Expert Witness Profiler

Tag: Reliable

  • Class List Prepared By Consumer Protection Expert Witness Using Standard Data Analysis Techniques Admitted

    Class List Prepared By Consumer Protection Expert Witness Using Standard Data Analysis Techniques Admitted

    Congress enacted the Telephone Consumer Protection Act (TCPA) to mitigate intrusive telemarketing practices. The TCPA “prohibits calls to numbers on the national Do-Not-Call registry [“NDNCR”].”

    To help combat telemarketing calls to numbers on the NDNCR, a database that lists the telephone numbers of individuals who have requested that telemarketers not contact them, the TCPA created a “consumer-driven process that would allow objecting individuals to prevent unwanted calls to their homes.”

    The TCPA prohibited telephone solicitations to a “residential telephone subscriber who has registered his or her number on the national donot-call registry.” Mantha, on behalf of the putative class, alleged a single claim: “by sending more than one call in a 12-month period to a residential telephone number listed on the [NDNCR] without express written consent, QuoteWizard violated the TCPA’s do-not-call registry provisions.”

    On October 29, 2019, Mantha brought a class action lawsuit against QuoteWizard in this Court, alleging violations of the TCPA.

    Plaintiff Joseph Mantha filed a motion for class certification while QuoteWizard filed a motion to exclude the testimony of Anya Verkhovskaya, Mantha’s expert witness.

    Consumer Protection Expert Witness

    Anya Verkhovskaya is a nationally recognized expert witness who has provided expert analysis, testimony, and litigation support services in federal and state class actions relating to the TCPA, consumer protection, human and civil rights, securities fraud, ERISA, antitrust, pharmaceuticals, and insurance, as well as in fairness actions before the U.S. Securities and Exchange Commission, among others. Verkhovskaya has been a pioneer in methods of analyzing mass consumer data, including telephone call and text message records and voice recordings numbering in the billions.

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

    Discussion by the Court

    Mantha proposed a Class defined as follows:

    “All persons within the United States (a) whose residential telephone numbers were listed on the National Do Not Call Registry, and (b) who received more than one telemarketing text within any twelve-month period at any time from Drips, (c) to promote the sale of QuoteWizard’s goods or services, and (d) whose numbers are included on the Class List.”

    Mantha’s expert, Verkhovskaya, prepared the “Class List” described in the proposed Class Definition. Using standard data analysis techniques, she prepared a list, substantially at the direction of counsel for Mantha, of a subset of persons who satisfy the proposed Class Definition, while eliminating potential legal or factual issues by narrowing the Class.

    From this process, Verkhovskaya found that QuoteWizard had sent 314,828 text messages to 66,693 telephone numbers that “satisfied the [NDNCR] requirements of having received, on a residential number listed on the national do-not-call registry, more than one text message[] in a 12-month period.”

    In challenging the proposed Class List and seeking to exclude Verkhovskaya’s analysis, QuoteWizard raised several criticisms.

    Verkhovskaya’s Methodology Does Not Identify Mantha

    QuoteWizard alleged that Verkhovskaya’s testimony should be rejected because her process failed to identify Mantha, whom she manually added to the Class List.

    The Court already found that (i) Mantha listed his number on the NDNCR, (ii) his number is residential, (iii) QuoteWizard sent him eight text messages in ten days, and (iv) the texts from QuoteWizard amounted to “telephone solicitations” within the meaning of the TCPA.

    Thus, Mantha met parts (a) through (c) of the proposed Class Definition. He met part (d) when Verkhovskaya added him to the proposed Class List. Nothing more is legally required.

    Verkhovskaya has not represented that her methodology identifies everyone from the files obtained from QuoteWizard who could possibly fit within the proposed Class Definition. Rather, she offers her data analysis as a means of identifying a subset of all possible class members for certification as a class. The Court held that it is irrelevant for Daubert purposes that she manually added Mantha to the Class List.

    Decisions of Other Courts Considering Verkhovskaya’s Reports

    QuoteWizard urged this Court to exclude Verkhovskaya based on the rulings of other courts. The Court has reviewed the various cases cited by QuoteWizard where other courts have excluded Verkhovskaya’s methodology, as well as other cases cited by Mantha.

    QuoteWizard relied principally upon two cases arising under different sections of the TCPA which, necessarily, entailed different analyses by Verkhovskaya. The Court held that these cases are not persuasive here. As to the other cases cited by QuoteWizard in its motion, they either involved the denial of Daubert motions to exclude Verkhovskaya’s testimony or did not involve Daubert motions at all. 

    Reliability of the PacificEast Data

    QuoteWizard next alleged that Verkhovskaya’s testimony should be rejected because she used “unreliable” data from PacificEast in formulating her opinions.

    PacificEast is a “data processing service provider.” It has been in business for over twenty years. One service it offers, labeled the “NDNCR Lookup Service,” provides information about whether a phone number appears on the NDNCR. Verkhovskaya retained PacificEast to perform this service. This is how she determined whether a phone number appears on the NDNCR. The Court held that using a widely available, long-standing, commercial service to run a database check is a perfectly normal and reasonable methodology.

    Next, Verkhovskaya used the “Business Number Lookup”—another service offered commercially by PacificEast. As part of this service, PacificEast reports whether a number is a “business” or “residential” number. The Court is not now evaluating the correctness of Verkhovskaya’s opinions, only their admissibility. In this case, Verkhovskaya was not using this service to conclusively determine whether a number was “residential.” Rather, it aided her in narrowing the proposed Class List to numbers that are more likely to be residential.

    Finally, to the extent QuoteWizard challenges more generally the “residential” determination Verkhovskaya did make, the Court held that her opinions withstand the exclusion motion. Numbers on the NDNCR are presumed residential. Of course, QuoteWizard itself is the source of the original list of numbers, and the fact that it was aiming its telemarketing campaign at consumers tends to suggest the original list is comprised of residential numbers. Moreover, Verkhovskaya eliminated numbers with current business associations. 

    Of course, even if her use of PacificEast has left some errors in her proposed Class List, such that some of the members of the proposed Class List do not meet the Class Definition, the Court held that this does not warrant exclusion of her testimony.

    QuoteWizard’s “False Positives” Challenge

    QuoteWizard next alleged that Verkhovskaya’s testimony should be excluded because her methodology has a high error rate, illustrated by a number of “false positives” or phone numbers presently on the proposed Class List that should not be. 

    Insofar as QuoteWizard contended, in connection with either pending motion, that 68% of the users on the proposed Class List lack standing to bring a TCPA claim because they did not register their numbers on the NDNCR, the Court disagrees. There is no statutory requirement that the phone number’s user—as opposed to the subscriber—register the number. Rather, the TCPA afforded a private right of action to a “person who has received” calls placed “in violation of” the statute’s regulations.

    The Court added that the method Verkhovskaya selected—using a commercially available service for its intended purpose—is a reliable one. This date-focused challenge rests on speculative inferences arising from an unexplained email. Even assuming, for purposes of this Motion only, that the June 1, 2003, date reflects an error or problem in the data—the error is a weight, not admissibility, issue. 

    Held

    The Court denied QuoteWizard’s motion to exclude the testimony of Anya Verkhovskaya and allowed Mantha’s motion for class certification.

    Key Takeaway:

    The focus in a Daubert challenge is not “primarily concerned with a proposed expert’s conclusions,” but with “making a ‘preliminary assessment of whether the methodology underlying the testimony is scientifically valid and of whether that methodology properly can be applied to the facts in issue.’”

    Case Details:

    Case Caption: Mantha V. Quotewizard.Com, Llc
    Docket Number: 1:19cv12235
    Court: United States District Court, Massachusetts
    Order Date: August 16, 2024
  • Obstetrics and Gynecology Expert Witness’ Testimony About Medical Necessity of Certain Procedures Performed Admitted

    Obstetrics and Gynecology Expert Witness’ Testimony About Medical Necessity of Certain Procedures Performed Admitted

    In this defamation lawsuit, Plaintiff Mahendra Amin (“Amin”), a doctor, alleged that Defendant Nbcuniversal Media, LLC aired several broadcast segments on MSNBC which included multiple false and defamatory statements about Amin and his medical treatment of detainees at Irwin County Detention Center (ICDC). To support his case, Amin retained Eldridge Bills to review the medical records of the Plaintiff’s patients and provided opinions on the medical necessity of various procedures Amin had performed.

    The Defendant filed a motion to exclude Eldridge Bills’ testimony as it was claimed to be unreliable and inconsistent with the Daubert Standard and Rule 702.

    Obstetrics and Gynecology Expert Witness

    Elbridge Frederick Bills II, M.D., F.A.C.O.G., is an expert in obstetrics and gynecology based in Georgia. He holds medical licenses in both Florida and Georgia and was certified by the American Board of Obstetrics and Gynecology. He earned his medical degree from Emory University School of Medicine in 1989. Afterwards, he completed his residency at the University of South Florida Morsani College of Medicine in 2001. He also finished a fellowship at Emory University School of Medicine. At present, he practices in Alpharetta, Georgia.

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

    Discussion by the Court

    Bills’ Medical Knowledge and Experience Support His Opinions

    Defendant challenged Bills’ methodology, arguing it lacked reliability. They contended that Bills failed to apply his specific experience to this case or support his opinions with medical records.

    Moreover, they noted that Bills did not reference medical literature or guidelines in his report or deposition. They argued that his opinions were merely assertions without supporting evidence.

    In contrast, Plaintiff asserted that Bills’ methodology was reliable due to his 30 years of experience as an OB/GYN. His previous experience as an expert witness in five trials was also highlighted.

    To establish reliability, Bills needed to demonstrate a clear connection between his experience and his opinions. He did so by explaining how his OB/GYN background informed his analysis. His report listed his qualifications and detailed his review of 69 patient records, focusing on the medical appropriateness of procedures.

    Defendant’s objections to Bills’ methodology did not justify excluding his testimony. They argued that Bills’ opinions lacked data, methodology, or study, characterizing them as mere assertions. However, Bills utilized his OB/GYN experience and medical knowledge to review patient records and link his expertise to his opinions. He referenced relevant medical literature and studies during his deposition. The Court found that Defendant’s issues were about the weight of the testimony, not its admissibility. As such, challenges to expert testimony should be addressed through cross-examination, not exclusion. Bills’ opinions were deemed to be based on a reliable methodology.

    Bills’ Opinions Are Based on Sufficient Facts and Data

    Bills’ expert report claimed that every procedure by Amin was “medically indicated as documented by various modalities including the history and physical, preoperative ultrasound evaluation, intraoperative surgical images documentation, and final pathology.” Defendant argued that Bills did not specify which modalities he considered in his review of each of the 69 patient records. Defendant also pointed to Bills’ deposition testimony, in which he acknowledged some ultrasound images and surgical images were either low resolution or not clear enough for him to conduct an independent evaluation. 

    The Court found Bills’ opinions are based on a reliable methodology, in that they are based on sufficient data and the “modalities” he considered are sufficiently discernible. He provided sufficient detail about how he applied his experience to his medical records review and he discussed individual patient considerations and modalities throughout his deposition testimony.

    Additionally, in Bills’ supplemental chart, he lists each patient chart reviewed, relevant preoperative notes for each patient, and the corresponding treatment and procedure for each patient and notes any missing documentation for each patient chart.

    Bills Provides Sufficient Analysis to Support His Opinions

    Defendant argued Bills provided no analysis supporting his opinion every surgery Amin performed was “medically indicated” and, therefore, his methodology is unreliable. Defendant argued Bills included generalized statements about why a doctor could perform these surgeries in his expert report, but he does not explain how each patient’s medical records led him to conclude the surgery Amin performed was medically indicated. 

    The Court held that Bills reviewed a collection of patient medical records and offered a categorical opinion about all of the procedures on those patients. Bills explained how (i.e., the methodology) he formed that opinion. Defendant has failed to show anything unreliable about that methodology. Defendant, instead, contended Bills was required to explain how he assessed each and every procedure in order for Bills’ overall methodology to be deemed reliable.

    Bills’ Presumptions Do Not Warrant Exclusion

    Defendant argued that Bills’ methodology was unreliable due to several inadequately explained assumptions. Specifically, Defendant noted Bills’ presumptions about Plaintiff’s patients being high-risk and indigent, consenting to surgery, and facing possible deportation without notice. Defendant also contended that Bills presumed cysts were removed because they caused pain, despite some patients’ cysts being undocumented.

    In response, Plaintiff argued that these assumptions were reasonable given Bills’ experience and the medical records reviewed. Plaintiff asserted that reasonable inferences are acceptable in expert testimony and that Defendant could address these issues through cross-examination.

    The Court found that Bills’ assumptions were based on reasonable inferences drawn from available data and personal experience. Although the assumptions might not be entirely correct, they provided a reasonable factual basis for Bills’ opinions. Therefore, the Court concluded that Bills’ methodology was reliable and did not warrant exclusion.

    Held

    The Court denied Defendant’s motion to exclude the opinions of Plaintiff’s obstetrics and gynecology expert witness, Eldridge Bills.

    Key Takeaway:

    The Court denied Defendant’s motion to exclude Eldridge Bills’ testimony, finding it reliable under the Daubert standard. Although Defendant argued Bills’ methodology lacked specificity and relied on inadequate assumptions, the Court determined his expert opinions were supported by his extensive OB/GYN experience and medical records review.

    Bills had categorized patient cases and provided explanations in his reports and deposition, despite some generalizations. The Court viewed the Defendant’s concerns as issues of weight rather than admissibility, suitable for cross-examination rather than exclusion. Bills’ reasonable inferences and thorough analysis were deemed sufficient to support his opinions.

    Case Details:

    Case Caption: Amin V. Nbcuniversal Media, Llc
    Docket Number: 5:21cv56
    Court: United States District Court for the Southern District of Georgia, Waycross Division
    Order Date: July 11, 2024
  • Mortgage Lending Expert Witness’ Testimony Regarding Deviation from HUD Standards Limited

    Mortgage Lending Expert Witness’ Testimony Regarding Deviation from HUD Standards Limited

    On November 22, 2019, Plaintiffs Alfredo and Chelsie Dominguez (“collectively “Plaintiffs” or “Dominguez”) refinanced their manufactured home with Wallick & Volk, working with loan originator and W&V employee, Christina Bingham. In February 2020, W&V sold the loan and transferred servicing to The Money Source, Inc. (“TMS”). Nine months later in November 2020, Plaintiffs’ hazard insurance policy premium became due but was not paid by TMS from the loan servicer’s escrow account, resulting in cancellation of the policy on February 6, 2021, for non-payment of premium. On March 22, 2021, more than a year after W&V transferred the loan to TMS, the home suffered severe fire damage.

    Plaintiffs sought to recover approximately $300,000 for the loss of real and personal property, as well as emotional distress damages and attorney fees, resulting from the fire that destroyed their home on March 22, 2021.

    Defendant The Money Source, Inc. (“TMS”) filed a motion to exclude Plaintiffs Alfredo Dominguez and Chelsie Dominguez’s (“Plaintiffs”) expert Curtis Novy’s expert reports and testimony.

    Mortgage Lending Expert Witness

    Curtis L. Novy is a licensed financial crimes investigator and seasoned mortgage & real estate expert witness with many years of experience. His work focuses on complex investigations, corporate risk management, elder financial abuse, private equity & family office investigations, and providing court certified expert witness testimony. 

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

    Discussion by the Court

    Qualifications

    TMS first argued that Novy is unqualified to offer mortgage servicing opinions because his expertise is in mortgage fraud investigations and underwriting.

    Novy, however, has over 30 years of experience in commercial and residential lending, which includes “loan servicing compliance.” Since 1997, Novy has served in various capacities in the mortgage industry—his expertise includes lending operations, mortgage banking standards and practices, and ensuring loans meet industry standards. Furthermore, since 1997, Novy has been retained as a subject matter expert and consultant, where his areas of testimony included mortgage lending for both commercial and residential mortgages. Novy also testified that he received Housing and Urban Development (“HUD”) training as to loan servicing matters and he has reviewed loan servicing records as part of his role in compliance and auditing. The Court therefore found Novy’s qualifications met the knowledge and experience of an expert to discuss the mortgage servicing industry.

    In their response, Plaintiffs attached a declaration from Novy expounding upon his expertise and expert conclusions. The Court held that this declaration amounts to an untimely supplemental expert report because it was produced after the deadline to disclose supplement expert witness opinions.

    Reliability

    TMS argued that Novy’s opinion lacks reliability, calling it speculative and full of legal conclusions.

    Preliminary Report Opinion No. 4

    TMS argued that opinion number 4 in Novy’s preliminary report improperly opined that “TMS failed to properly audit the loan file from Wallick & Volk and therefore accepted all liability and risks.” Novy relied on HUD regulations to reach this conclusion. TMS also argued that Novy did not identify the correct HUD regulations in his deposition testimony.

    The Court found that this statement is an improper legal conclusion because Novy concluded that TMS violated HUD standards and accepted liability. As an expert, Novy may address the factual question of whether TMS deviated from the customs, practices, and standards of the mortgage industry, but not the ultimate legal issue of whether TMS is liable. 

    TMS also argued that Novy improperly testified that Chelsie Dominguez “had no obligation to provide TMS with the Perkin Insurance Policy” because he “had not reviewed the Deed of Trust” to verify who was required to provide proof of insurance. In fact, Novy’s report explained that he did review the Deed of Trust. He testified at this deposition that he did so but could not “recollect the exact wording in there.” Therefore, the Court found this testimony reliable.

    Supplemental Report Opinion No. 5

    TMS argued that Novy’s opinion number 5, concluding that TMS failed to service the loan to HUD standards, was unreliable. TMS failed to develop this argument. The Court found that Novy’s conclusion was reliable because he had “a sufficient basis to support an opinion.”

    Novy relied on TMS procedures, loan servicing records, deposition testimony, HUD QC Audit Checklist, and his knowledge of industry standards and practices.

    The Court reserved the question of whether Novy’s opinion that TMS did not service the loan to HUD standards as an improper legal conclusion for trial.

    Supplemental Report Opinion No. 6

    TMS argued that Novy’s opinion number 6, which concluded that TMS failed to properly monitor its subcontractor work, was unreliable because he never managed or oversaw an insurance vendor.

    The Court found that Novy’s opinion is reliable. Novy testified that he relied on the deposition testimony of Linda Case, who was responsible for managing Assurant, TMS’s servicing vendor. Novy also relied on HUD regulations and “QC plan standards.” 

    Supplemental Report Opinion No. 7

    TMS argued that Novy’s opinion number 7, which concluded that it was improper of TMS to place Plaintiffs’ loan in default status, was unreliable because Novy testified that he did not know the reason the loan was put in default status.

    The Court found Novy’s opinion reliable because he had “a sufficient basis to support the opinion.” Novy reviewed TMS procedures, loan servicing records, deposition testimony, and HUD QC Audit Checklist, which includes property insurance verification. Using these materials and his expertise, Novy concluded that it was improper to put the loan in default status. 

    Supplemental Report Opinion No. 8

    TMS argued that Novy’s opinion number 8, concluding that TMS did not follow FHA (“Federal Housing Administration”) Guidelines to ensure that hazard insurance is filed and settled “expeditiously,” was unreliable because Novy testified that he had no opinion as to the industry standard timing. 

    The Court found Novy’s opinion reliable because his conclusion was based on his knowledge and experience from the industry. Novy testified that HUD does not set a timeline but that “based on [his] 30-plus years of experience” the timing should be between 30 days to 90 days.

    Held

    The Court granted in part and denied in part the Defendant The Money Source, Inc.’s motion to exclude expert Curtis Novy’s reports and testimony. It also struck Curtis Novy’s declaration.

    Key Takeaway:

    Novy reviewed TMS procedures, loan servicing records, deposition testimony, and HUD QC Audit Checklist and used his extensive knowledge of industry standards and practices to arrive at his conclusions. However, Novy may address the factual question of whether TMS deviated from the customs, practices, and standards of the mortgage industry, but not the ultimate legal issue of whether TMS is liable. 

    Case Details:

    Case Caption: Dominguez Et Al V. Wallick And Volk Incorporated Et Al
    Docket Number: 2:22cv768
    Court: United States District Court for the District of Arizona
    Order Date: August 23, 2024
  • Testimony of Economics Expert Witness Excluded Because of his Inability To Produce a Coherent Model

    Testimony of Economics Expert Witness Excluded Because of his Inability To Produce a Coherent Model

    Plaintiffs brought an antitrust lawsuit against Defendants, asserting that Defendants entered a set of agreements with each other and their broadcast partners that suppressed the output of telecasts of out-of-market professional football games, resulting in higher prices for Sunday Ticket.

    Since Judge Philip Gutierrez decided the opinions provided by the Plaintiffs’ expert witnesses regarding financial damages were not reliable, the Sunday Ticket Plaintiffs won’t be getting a mulligan on damages, at least not for now.

    Daniel Rascher, one of the expert witnesses whose testimony was allowed until it wasn’t, crafted a model based on the NFL ditching Sunday Ticket and selling the out-of-market games to various networks that would broadcast the feeds from CBS and Fox.

    Economics Expert Witness

    Daniel Rascher has taught sports economics and finance, business research methods, and master’s project. As President of SportsEconomics, his clients have included organizations involved in the NBA, NFL, MLB, NHL, NCAA, NASCAR, MLS, PGA, WTA, media, sporting goods and apparel, professional boxing, mixed martial arts, minor league baseball, NHRA, AHL, Formula 1. He has authored articles for academic and professional journals, book chapters, and a text book in the sport management and economics fields, has been interviewed hundreds of times by the media for his opinion on various aspects of the business of sports, and has given over fifty presentations at professional and academic conferences.

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

    Discussion by the Court

    Rascher used college football as his model of what would happen in the absence of the competitive restraints at issue in the case (“college football but-for world”). He opined that if the NFL Teams stopped “colluding and selling” their out-of-market games through the NFL, but sold them either independently or in divisions, the result would be like college football as the games would “become available, just like on Saturday, on over-the-air channels and . . . basic sport cable channels” and customers would not “pay anything extra above what they were already paying for their TV package.”

    Judge Gutierrez held that Rascher’s failure to produce a coherent model is particularly problematic as there are significant differences between college football and the outcome in his college football but-for world. Unlike Rascher’s college but-for world, not all college football games are available on over-the-air networks and on the major cable stations as some college football games—including games of top 25 ranked teams—were available only by purchasing premium offerings like the Pac 12, SEC, or ACC network packages or viewable only on local regional networks.

    The judge upheld the finding that Sunday Ticket, as constructed, violated federal antitrust laws. 

    From June 5, 2024 to June 26, 2024, a trial took place, where the jury found that Defendants’ conduct violated § 1 and § 2 of the Sherman Act. The jury awarded the Commercial Class $96,928,272.90 and the Residential Class $4,610,331,671.74 in damages.

    Judge Gutierrez specifically found that there was enough evidence to justify the verdict as to the issue of liability. He threw the verdict out because he determined that the expert witnesses he allowed to testify weren’t reliable.

    Held

    The Court excluded Daniel Rascher’s testimony under FRE 702 because it relied on a college football model that was developed based on speculation and ipse dixit opinion.

    Key Takeaway:

    After review of Rascher’s testimony, the Court finds that his college but-for world was not based on a reliable methodology but rather ipse dixit opinion untethered to an economic analysis of what would have likely occurred in the but-for world and must be excluded. Rascher had to present a but-for world grounded in economic rationality.

    Case Details:

    Case Caption: In re: NFL “Sunday Ticket” Antitrust Litigation
    Docket Number: 2:15ml2668
    Court: United States District Court for the Central District of California
    Order Date: August 01, 2024
  • Orthopedic Surgery Expert Witness’ Opinion on Alleged Personal Orthopedic Injuries Admitted

    Orthopedic Surgery Expert Witness’ Opinion on Alleged Personal Orthopedic Injuries Admitted

    Plaintiff Rickie Russell, Jr. (“Russell) alleged that, on August 13, 2021, Terry Delmer Prater (“Prater”) crashed an 18-wheeler truck into Russell’s roadside work crew Russell claimed he was pinned between two vehicles and suffered serious injuries as a result of that motor vehicle collision. Russell brought suit against Defendants Prater and Big V Feeds, Inc. for the injuries he sustained.

    As part of their defense, Defendants retained Vishal Patel, M.D. to offer expert testimony. Russell filed a motion to exclude Dr. Patel’s testimony because: 1) Patel lacks proper qualifications as an expert; and 2) his methodology is unreliable.

    Orthopedic Surgery Expert Witness

    Vishal Patel has been board certified by the American Board of Orthopaedic Surgery since 2015, a Fellow of the American Academy of Orthopaedic Surgeons since 2019, and an attending spine surgeon for over ten years. Patel’s medical practice is devoted to orthopedic surgery, and he maintains a full, unrestricted license to practice medicine.

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

    Discussion by the Court

    Patel has sufficient qualifications to serve as an expert

    First, Russell argued that Patel lacked the requisite qualifications to serve as an expert in the present case because he “has never physically examined Russell, listened to his complaints, and would not even recognize Russell if he was standing across the hall from him.”

    Russell seemed to contend that because Patel did not treat Russell, Patel is not qualified to serve as a retained expert physician. However, that cannot be the case. To hold otherwise would be to exclude all retained expert physicians.

    After reviewing Patel’s curriculum vitae, the Court was satisfied with his education, training and experience to qualify him to offer his opinion on Russell’s alleged personal orthopedic injuries and the reasonableness and necessity of Russell’s medical treatment.

    Patel’s methodology is reliable

    After reviewing Patel’s expert report, the Court found that his methodology is reliable.

    The Court held that Patel identified the medical records for Russell that he reviewed and then summarized those records in detail in his report. Thereafter, he applied his education, training, experience, and knowledge of the medical facts within the medical records to reach his opinions regarding Russell’s personal orthopedic injuries and necessity of medical treatment in reasonable medical probability. Therefore, Patel has sufficiently described his methodology and has adequately supported his opinions such that his methodology is reliable.

    Additionally, Russell argued that Patel’s methodology was not reliable because “[a] diagnosis typically involves a physician physically examining a patient, to which there is no argument that Patel did not examine Russell.” The Court held that a retained expert physician’s role is to “examine a patient’s medical files and reach a conclusion about the diagnosis.”

    Held

    The Court denied Plaintiff’s motion to exclude the testimony of Vishal Patel.

    Key Takeaway:

    Russell argued that Patel lacked the requisite qualifications to serve as an expert in the present case because he “has never physically examined Russell, listened to his complaints, and would not even recognize Russell if he was standing across the hall from him.” The Court held that a retained expert physician’s role is to “examine a patient’s medical files and reach a conclusion about the diagnosis.”

    Please refer to the blog previously published about this case: Neurology Expert Witness’ Opinions About the Potential Presence of a Mild Traumatic Brain Injury Admitted

    Case Details:

    Case Caption: Russell, Jr. V. Big V Feeds, Inc. Et Al
    Docket Number: 4:23cv622
    Court: United States District Court, Texas Eastern
    Order Date: August 16, 2024
  • Insurance Expert Witness’ Testimony Regarding the Storm Damage and Cost of Necessary Repairs Admitted

    Insurance Expert Witness’ Testimony Regarding the Storm Damage and Cost of Necessary Repairs Admitted

    This case arises from a claim for wind/hail damage that allegedly occurred on or around December 5, 2021. The damage occurred to Plaintiffs’ property located at 16207 E. 47th Place, Tulsa, Oklahoma. State Farm inspected the home twice and found minor hail damage. State Farm did not observe any hail damage to the roof itself. According to State Farm, the minor hail damage observed did not exceed the deductible; therefore, no payment was issued.

    Plaintiff designated R. Sean Wiley as a construction and insurance industry expert to testify regarding his assessment of hail and wind damage to Plaintiffs’ roof and the estimated replacement cost. 

    Defendant sought an order barring Plaintiff from calling Wiley as an expert witness on the grounds that his opinions were unreliable and inadmissible under Rule 702.

    Insurance Expert Witness

    Randy (Sean) Wiley is the President of JW Construction Management Inc. and works as insurance appraisal and umpire in insurance claims. He also works as a construction consultant for insurance carriers.

    Want to know more about the challenges Randy (Sean) Wiley has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    The Court held that Wiley is qualified to provide expert opinions in the areas of his proposed testimony.

    Reliability and Relevance

    Defendant challenged Wiley’s expert opinions as speculative solely because Defendant believed Wiley was first retained after an “historic Father’s Day storm struck Plaintiffs’ neighborhood” in June 2023. Based on this belief, Defendant assumed “Wiley’s ‘multiple inspections’ likely occurred after the Father’s Day storm,” and Defendant faulted Wiley for failing to address that storm “or provide an explanation of how he links all of the alleged damage he reports to the 2021/2022 storms” underlying Plaintiffs’ insurance claim.

    Plaintiff stated that “Wiley first inspected the Bales’ home on June 3, 2022, more than a year before the Father’s Day storm” and provided a one-page affidavit from Wiley so stating. Wiley also stated that his report “discusses damage that was present during my June 3, 2022 inspection.”

    The Court found that Defendant’s criticism of Wiley’s opinions was unfounded.

    Defendant attempted to avoid this conclusion by attacking Wiley’s affidavit as an untimely supplemental report. Defendant argued at length that Rule 26(a) required Wiley to provide a complete statement of his opinions and their basis in his original report and that his affidavit is a supplemental disclosure that should be disregarded. 

    Rule 26

    The Court held that Wiley’s affidavit served only to correct Defendant’s factual error. Apparently, Defendant elected not to depose Wiley but assumed facts regarding his work based on certain deposition testimony of Bales. But for Defendant’s error, Wiley’s affidavit would have been unnecessary. The affidavit consisted of four simple sentences identifying the dates of Wiley’s inspections and stating that he personally observed the damage discussed in his report. Except the first date, which became material solely because of Defendant’s motion, Wiley’s original report contained the same information. Plaintiffs’ new “disclosure” was not made because they “learn[ed] that in some material respect [Wiley’s report] is incomplete or incorrect.”

    Held

    The Court denied  Defendant’s Daubert motion to exclude the testimony of Plaintiffs’ expert R. Sean Wiley.

    Key Takeaway:

    Defendant made an incorrect factual assumption concerning the timing of Wiley’s first inspection. With that mistake corrected, Defendant had no substantial basis to challenge the reliability of Wiley’s opinions regarding the storm damage and the cost of necessary repairs.

    Case Details:

    Case Caption: Bales Et Al V. State Farm Fire And Casualty Company
    Docket Number: 5:22cv851
    Court: United States District Court, Oklahoma Western
    Order Date: August 16, 2024

  • Accounting Expert Witness’ Testimony About the Deduction of Expenses and Other Lease Burdens Excluded

    Accounting Expert Witness’ Testimony About the Deduction of Expenses and Other Lease Burdens Excluded

    This case arises out of an oil and gas royalty dispute between Flat River Farms and MRC Energy Company. Plaintiffs produced a one-page expert report prepared by George E. McGovern III, CPA, a certified public accountant (“CPA”). Based on his expert report, McGovern was tasked with determining if Plaintiffs’ royalties as determined by the Lease were underpaid. The report contains the following conclusions:

    • MRC received consistently lower payments for well production than industry standards.
    • MRC was not charged for expenses related to gas preparation.
    • The operator’s payment method doesn’t adhere to GAAP standards.
    • The operator transferred production ownership to a third-party at below-market cost. A third-party marketer then prepared the product for sale.
    • The gas’s monetary value to MRC and royalty payments were discounted to cover expenses and lease burdens

    The Court addressed two motions relating to McGovern filed by Defendant MRC Energy Company (“MRC”). McGovern is Plaintiffs’ expert witness. The first motion is a Daubert motion to exclude the testimony of McGovern. More specifically, MRC seeks to exclude or limit at trial any opinion testimony from McGovern on the element of damages. MRC contends that McGovern’s expert testimony is not based on sufficient facts or data, his testimony is not the product of reliable principles or methods, and he has not reliably applied the principles and methods to the facts of this case. MRC submits that his testimony would only serve to confuse the trier of fact.

    The second motion is a motion in limine to exclude McGovern’s expert testimony and report on the grounds that McGovern is unqualified to provide an expert opinion in this case and his testimony is not the product of reliable principles and methods.

    Accounting Expert Witness

    George E. McGovern III has been a Certified Public Accountant since 1972. He worked for international accounting firm Touche Ross (now Deloitte Touche) and was a full time accounting professor at Centenary College for eight years. He has qualified as an expert in oil and gas accounting, and testified as such in numerous cases across multiple jurisdictions.

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

    Discussion by the Court

    McGovern could not explain the basis of his conclusion

    During his deposition, McGovern was unable to explain his opinions in conjunction with actual evidence or analysis. He could not recall the prevailing industry rate for the respective time period and did not recollect the documents or information he had or that he used to establish the prevailing industry rate. He also could not explain the basis of his conclusion that MRC was paid at a price that was consistently lower than the prevailing and industry standard price for the respective time period.

    MRC contended that McGovern was unqualified to provide an expert opinion in the case

    To begin with, McGovern admitted that he had not prepared for the deposition. Based on the contents of the report and McGovern’s deposition testimony, MRC contended that McGovern was unqualified to provide an expert opinion in the case and that his report was not based on any reliable facts or data. MRC submitted that McGovern was unqualified to provide an opinion regarding the various methods of allocating and recouping expenses, and the various methods in which non-operating working interest owners were assessed costs, directly or indirectly, in the oil and gas production process. Besides, MRC maintained that McGovern’s trial testimony would not be the product of reliable principles and methods, and that he had not reliably applied the principles and methods to the facts of the case.

    The Court agrees that portions of McGovern’s opinions are not sufficiently grounded in any actual evidence or analysis, thereby rendering them void of the necessary indicia of reliability. Without more reliable methodology and factual support for his analysis, McGovern’s opinion that the per unit monetary value of the gas received by MRC, and upon which it paid royalties to Plaintiffs, does not reflect the true price, but rather a discounted price to account for the deduction of expenses and other lease
    burdens is inadmissible and would not be helpful to the jury. Rule 702 requires this Court to exercise its role as a gatekeeper and exclude such unreliable expert opinion. McGovern can provide no testimony regarding money, numbers or claimed damages as it relates to the instant matter. Notwithstanding, he is qualified as a CPA to opine on generally accepted accounting principles (“GAAP”) applicable to oil and gas royalty payments. Additionally, assuming the proper foundation is laid, McGovern may be able to opine generally on allocation of production and recouping expenses.

    Held

    In conclusion, the Court granted in part and denied in part MRC’s motions to exclude McGovern’s expert testimony.

    Key Takeaway:

    MRC contended that McGovern’s testimony is not based on sufficient facts or data and he is unqualified to provide an expert opinion in this case. The Court held that McGovern can provide no testimony regarding money, numbers or claimed damages as it relates to the instant matter. Notwithstanding, he is qualified as a CPA to opine on generally accepted accounting principles (“GAAP”) applicable to oil and gas royalty payments.

    Case Details:

    Case Caption: Flat River Farms L L C Et Al V. M R C Energy Co
    Docket Number: 5:19cv1249
    Court: United States District Court, Louisiana Western
    Order Date: July 30, 2024

     

  • Pensions Expert Witness’ Testimony on Benefits under ERISA’s Accrual Rules Admitted

    Pensions Expert Witness’ Testimony on Benefits under ERISA’s Accrual Rules Admitted

    Plaintiffs bring this suit under the Employee Retirement Income Security Act (ERISA).

    ERISA’s central object is to “protect employees’ justified expectations of receiving the benefits their employers promise them.” This case centers on the Coastal Transition Benefit, a benefit formula that originated in the Coastal Plan and that, through a series of corporate transactions, now appears in the Plan. Plaintiffs alleged the Coastal Transition Benefit formula improperly accrued benefits over participants’ entire careers rather than over their first 30 years of service in violation of various provisions of ERISA.

    As the Court knows, two of Plaintiffs’ claims—Claims I and VI—center on Plaintiffs’ contentions that the Coastal Transition Benefit formula is impermissibly backloaded and that the Plan’s actuarial factors used to reduce benefits for commencement before normal retirement date are unreasonable.

    Defendants sought to exclude the testimony of Plaintiffs’ expert Michael L. Libman as unreliable under Federal Rule of Evidence 702. Plaintiffs offered Libman as an expert on benefits under ERISA’s accrual rules and “actuarial equivalent” reductions.

    Pensions Expert Witness

    Michael Libman has been a pension actuary for over forty years. In that time, he has testified as an expert on pension issues in many cases.

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

    Discussion by the Court

    Libman’s expert reports supported Claims I and VI and his testimony is based upon a close read of statutory rules, Treasury Regulations, applicable legal precedent and authority, the Plan document, and relevant documentation provided by Defendants.

    Based on his read of the Plan provisions, Libman’s report set forth actuarial calculations to assess whether the Plan complies with ERISA’s anti-backloading and actuarial equivalence provisions.

    The Court held that while some of Libman’s interpretations of the Plan are perhaps open to question, there is no issue with the reliability of his testimony in general.

    Held

    The Court denied the Defendants’ motion to exclude the testimony of Michael Libman.

    Key Takeaway:

    After reviewing the parties’ filings and Libman’s testimony, the Court finds that Plaintiffs have shown, by a preponderance of the evidence, that Libman’s testimony is reliable. In so finding, the Court notes that the Daubert inquiry does not require district courts to assess whether an expert’s testimony is correct; courts need only determine whether the testimony is reliable.

    Case Details:

    Case Caption: Pedersen Et Al V. Kinder Morgan, Inc. Et Al
    Docket Number: 4:21cv3590
    Court: United States District Court for the Southern District of Texas, Houston Division
    Order Date: July 24, 2024
  • Testimony of Finance Expert Witness Limited Because It Is Based on the Assumption That Economic Damages Are Inclusive of Lost Wages

    Testimony of Finance Expert Witness Limited Because It Is Based on the Assumption That Economic Damages Are Inclusive of Lost Wages

    Plaintiff, Paul Sullivan was employed as a GSI Analyst II in the City’s Public Works Department. His employment was terminated as part of a reduction in force (“RIF”).

    During a restructuring of the Public Works Department, which led to the RIF, the City eliminated both of its GIS Analyst II positions, one of which was Sullivan’s. It also created a GIS Analyst III position, which was filled by another employee on August 12, 2019, several months before the RIF. On October 2, 2019, Sullivan asked his direct supervisor to consider him for the GIS Analyst III position. He was informed that there was no open GIS Analyst III position at that time. Sullivan sued the City, alleging that he was terminated in retaliation for engaging in alleged protected activity in violation of the Family Medical Leave Act and the Fair Claims Act.

    Sullivan designated Andrew Dakers as an expert witness to testify regarding his economic damages and lost earnings.

    The City filed a motion to exclude portions of Dakers’ opinions because they were based on the incorrect assumptions that Sullivan asserted a failure-to-promote claim, that Sullivan would have been promoted to the GIS Analyst III position, and that Sullivan would have received the highest listed salary for the GIS Analyst III position.

    Finance Expert Witness

    Andrew Dakers is a financial professional with more than twenty years of experience in financial analysis, budgeting, forecasting, project and company assessment, and leading cross-functional teams.

    Dakers has a Bachelor of Science in Economics from Carnegie Mellon University and a Master of Business Administration from Yale. Although not currently a practicing or licensed accountant, Dakers successfully passed the Certified Public Accountant examination. Having spent his career in the world of finance, Dakers’ has now begun a new practice providing expert testimony related to employment damages.

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

    Discussion by the Court

    Dakers was asked to calculate the financial impact of Sullivan’s alleged wrongful termination under three scenarios. First, Dakers was to assume that Sullivan was promoted to the GIS Analyst III position and was paid at the maximum salary of the published salary range for the position, with annual raises based on the anticipated inflation rate. Second, he was to make the same assumption, but without annual raises. And, third, he was to assume that Sullivan would receive the same salary and fringe benefits that he would have received without termination.

    Dakers’ calculations based on the wages for a GIS Analyst III are not based on sufficient facts or data

    First, the City argued that Dakers’ calculations were not based on sufficient facts or data because Sullivan did not plead a claim for failure to promote. In his deposition, Dakers testified that he assumed that Sullivan asserted a failure-to-promote claim. He further testified that that would make a difference in his calculations because he could not base his calculations on a similarly-situated position if Sullivan did not assert failure to promote.

    The Court rejected Dakers’ calculations based on the wages for a GIS
    Analyst III because Dakers testified that he would not have used the wages for a GIS Analyst III as part of his damages calculations if he had known Sullivan did not allege a failure-to-promote claim.

    Dakers’ report provided no basis for asserting that Sullivan was likely to receive a promotion for a position that was not open at the time of his termination

    Second, the City argued that Dakers’ calculations were not based on sufficient facts or data because, at the time that Sullivan sought the GIS Analyst III position, there were no openings. Dakers testified that the damages calculation based on the GIS Analyst III position would only be applicable if this was a position that Plaintiff “was most likely to move into.” But the evidentiary record established that, at the time of Sullivan’s termination, there was no open GIS Analyst III position. And Dakers admitted that, without the likelihood of this promotion at the time, there was no basis for the assumption that Plaintiff’s damages would include lost wages for the position.

    Dakers’ use of the maximum salary for the GSI Analyst III position is based on evidence in the record

    Third, the City argued that Dakers’ calculations were not based on sufficient facts or data because Dakers had no basis to choose the highest salary in the range for the GIS Analyst III position. When he was terminated, Sullivan’s salary was $57,700. The listed salary range for the GIS Analyst III position was between $50,201 and $72,720. Dakers testified that he chose the highest amount in that range for his calculations because Sullivan was later rehired in a different department at a salary exceeding the maximum for the GSI Analyst III position.

    The Court held that Dakers’ use of the maximum salary for the GSI Analyst III position was based on evidence in the record and objections to those calculations go to the weight, not the admissibility, of his damages calculations.

    Held

    The Court granted in part and denied in part Defendant City of Dallas’ motion to exclude portions of Andrew Dakers’ expert report.

    Key Takeaway:

    • Since Sullivan did not plead a claim for failure to promote, the Court rejected Dakers’ calculations based on the wages for a GIS Analyst III because Dakers testified that he would not have used the wages for a GIS Analyst III as part of his damages calculations had he known that Sullivan did not allege a failure-to-promote claim.
    • Dakers testified that the damages calculation based on the GIS Analyst III position would only be applicable if this was a position that Plaintiff “was most likely to move into” but at the time of Sullivan’s termination, there was no open GIS Analyst III position.

    Case Details:

    Case Caption: Sullivan V. City Of Dallas, Texas
    Docket Number: 3:21cv915
    Court: United States District Court, Texas Northern
    Order Date: July 15, 2024
  • Safety Engineering Expert Witness’ Opinions About the Fall Hazard Admitted

    Safety Engineering Expert Witness’ Opinions About the Fall Hazard Admitted

    Plaintiff Guadalupe Garcia Al-Dahwa (“Al-Dahwa”) alleged that she suffered personal injuries as the result of a trip-and-fall accident in the parking lot of a movie theater owned by American Multi-Cinema, Inc. (“AMC”). Al-Dahwa averred that AMC had failed to warn her of the dangerous condition.

    Al-Dahwa, who said she suffered from a physical disability, contended she tripped and fell in a ‘designated walkway because the concrete in the walking area was cracked, broken, and not level.

    Plaintiff designated Jason English as a testifying expert witness. Jason English opined that the principal causative factor related to [Al-Dahwa’s] fall was the presence of an abrupt vertical rise and broken concrete disrepair in the accessible route providing access to the disabled parking area.

    AMC insisted that English’s proffered opinions will not help the jury understand the evidence or determine a fact issue. Second, AMC argued that the probative value of English’s opinions are substantially outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury. 

    Safety Engineering Expert Witness

    Jason English is a licensed Professional Engineer, holding a B.S. in Industrial Engineering with a specialty in Systems Safety Engineering and an M.S. in Safety Engineering from Texas A&M University. English has also completed post-graduate coursework in the Department of Architecture at Texas A&M, focusing on the evaluation and design of means of egress components. He is a member of the American Society of Safety Professionals, Human Factors and Ergonomics Society, National Safety Council, and International Code Council. Since 1999, English has worked as a professional engineering consultant, primarily consulting in the field of safety engineering, including workplace safety, premises safety, product safety, safety management, and human factors/ergonomics. He also serves on several safety standard development committees for the American Society of Testing and Materials International.

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

    Discussion by the Court

    Reliability and Relevance Of English’s Opinions

    In AMC’s view, this is a relatively simple and straightforward case: Al-Dahwa “contended that she tripped and fell over a clearly visible area of concrete that was cracked and unlevel.” 

    In response, Al-Dahwa argued that English’s testimony will assist the jury because his knowledge and experience on the issues relevant to the case are beyond that of the average juror. 

    The Court found the subjects that English intended to address at trial were directly relevant to the elements of Al-Dahwa’s premises liability claim. For example, English planned on testifying that pedestrians, like Al-Dahwa, frequently fail to see hazards in front of them as they walk. This opinion, which English based on published human factors literature, was relevant to both the second element (whether the uneven surface on the walkway posed an unreasonable risk of harm) and the fourth element (proximate causation).

    English also intended to testify that the walkway where Al-Dahwa tripped and fell did not comply with the ADA, the TAS, and other applicable safety codes. This testimony was relevant to the third element of a premises liability claim—whether AMC failed to take reasonable case to reduce or eliminate the risk.

    Similarly, English’s proposed testimony that AMC should have “establish[ed] and implement[ed] a proper safety program to identify, evaluate, and correct hazards with the reasonable potential to cause serious injury” also addressed the third element.

    English’s Testimony Was Not Unfairly Prejudicial

    AMC argued that English’s testimony should be excluded under Rule 403 because it “would unfairly prejudice [AMC], confuse the issues, mislead the jury, and improperly bolster [Al-Dahwa’s] liability position.” The Court held that AMC was simply trying to recast its arguments concerning the reliability and relevance of English’s opinion through the lens of Rule 403. The Court already flatly rejected those arguments.

    Held

    The Court granted the Defendant’s motion to exclude the testimony of Jason English.

    Key Takeaways:

    • Once the proponent of an expert meets the threshold requirements of expertise, reliability, relevance, and helpfulness, the Court should generally admit the evidence.
    • English’s knowledge and experience related to the safety and accessibility codes applicable to where the incident occurred, safety engineering, when and how falls occur on premises are beyond that of the average juror. 

    Case Details:

    Case Caption: Garcia Al-Dahwa V. American Multi-Cinema, Inc Et Al
    Docket Number: 4:23cv2010
    Court: United States District Court, Texas Southern
    Order Date: July 11, 2024