques” and if it had, then the collision between Snow and Hickey could have been prevented. 

    Grill asserted that CBT failed to satisfy the FMCSRs related to training. Grill’s testimony further asserted that:

    A. Because the specific concepts involved in leading up to this accident, through proper education, training and including the proper mindset of a driver, it would be completely avoidable. In other words, the reasonable expectation of a driver to keep a proper visual search, have a plan, an advance plan for how to respond to hazards, would in a practical sense and through the testimony of the driver in this case, would have — would have allowed him to prevent this type of collision from occurring.

    The Court held that Grill’s testimony that additional training would have prevented the collision is unreliable speculation and does not help the Court determine whether Plaintiff has met his burden as a matter of law. 

    Held

    The Court excluded Adam Grill’s expert report and proposed testimony for the summary judgment motion. It granted in part Defendants’ motion for partial summary judgment as to Plaintiff’s claims of negligent hiring, negligent retention, negligent qualifying, negligent supervision, negligent entrustment, and punitive damages.

    Key Takeaway:

    A negligent training claim requires a showing that (1) the employer’s training was deficient, and (2) breach of that duty proximately caused Plaintiff’s injury. The Court is capable of referring to the FMCSRs and relevant case law to determine whether CBT’s training was legally deficient. Moreover, Grill’s testimony that additional training would have prevented the collision is unreliable speculation.

    Case Details:

    Case Caption: Snow V. Charles Bailey Trucking, Inc. Et Al
    Docket Number: 1:22cv706
    Court: United States District Court for the Northern District of Georgia, Atlanta Division
    Order Date: August 07, 2024
  • Maritime Safety Expert Witness’ Testimony on Metal Grating Admitted

    Maritime Safety Expert Witness’ Testimony on Metal Grating Admitted

    Plaintiff Kevin McCray worked as a longshoreman for his employer, Houston Terminal LLC, on the MV Maersk Tennessee. The MV Maersk Tennessee, a container ship, was owned and operated by Defendant Maersk Line Limited.

    On February 28, 2023, McCray worked in Bay 30 with his co-worker, Manuel Maldonado, for about 1.5 to 2 hours. McCray used the vessel’s common area walkways, which had metal gratings for access to the space below. Around 4:00 PM, while standing on the metal grating, it suddenly gave way beneath him. McCray fell into the void space below and suffered injuries.

    On March 20, 2023, McCray filed a lawsuit against Maersk Line Limited and Maersk Line-Ltd., USA. He later dismissed the claims against Maersk Line-Ltd., USA. His remaining claims against Maersk Line Limited are based on section 905(b) of the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. Sec. 905(b).

    Maersk Line Limited, the sole remaining defendant, sought summary judgment on June 27, 2024. McCray responded to this motion and used the sworn statement of John Depaolo, Plaintiff’s gang foreman, and the supplemental report of maritime safety expert witness Ronald Signorino. Defendant filed a Daubert motion to exclude the sworn statement and the supplemental expert report of the maritime safety expert witness.

    Maritime Safety Expert Witness

    Ronald L. Signorino is a maritime safety and regulatory affairs expert with over five decades of experience in the industry. He is currently the President of The Blueoceana Company, Inc., a role he has held since January 2001. His extensive career includes key positions such as Director of Regulatory Affairs at Maersk Container Service Company, Director of Occupational Safety & Health at Universal Maritime Service Corporation, and Manager/Understudy Director at the Office of Maritime Standards within OSHA.

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

    Discussion by the Court

    Defendant sought to exclude Ronald Signorino’s supplemental report, which relied on John Depaolo’s sworn statement. The grounds for exclusion were: (1) the report’s untimeliness, as it was submitted after the expert report deadline, (2) Signorino’s alleged lack of qualifications in engineering, and (3) the report’s claimed lack of reliability and relevance.

    Late Submission of the Report

    Defendant argued that the supplemental report should be excluded because Plaintiff submitted it after the deadline. Plaintiff was required to designate experts and produce reports by January 5, 2024, which he met by submitting Signorino’s initial report on that date. Signorino was deposed on May 9, 2024. However, Plaintiff provided the supplemental report, based on Depaolo’s statement, only on July 3, 2024. Plaintiff did not seek court approval for this additional report.

    To assess whether the delay was justified or harmless, the Court considered four factors: (1) the explanation for the delay, (2) the importance of the testimony, (3) potential prejudice to the Defendant, and (4) the availability of a continuance to remedy such prejudice.

    Plaintiff explained that he received Depaolo’s statement only on April 24, 2024, after the deadline. This delay was due to Defendant’s timing, and not Plaintiff’s fault. Signorino was unaware of Depaolo’s observation about the grating clip’s security until after the deadline. The supplemental report was crucial for establishing causation. The admission of the report could cause prejudice to the Defendant. However, the Plaintiff agreed to re-depose Signorino or allow a rebuttal witness if needed as means to cure any prejudice to the Defendant. Thus, the Court found the delay did not warrant exclusion.

    Qualifications of the Expert

    Defendant argued that Signorino was unqualified to offer engineering opinions because he lacked formal training in structural engineering.

    While Signorino did not have structural engineering qualifications, his 60 years of experience in maritime transport and safety regulations provided a sufficient basis for his opinions on grating and safety. He is qualified to testify that “The Plaintiff’s weight, when using the grating as intended, would not have caused the clamps to bend or loosen…” due to his extensive experience with similar vessels and gratings. This background allows him to determine if the grating would collapse under the Plaintiff’s weight or if a defect existed before the Plaintiff’s use.

    The Court decided that Signorino’s extensive experience in similar contexts qualified him to give relevant testimony. It was held that Defendant’s lack of qualifications argument questioned the weight of the argument and not its admissibility and the Defendant could challenge his qualifications during cross-examination.

    Reliability and Relevance of the Report

    The Defendant argued that the Plaintiff failed to prove the reliability or relevance of the evidence. Firstly, the Defendant claimed that the Plaintiff did not establish reliability because he had not shown how Signorino determined what might cause the clamps to bend or loosen.

    The Defendant described Signorino’s supplemental report as a “conclusory opinion” lacking support from Signorino’s own observations, testing, measurements, or analysis of the grate. Secondly, the Defendant contended that the Plaintiff had not demonstrated relevance because Depaolo’s observations of the grate, which formed the basis of Signorino’s report, occurred after the accident and after the grate had fallen several feet.

    However, experts may rely on witness statements and prior experience to form opinions. Signorino’s supplemental report, which incorporated Depaolo’s observations and his own experience, was deemed reliable and relevant for causation purposes. The Court concluded that the report met the standards set by Federal Rule of Evidence 702.

    The Court found no reason to exclude Depaolo’s statement or Signorino’s supplemental report. Signorino was qualified to testify on the metal grating, and his report was both reliable and relevant.

    Held

    The Court denied the Defendant’s motion to exclude Plaintiff’s maritime safety expert witness, Ronald Signorino.

    Key Takeaway:

    The Court denied the Defendant’s motion to exclude Ronald L. Signorino’s testimony and supplemental report for several reasons.

    Signorino’s extensive maritime safety experience was deemed sufficient for providing expert opinions, despite lacking formal engineering qualifications. Additionally, the Court ruled that the supplemental report was reliable and relevant as it was based on credible witness statements and Signorino’s industry experience.

    To conclude, the Court determined that there was no valid reason to exclude the expert testimony.

    Case Details:

    Case Caption: Mccray V. Maersk Line Limited Et Al
    Docket Number: 4:23cv995
    Court: United States District Court, Texas Southern
    Order Date: August 29, 2024
  • Automotive Industry Expert Witness’ Testimony about the Legitimacy of the Investment and Business Practices Excluded

    Automotive Industry Expert Witness’ Testimony about the Legitimacy of the Investment and Business Practices Excluded

    Plaintiff filed this lawsuit to recover the $425,000 investment it made into the corporate Defendant, No-H20 USA, Inc., which was the product of fraudulent misrepresentations made by Defendant O’Brien both verbally and in writing pertaining to the Company’s performance and ownership of critical intellectual property. O’Brien was at all material times the CEO of the Company. More than two years after O’Brien’s initial verbal misrepresentations, Plaintiff’s managing member came to learn that he did not own the intellectual property and in addition, the Company was in a financial shambles due to O’Brien’s misuse of corporate funds.

    This is now a securities fraud case against the individual Defendant Emmet O’Brien, for on September 5, 2023, a Clerk’s Default was entered against the Company.

    Plaintiff moved pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Plaintiff’s motion sought to exclude Robert Barton‘s testimony because it is not relevant to the issues to be tried. 

    Automotive Industry Expert Witness

    Robert Barton has over 25 years of operational experience in the vehicle rental, automotive, and travel industries. He is a senior vice president and general manager at The Hertz Corporation, the world’s largest car rental company. He oversees the global operations and performance of the Dollar and Thrifty brands, as well as the franchise footprint, with a $2 billion P&L responsibility. 

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

    Discussion by the Court

    To begin with, Plaintiff’s remaining claims are federal and state law securities fraud claims. In order to be relevant, Barton’s testimony needs to address one of the elements of Plaintiff’s claims. Plaintiff asserted that Barton’s testimony is not relevant to the issues before the Court and, thus, will not assist the jury in understanding the evidence or facts in issue.

    In his report, Barton set out his instructions as follows:

    “My analysis was to focus on the legitimacy of the investment and business practices, as well as the nature of the communications and actions taken by the parties involved. My task was to evaluate the impact of the Plaintiff’s actions on No-H2O’s franchise network, scrutinize the Franchise Disclosure Document (FDD), investment deck, franchisor evaluations, growth projections, and specific email communications.”

    In short, the Report concluded: “The Plaintiff’s action and claims have adversely impacted the No-H2O franchise network, inconsistent with the investment deck, and industry standard.”

    O’Brien responded that Barton is qualified, Barton’s opinions are grounded in standardized and recognized practices within franchise operations analysis, and his opinions provide essential context to Plaintiff’s allegations. However, the Court noted that Plaintiff has not questioned Barton’s qualifications or his methodology. Plaintiff only questions the relevance of Barton’s opinions. The Court fails to see, and O’Brien has failed to show, how Barton’s opinions—that Plaintiff’s action and claims have adversely impacted the No-H2O franchise network and are inconsistent with the investment deck and industry standard—are relevant to whether Defendants made false or misleading statements to Plaintiff upon which Plaintiff relied when deciding whether to invest in the Company.

    Held

    The Court granted Plaintiff’s motion to exclude the expert testimony of Robert Barton.

    Key Takeaway:

    Based on Barton’s stated instructions and his conclusion, Plaintiff maintained that nothing in Barton’s Report is relevant to what Plaintiff must prove to prevail at trial and would only serve to mislead or confuse the jury. The Court agreed.

    Addendum (September 15, 2025):

    This article was originally based on the Court’s July 31, 2024 order in Ae Capital Group LLC v. No-H2O USA, Inc. et al., which discussed expert testimony regarding the legitimacy of certain investment and business practices and referenced Defendant Emmet O’Brien.

    Subsequently, on August 23, 2024, the Court entered an order dismissing all claims against Mr. O’Brien. This update is published to reflect that Mr. O’Brien is no longer a defendant in this matter.

    Case Details:

    Case Caption: Ae Capital Group Llc V. No-H20 Usa, Inc. Et Al
    Docket Number: 0:23cv60601
    Court: United States District Court, Florida Southern
    Order Date: July 31, 2024
  • Environmental History Expert Witness’ Testimony About the Original Parties’ Motivations Admitted

    Environmental History Expert Witness’ Testimony About the Original Parties’ Motivations Admitted

    Plaintiffs Box Elder Kids, LLC filed a class action lawsuit against Defendants Anadarko Petroleum Corporation, Anadarko E & P Onshore, LLC, and other associated entities alleging a breach of Surface Owner Agreements (SOAs). These agreements obligated Anadarko, as successor to Union Pacific Land Resources Company, to pay a percentage of the value from oil, gas, and other hydrocarbons extracted from lands in Colorado, Wyoming, and Utah, which were previously owned by Union Pacific, to the Plaintiffs.

    The Plaintiffs owned the surface land where these hydrocarbons were extracted. The complaint sought recovery of these payments, referred to as the “Surface Owner Payment.” Additionally, the Plaintiffs claim unjust enrichment and allege fraud, deceit, and constructive fraud against Anadarko and its affiliates.

    The Defendants filed a motion to exclude the testimony of two of Plaintiff’s expert witnesses, Philip Goiran and Thomas G. Andrews on the basis of the Daubert Standard and Federal Rule of Evidence 702.

    Real Estate Law Expert Witness

    Philip A. Goiran, J.D., is a seasoned attorney specializing in real property law, oil and gas law, and related litigation. He earned his Juris Doctor from The American University, Washington College of Law, in 1995, following a Bachelor of Arts in Political Science from the same institution in 1992.

    Currently, Goiran serves as Senior Counsel at Tiemeier & Stich, P.C. in Denver, Colorado, a role he has held since May 2015. His previous experience includes partnership roles at the Law Office of Philip A. Goiran and Grant, Grant & Goiran LLP, where he focused on similar areas of law. Early in his career, he worked as an Associate at Arthur Konopka in Washington, DC, where he gained expertise in title insurance law and estate administration.

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

    Environmental History Expert Witness

    Thomas G. Andrews, Ph.D., is a distinguished historian with extensive expertise in United States history. He earned his Ph.D. in 2003 and M.A. in 1997 from the University of Wisconsin-Madison, specializing in U.S. History, after completing his B.A. summa cum laude in History and International Studies from Yale University in 1994, where he was inducted into Phi Beta Kappa.

    Currently, Andrews serves as a Professor of History at the University of Colorado Boulder, a position he has held since 2016.

    Gain a comprehensive understanding of Thomas G. Andrews’ qualifications and casework history with his Expert Witness Profile report.

    Discussion by the Court

    A. Philip A. Goiran

    Philip Goiran’s testimony regarding the royalty payment history

    Defendants sought to exclude Philip Goiran’s testimony regarding the royalty payment history between the parties. They aimed to exclude his opinions on the following:

    · Anadarko’s failure to pay the promised 2.5% royalty on wells located on Plaintiffs’ property. Plaintiffs were burdened with the well costs while not receiving the 2.5%.

    · The consistency of landowners’ compensation expectations under Surface Ownership Agreements (SOAs) until 2010, when Anadarko started reducing the 2.5% payment.

    · Anadarko’s historical payment practices based on the well-spot method until 2010.

    Defendants argued that Goiran should be excluded because he admitted in his deposition that he lacked personal knowledge of the parties’ payment history, making his opinions on this topic unreliable. The Court agreed, noting that Goiran could not testify about topics he was unfamiliar with, including the payment history, which he acknowledged he did not know “as a factual matter.” Goiran’s report did not reference the payment data between the parties, and he confirmed he did not review any information not listed in his report.

    Although Plaintiffs did not strongly dispute Goiran’s lack of personal knowledge, they contended it was irrelevant since the payment history was undisputed. However, the Court was not aware of any authority allowing an expert to testify on matters outside their personal knowledge, even if those matters are undisputed. Therefore, the Court ruled to exclude Goiran’s testimony on the payment history

    Philip Goiran’s testimony regarding general landowner expectations

    Defendants also moved to exclude Goiran’s testimony regarding general landowner expectations about receiving the full 2.5% payment. They argued this testimony was irrelevant and unreliable. However, Goiran based his opinion on extensive experience representing clients with similar agreements and reviewing the SOAs in question.

    Moreover, the Court found Goiran’s general testimony on landowner expectations relevant and sufficiently reliable, as it could help interpret the ambiguous terms of the SOAs. The Court allowed Goiran to testify about general landowner expectations but excluded testimony on payment history due to lack of personal knowledge.

    B. Thomas Andrews

    Thomas Andrews’ Expert Report

    Plaintiffs hired Andrews to provide historical context regarding the land grant lands and the Surface Ownership Agreements (SOAs). His report was divided into four parts:

    1. “Origins and Development of Congressional Land Grant to Transcontinental Railroads”

    2. “The Denver Pacific Railway and the DP Land Grant”

    3. “Land Sales and Mineral Reservations”

    4. “Surface Owner Agreements: Motivations for Continuity, Departures from Tradition”

    Legislative History and Lobbying Leading to the Pacific Railway Acts

    In the first two parts, Andrews detailed the legislative history and lobbying that led to the passage of the Pacific Railway Acts, resulting in a congressional land grant to Union Pacific Railroad Company and other railroads for construction of the transcontinental railroad. In part 3, Andrews described how title became settled for land grants and how Plaintiffs’ surface lands were sold to their predecessors-in-interest. 

    However, Defendants argued that the first 15 pages of Andrews’ 17-page report were irrelevant. They also challenged the final two pages for containing “unfounded speculation” and for “improperly usurping the role of the jury. Defendants argued that parts 1-3 were irrelevant to the case’s key issue: the intent of the parties at the time they signed the SOAs. As for part 4, Defendants argued that Andrews simply “summarizes what he learned about SOAs from reviewing Plaintiffs’ favorite documents produced in discovery, many of which are themselves irrelevant to the dispute.” According to Defendants, these “were not appropriate expert opinions because they are unhelpful to the jury.”

    History of Surface Owner Agreements

    However, the Court disagreed with Defendants about part 4. Andrews’ testimony about the history of SOAs and the original parties’ motivations for entering them was deemed relevant. This information was related to Plaintiffs’ theory that the parties contracted to maintain good working relationships so as to avoid adverse legal and financial outcomes. Therefore, the Court held that part 4 simply purported to provide historical context as to why the SOAs were drafted in the way that they were and not usurp the role of the jury in determining what Section 2’s ambiguous terms mean.

    However, the Court agreed with Defendants that much—if not the vast majority—of parts 1-3 of Andrews’s report and related testimony is not relevant and will be excluded at trial. For example, the Court refused to permit Andrews’ testimony about the events predating the parties’ contract by a century, detailed accounts of politicians physically assaulting one another; stories of corruption by executives of the railroad companies during construction of the transcontinental railroad; the government’s issuance of title patents for lands to the railroad companies; and the familial and employment histories of the predecessors-in-interest to Plaintiffs’ surface lands. 

    Held

    In conclusion, the Court limited the opinions of Plaintiff’s real estate law expert witness, Philip Goiran and environmental history expert witness, Thomas Andrews.

    Key Takeaway:

    Goiran’s testimony on the parties’ payment history was excluded because he lacked personal knowledge of the data, a key factor for expert reliability. However, the Court relied on his insights into general landowner expectations, as his extensive experience and review of relevant agreements made this testimony pertinent.

    Finally, the Court limited Andrews’ testimony by excluding much of his testimony about events predating the parties’ contract and the familial and employment histories of the predecessors-in-interest to Plaintiffs’ surface lands, among other things.

    Case Details:

    Case Caption: Box Elder Kids, Llc Et Al V. Anadarko E & P Onshore, Llc Et Al
    Docket Number: 1:20cv2352
    Court: United States District Court, Colorado (Denver)
    Order Date: August 29, 2024
  • Vocational Rehabilitation Expert Witness’ Testimony about Reasonableness of Employment Termination Excluded

    Vocational Rehabilitation Expert Witness’ Testimony about Reasonableness of Employment Termination Excluded

    Plaintiff, the Equal Employment Opportunity Commission (“EEOC”), filed suit against Defendant, the Defender Association of Philadelphia, alleging that the Defender Association failed to provide “M.P.” with a reasonable accommodation for her disability and terminated her employment in violation of the Americans with Disabilities Act (“ADA”). EEOC filed a motion to exclude the Defender Association’s expert, Irene Mendelsohn.

    In July 2017, Megan Perez, after holding various attorney positions with Defendant for over a decade, began a medical leave of absence from her position as Supervisor of the Juvenile Special Cases Section, which required her to work on cases involving sex crimes. The leave was necessary due to Perez being diagnosed with Post-Traumatic Stress Disorder and Major Depression Disorder and requiring intensive treatment. On September 13, 2017, Perez, on the recommendation of her therapist, Laurie Patterson, requested two reasonable accommodations: (i) to remain on medical leave until January 2018, and, (ii) upon her return, to be transferred to a position that did not require her to work on cases involving sex crimes.

    While Perez was on leave, Patterson submitted a report (the “October 2017 Medical Memorandum”) to Lincoln Financial (“Lincoln”), Defendant’s short-term disability (“STD”) and long-term disability (“LTD”) insurance carrier. Despite the stated plan for Perez to return in January 2018, Defendant terminated her based entirely on Lincoln approving her for LTD benefits.

    Vocational Rehabilitation Expert Witness

    Irene Mendelsohn provides vocational assessments and vocational counseling including interviewing, transferable skills analysis, vocational testing, and labor market and vocational research.

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

    Discussion by the Court

    The Defender Association has produced the five-page expert report of Irene Mendelsohn, a vocational counselor, and sought to offer her expert testimony at trial. Although the Defender Association originally stated that this report would opine on whether M.P. could perform the essential functions of her job, the report instead discussed the reasonableness of Defendant’s decision to terminate M.P. (“the Termination Opinion”) and M.P.’s mitigation efforts after her termination (“the Mitigation Opinion”).

    A. The Termination Opinion

    Mendelsohn opined that the Defender Association’s decision to terminate M.P. was “reasonable” because “[M.P.’s] diagnoses amounted to a disability that made her unable to work as an attorney.”

    Mendelsohn provided four reasons to undergird her opinion that the termination of M.P. was “reasonable”: (1) In late November 2017 when the termination was decided, M.P. was not able to work due to her disability; (2) M.P. or her therapist, Laurie Patterson, could have objected to the termination prior to its actual occurrence, but neither did; (3) M.P. had been approved for STD and LTD benefits, which meant that she could not work as an attorney when she was terminated; and (4) M.P. continued to receive LTD benefits until the fall of 2018 and that “while it was obviously unknown by [Defendant] at the time of termination how long [M.P.] would remain disabled from working as an attorney, the length of time now known that she was disabled from engaging in that work lends strong support to the appropriateness of the decision.”

    The Court believed that the fact that M.P. received disability benefits does not in itself establish that she could not perform the essential functions of a job with reasonable accommodation after a certain time. Moreover, relying on the LTD benefits M.P. received after her termination is improper because it depends on information unknown to the Defendant at the time of M.P.’s termination and discounts potentially new reasons for her continuation of LTD benefits.

    The Court held that Mendelsohn relied on largely irrelevant facts, did not state a methodology, and reached a conclusion that would be unhelpful to a jury.

    The Mitigation Opinion

    Mendelsohn concluded that M.P.’s mitigation efforts were below appropriate job search efforts. Mendelsohn stated that her opinion is based on “multiple factors including the very low unemployment rate (particularly for individuals with higher levels of education), and that according to data provided by both the U.S. Department of Labor, the Office of Occupational Statistics and Employment Projects, and Chron., employment opportunities for attorneys were projected to grow at a high-very high rate.” Mendelsohn opined that M.P. should have obtained full-time employment within three to six months after she stopped receiving LTD benefits in November 2018. Mendelsohn did not clarify whether the “multiple factors” that she relied on were solely the data from the mentioned sources or whether she used additional factors. Nor did Mendelsohn attach the specific rates and data that she relies upon, leaving the Court in the dark as to how she employed the data in her analysis.

    Held

    The Court granted Plaintiff’s motion to exclude the report and recommendation of Irene Mendelsohn.

    Key Takeaways:

    • Since Mendelsohn relies on largely irrelevant facts, does not state a methodology, and reaches a conclusion that would be unhelpful to a jury, her opinion on the reasonableness of the Defender Association’s termination decision will be excluded.
    • Mendelsohn did not articulate any methodology for reaching her conclusion. Instead, the Court must guess how “multiple factors” led her to conclude that M.P. should have been employed within three to six months after she stopped receiving benefits. Because the mitigation opinion is conclusory and will not assist the trier of fact, it will be excluded.

    Case Details:

    Case Caption: Equal Employment Opportunity Commission V. Defender Association Of Philadelphia
    Docket Number: 2:19cv1803
    Court: United States District Court, Pennsylvania Eastern
    Order Date: August 29, 2024
  • Testimony of Accounting Expert Witnesses Admitted Despite Using a Different Form of Calculation

    Testimony of Accounting Expert Witnesses Admitted Despite Using a Different Form of Calculation

    This case arises out of a fee dispute between Defendant, CMR Construction & Roofing, LLC and Plaintiff, Crescent City Remodeling, LLC. CMR contracted Crescent to perform remediation work at Tangipahoa Parish School Board buildings following Hurricane Ida. Crescent later alleged that CMR breached the parties’ Joint Work Agreement by failing to compensate Crescent for its work.

    On May 22, 2023, CMR impleaded Third-Party Defendant, Castle, arguing that CMR had paid Castle the full amount due to both Castle and Crescent, but that Castle had failed to pay Crescent its share.

    CMR filed a motion to exclude the report and opinions of Crescent’s experts John W. Theriot and Jason R. Schellhaas because it did not comply with Federal Rule of Evidence 702.

    Accounting Expert Witnesses

    John Theriot is a Certified Public Accountant, Certified Forensic Accountant, and Certified in Financial Forensics.  He is a member of the American Institute of Certified Public Accountants, the Louisiana Society of Certified Public Accountants, and the American College of Forensic Examiners. He received his Bachelor of Science in Accounting from Nicholls State University in 1983, and he received his Masters in Accounting from Tulane University in 2004.  Theriot began his career in public accounting upon graduating from Nicholls in 1983 as a staff accountant at Malcolm M. Dienes.  He is now the managing partner of the firm and has over 30 years of experience in the field of public accounting. 

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

    Jason R. Schellhaas is a Partner at Malcolm M. Dienes, LLC. He primarily practices in the areas of tax compliance and tax planning for individuals, entities and estates; forensic accounting and litigation support services; business valuations; and audits, reviews, compilations and preparation of financial statements of small businesses.

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

    Discussion by the Court

    To begin with, CMR argued that the experts’ testimony is not reliable, arguing that the assumptions, provided by Crescent’s counsel, informed the experts as to what conclusion they should reach and caused the experts to render legal opinions. Specifically, CMR took issue with the second assumption, which stated: “The project manager fee and sales commissions should not impact the payment due to CCR, as these amounts should be based on CMR’s 50% of the profit, rather than the entire profit which was to be allocated between CCR and CMR 50% / 50%.”

    Reliability

    First, both individuals are certified public accountants; the Court believes they used reliable methods and have satisfactory skills and training. Second, the Court is not persuaded that this assumption renders the opinion unreliable; the calculations in CMR’s report applied the commission to the profit of the entire job—before the 50-50 split between CMR and Crescent. This report merely assumes a different form of calculation. To the extent that the assumption affects the experts’ reliability, that issue goes to the weight of the evidence, not to its admissibility.

    Relevance

    CMR also moved to exclude the experts’ report on the basis that it is not relevant. In support, it cited cases in which the trial court barred testimony because it was speculative. CMR also challenged this report based on an allegation that the opinions “are the product of incomplete and inaccurate information, as well as based on incorrect assumptions and the blanket adoption of [Crescent’s] legal position.” The Court found the opinions relevant. First, the opinions are based on data in discovery and from the report it rebuts. Second, the opinions detail what the profit would be if the commission were calculated differently than it was in CMR’s expert report. This challenge goes to the weight of the evidence, not to its admissibility. The opinions expressed by Crescent’s experts satisfy the requirements of Daubert.

    Finally, the Court noted that CMR’s report has not been challenged, despite its application of a different interpretation of the underlying contract. The underlying legal issue—the interpretation of the contract—is an issue upon which the Court has not yet ruled. It would be premature to exclude only one expert’s testimony related to damages merely because it assumes a possible interpretation, absent a ruling on the proper interpretation of the contract’s language.

    Held

    In conclusion, the Court denied CMR’s motion to exclude the opinions of John W. Theriot and Jason R. Schellhaas.

    Key Takeaway:

    The opinions of Theriot and Schellhaas meet the Daubert standards as they are based on data in discovery and from the report it rebuts. Moreover, the opinions detail what the profit would be if the commission were calculated differently than it was in CMR’s expert report.

    Case Details:

    Case Caption: Crescent City Remodeling,Llc V. Cmr Construction & Roofing, Llc
    Docket Number: 2:22cv859
    Court: United States District Court, Louisiana Eastern
    Order Date: August 27, 2024