On August 20, 2019, Plaintiff Martin J. Benzing visited a construction site on the Bruckner Expressway. During the visit, he climbed down a ladder and suffered a head injury. This case concerns the cause of Benzing’s injury and which entities bear responsibility for any damages Benzing suffered. Benzing and his wife, Annastacia Benzing, alleged that Defendants and Third-Party Plaintiffs Tully-Posillico JV, Tully Construction Co., Inc., and Posillico Civil, Inc. (together the “JV Defendants”) violated three provisions of the New York Labor Law (“NYLL”) as the contractors, the owners, or their agents, of the construction site where the incident took place.
Jason Randle is a civil engineer who specializes in technical investigations and analysis for commercial claims and litigation involving construction site safety practice, including how industry standards apply to a particular incident.
He also has professional experience in construction site safety, construction industry regulations, and ladder accidents.
William J. Meyer holds a Bachelor of Science degree in Mechanical Engineering from Rutgers University, the College of Engineering, New Brunswick, NJ and a Master of Science in Engineering Science from New Jersey Institute of Technology, Newark, New Jersey. He is a licensed Professional Engineer in New Jersey and New York.
Meyer is a member of the American Society of Mechanical Engineers (ASME), the Society of Automotive Engineers (SAE), New Jersey Association of Accident Reconstructionist (NJAAR) and National Association of Fire Investigators (NAFI).
Robert S. Cargill II is a bioengineer who specializes in biomechanical engineering. His formal education includes a Bachelor of Science in biomedical engineering from Rensselaer Polytechnic Institute (1989) with minor in biology, and a Master of Science (1991) and Ph.D. (1994) in bioengineering from the University of Pennsylvania.
The JV Defendants sought to preclude Randle’s testimony on three grounds: (1) he is unqualified, (2) his conclusions relied upon evidence that is inadmissible or lacks probative value, and (3) he impermissibly offered legal conclusions.
First, while Randle is qualified to offer opinions on safety issues concerning the ladder and construction site, his opinions on the cause of Benzing’s fall exceed the bounds of his expertise. Courts have found biomechanical engineers “qualified to offer testimony regarding the forces generated by certain accidents and the likely effects of such forces on the human body.”
However, Randle does not purport to have training or expertise in the field of biomechanics and Plaintiffs described his testimony concerning causation as “only incidental to his report.”
Second, portions of Randle’s testimony impermissibly offered legal conclusions. For example, Randle provided opinions on Tully’s duties. These opinions offer legal conclusions because “the existence and scope of an alleged tortfeasor’s duty is, in the first instance, a legal question for determination by the court.”
The JV Defendants’ other contentions concerning Randle’s testimony are either unavailing or go to the weight rather than admissibility of his testimony. First, Randle’s reliance on evidence that the JV Defendants allege is inadmissible did not preclude his opinion. An expert may rely on inadmissible facts or data in reaching his opinion but may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
His opinions, as set forth in the report, address central issues in this case, based on the evidence in the record and his expertise as a civil engineer. The proposed testimony is sufficiently reliable and relevant.
B. William J. Meyer
Meyer provided testimony concerning the safety of the ladder and the causes of Benzing’s fall. Plaintiffs sought to preclude his testimony on largely the same grounds as the JV Defendants sought to preclude Randle’s testimony. First, like Randle, Meyer did not purport to be a biomechanical engineer or medical expert and is thus not qualified to offer testimony concerning the causes of Benzing’s fall or injury.
Accordingly, the sections of his report and proposed testimony addressing the cause of Benzing’s fall and injury are impermissible. Second, Meyer also offered impermissible legal conclusions that must be excluded. Plaintiffs’ remaining contentions concerning Meyer’s testimony go to the weight not admissibility of his testimony and can be addressed “through vigorous cross-examination and presentation of contrary evidence.”
C. Robert S. Cargill II
The JV Defendants proffered Cargill’s testimony as a biomechanical perspective on the causes of Benzing’s accident. Plaintiffs sought to preclude his opinions on the grounds that they are “not grounded on sufficient facts or data, are speculative, and/or are not the product of reliable principles and methods.”
The Court disagreed. As laid out in the report, Cargill reviewed evidence in the record and set forth his perspective on the incident based on his expertise as a biomechanical engineer. These opinions are within the scope of his expertise and are permissible.
Held
The Court granted in part and denied in part Plaintiffs’ motion to preclude the testimony of William J. Meyer.
The Court denied Plaintiffs’ motion to preclude the testimony of Robert S. Cargill II.
The Court granted in part and denied in part Defendants’ motion to preclude the testimony of Jason Randle.
Key Takeaway
In the context of litigation, biomechanical engineers typically are found to be qualified to render an opinion as to the forces generated in a particular accident and the general types of injuries those forces may generate.
Terri Beth Mays died on November 4, 2021, while she was an inmate at the Whitley County Detention Center. Her Estate (“Mays’ Estate”) alleged that Jail personnel, nurses, and medical providers were responsible for ensuring her health and safety while she was in their custody, yet they failed to address her obviously serious medical needs and acted with deliberate indifference to those needs.
Mays’ Estate named as Defendants Whitley County; Jailer Brian Lawson; Sergeants Austin Caldwell and Joseph Cureton; Deputy Jailers Sula Bowman, Kaytee George, Zach Hughes, and Nick Huddleston; Southern Health Partners, Inc.
Defendants filed three motions to exclude the testimony of Plaintiff’s expert witnesses: Anthony Callisto as well as Doctors Terren Trott, MD and Lori Roscoe.
Corrections Expert Witness
Anthony Callisto, Jr. has over 40 years of experience in the correctional system. His experience is vast, ranging from correctional officer, Chief Deputy, Chief Law Enforcement Officer, American Jail Association President, and criminal justice professor.
Lori E. Roscoe is an Advanced Practice Registered Nurse, certified through the National Commission on Correctional Health Care as a Certified Correctional Health Professional Registered Nurse (CCHP-RN).
She has a Doctor of Nursing Practice degree from the University of Alabama, and a PhD in Healthcare Administration. Roscoe has a Master of Science degree in Nursing and a Master’s degree in Public Administration with a Healthcare Concentration. Roscoe began working in Corrections in 1995 as the Health Service Administrator for a female prison in the Northeastern United States. She has worked as an Associate Program Director and as a Regional Administrator on the statewide level. She has correctional business expertise in healthcare operations, policy and procedure development, project management, Continuous Quality Improvement, human resources, staff orientation and development, finance and contract auditing. Roscoe has worked with staff to achieve successful facility accreditation from both the National Commission on Correctional Health Care and the American Correctional Association.
A. Motion to Exclude the Testimony of Corrections Expert Anthony Castillo
The Defendants argued that Castillo is unqualified and that his methodologies are unreliable. Further, the Defendants argued that his opinions are too general to be prescribed to any one Defendant.
However, Castillo’s past background provided extensive technical and specialized knowledge that will help the jury understand the evidence on this case.
The Defendants took issue with the fact that Castillo has never worked in Kentucky nor had he been in a small rural jail prior to his visit to the Whitley County Jail. The issue with the Defendants’ contention here is that it calls into question Castillo’s credibility, not admissibility.
The Defendants accused Castillo of basing his opinions on “broad correctional standards rather than specific Kentucky statutes.” His report explicitly disproved this. Exhibit A of his report lists the “Sources Reflecting and Informing the Standard of Care.” Named among these standards are the Whitley County Detention Center Policies and Procedures, as well as multiple statutes and regulations. Likewise, Castillo’s report indicated that he reviewed all relevant pleadings, reports, depositions, and policies.
Castillo’s ninety-nine page report is a comprehensive analysis of the Defendants’ roles and how their actions relate to the applicable standard of care. To the extent that the Defendants contested his opinion for being too generalized, they are disputing his conclusions, not his methodology.
B. Motion to Exclude the Testimony of Dr. Terren Trott, MD and Dr. Lori Roscoe
The Defendants’ motion as to Terren Trott and Lori Roscoe was simple. They argued that “neither witness is qualified to render opinions regarding Whitley County jail policies or practices.” Because of this, they objected to any testimony by either of these witnesses that non-medical personnel actions were negligent or reckless. The Plaintiff did not contest this motion.
The Plaintiff agreed that neither of these experts will give opinions on Kentucky Jail standards, Whitley County Jail policies or procedures or that any non-medical Defendants’ actions violated the law. Finding no disagreement here, the Court concluded that Doctors Trott and Roscoe are barred from giving opinions regarding the non-medical Defendants’ culpability.
Held
The Court denied Defendants’ motions to exclude the testimony of Anthony Castillo.
The Court granted Defendants’ motion to exclude the testimony of Doctors Terren Trott and Lori Roscoe.
Key Takeaway
Castillo’s lack of experience in an identical facility goes to the weight of his testimony, which is a matter properly left to the jury. Rule 702 does not require an expert to have identical background experience.
Plaintiff was a guest at Defendant’s beachfront hotel in Miramar Beach over the Fourth of July holiday weekend in 2024. Defendant owned the dry sand portion of the beach in front of the hotel, and it rented chairs and other concessions to hotel guests using the beach.
On the morning of July 6, Plaintiff entered the water of what is now known as the Gulf of America from the hotel’s private beach despite seeing a yellow flag warning beachgoers to exercise caution in the water due to the presence of “moderate surf and/or currents.” Plaintiff went out to hip-deep water, and after 10 to 15 minutes, she exited the water without any issue.
After lunch, Plaintiff re-entered the water despite noticing that there were more waves than there were in the morning. Plaintiff went further out into the water than she did in the morning, but when the weather started to worsen and the water became more turbulent and “murky,” Plaintiff decided to head back to the beach.
While heading back, Plaintiff allegedly got stuck in an “underwater trench” that was at least waist-deep. While Plaintiff was stuck in the trench, she was allegedly hit by a wave that knocked her forward and caused her to strike her head on an adjacent nearshore sandbar with such force that she suffered a severe cervical spine injury that rendered her quadriplegic.
Defendant filed Daubert motions to limit or exclude the testimony of two of Plaintiff’s experts, John Fletemeyer, Ed.D., and Gary Deel, Ph.D.
Aquatic Safety Expert Witness
John Robert Fletemeyer, Ed.D. has been continuously and professionally involved in aquatic safety for more than 50 years and have acquired several professional certifications including instructor certifications from the American Red Cross (First Responder, BLS, CPR and AED Instructor), YMCA of the USA Lifeguard Instructor, World Lifesaving Training Officer, licensed EMT, NAUI Instructor, PADI instructor, USLA Certification Accreditation officer, and Swift Water Rescue Specialist.
He has been awarded several postgraduate degrees including graduate degrees from the University of Wisconsin (M.A.), University of Cape Town (M.S. Honors) and Florida International University (Ed.D). He has held teaching and research positions at Broward College, Nova University and Florida International University.
Fletemeyer has been retained in over 500 criminal and civil cases involving drowning and serious aquatic incidents.
Gary Lee Deel spent ten years in professional work within the hospitality industry, including hotels, motels, resorts, restaurants, amusement parks, attractions, casinos, golf courses, dayclubs, nightclubs, meetings and events, and other aspects of the industry which are commonly integral to hotel and resort operations.
He has also spent more than 16 years teaching hospitality management for various hospitality schools including the UCF Rosen College of Hospitality Management, the UF Tourism and Hospitality School, and the UNLV Harrah Hotel College.
Fletemeyer’s expert report broadly opined that Defendant was “grossly negligent for not providing guests with any comprehensive and effective beach safety program that prevents foreseeable injuries and drowning/near drownings from occurring.”
1. Qualification
Defendant argued that Fletemeyer is unqualified to opine on “offshore hydrodynamics, sandbar-formation science, and the design, staffing, and operation of professional open-water rescue systems.” The Court agreed in part.
Fletemeyer did not appear to be qualified in the areas of “hydrodynamics” or “sandbar-formation science,” and Plaintiff represents he will not offer opinions on those issues. Thus, consistent with that representation, Fletemeyer may not opine on how certain underwater terrain and features—such as underwater trenches and sandbars—are formed. Nor may he opine on the science of how water and wave forces interact with the human body.
That, however, did not preclude Fletemeyer from testifying about the risks posed by aquatic conditions like trenches and nearshore sandbars. Indeed, Fletemeyer’s extensive experience—which includes work as a beach patrol supervisor and beach patrol chief for about 28 years with over 50,000 hours supervising beaches and observing hazardous water conditions, along with work as a consultant for over 30 government and private entities (including other Hilton hotels) investigating aquatic injuries and evaluating aquatic safety programs—more than adequately qualifies him to offer opinions about aquatic safety issues and trench/sandbar risks on Florida beaches.
Fletemeyer is also qualified to opine on “professional open-water rescue systems” because, as Defendant acknowledged, Fletemeyer’s “background is strongest in lifeguard operations, beach-safety education, and drowning-prevention advocacy.” Moreover, Fletemeyer has worked with “several hotels” to conduct aquatic safety audits and train staff. Thus, contrary to Defendant’s argument, Fletemeyer is adequately qualified to opine on matters pertaining to the design and implementation of open-water rescue systems.
2. Reliability
Defendant argued that Fletemeyer’s opinions are unreliable because they are primarily based only on his own experience and research. For the most part, the Court disagreed.
Fletemeyer is entitled to rely on his experience, and that experience includes designing aquatic safety programs “consistent with the standards at other resorts,” which include “multiple, coordinated layers of hazard identification, guest education, staff training, and emergency planning specifically directed at the nearshore trench/sandbar hazard and its associated injury risks.”
The Court did not overlook Defendant’s argument that Fletemeyer “relied almost entirely on his own experience … and own 1999 book” rather than invoking a “recognized risk-assessment framework, coastal-engineering protocol, or specific industry standard for beachfront hotels in Florida.”
However, putting aside the fact that an expert can rely on his own experience and that his book is published in a peer-reviewed press, Fletemeyer did refer to industry standards when he discussed how he evaluated Defendant’s aquatic safety programs against the “commonly adopted practices” at comparable resorts.
The Court also did not overlook Defendant’s argument that Fletemeyer failed to conduct “tests, measurements, or quantitative analysis” as to the Gulf’s forces that day or the sandbar, but such analysis is not required for Fletemeyer’s experience-based testimony.
However, the Court agreed with Defendant that Fletemeyer provided no reliable basis for his opinion that the proposed safety measures would have prevented Plaintiff from being injured by the sandbar or made her injury less likely. Nor did he explain how his experience led to his conclusion.
3. Helpfulness
Defendant argued that some of Fletemeyer’s opinions are unhelpful because they are impermissible legal conclusions and invade the province of the jury. The Court agreed in part.
Here, Defendant argued that some of Fletemeyer’s opinions—such as his opinions that Defendant was “negligent” or “grossly negligent” and that Plaintiff’s injury occurred in an area that Defendant had a “duty” for guest safety—are impermissible legal conclusions.
The Court agreed. Thus, Fletemeyer will not be permitted to couch his opinions in that manner.
Defendant also argued that some of Fletemeyer’s opinions improperly commented on witness credibility and usurped the role of the jury. Plaintiff conceded that Fletemeyer’s “characterization” of certain testimony as “questionable” and “his inference that [Defendant] ‘failed to take notice’” of the hazards are “immaterial remarks.”
Gary Deel
Deel is a hospitality operations, safety, and risk management professional and academic. His expert report includes three main opinions, which were more succinctly summarized in his affidavit as follows:
[Defendant] had a responsibility to ensure a reasonably safe environment for guests entering the Gulf and failed to meet this responsibility.
[Defendant] knew or should have known of the recurring danger of concealed trenches and sandbars, but it failed to warn guests adequately.
[Defendant] failed to implement reasonable safety measures and failed to investigate or remediate known hazards, demonstrating systemic safety-management failures.
1. Qualification
Defendant challenged portions of Deel’s opinions by arguing that he is unqualified to opine on the “foreseeability of underwater trenches and sandbars,” the design of professional beach rescue programs that would have prevented the incident, and the “hydrodynamic effects of the underwater topography” because he lacks formal education or training in coastal science and open-water lifeguard operations. The Court agreed.
Deel spent ten years in the hospitality industry working in areas such as hotel operations, safety, security, and risk management, and he has spent sixteen years teaching those same subjects at various universities. That experience provided Deel sufficient qualifications to render opinions on hotel risk management practices, but Plaintiff has not shown that his experience qualifies him to render reliable opinions on the foreseeability or danger of underwater trenches/sandbars within the Gulf’s waters, rip-current formation, or open-water lifeguard operations.
On the latter point, although Deel supposedly relied on “aquatic-safety literature and beach-management practice” to opine that Defendant knew or should have known about the “specific and recurring danger of concealed underwater trenches and sandbars in the Gulf waters,” the “industry standards” he cited for that proposition did not mention that type of hazard.
That said, Deel is more than adequately qualified to opine about industry practices relating to risk identification and management. Thus, while he cannot testify as to the dangerousness of underwater trench and sandbar configurations, he may opine, for example, about whether Defendant complied with (or deviated from) industry standards when it did not “inspect the Gulf waters,” conduct a “risk assessment or safety inspection of its beach operations,” or have “established procedures governing guest safety in the water.”
2. Reliability
Defendant argued that Deel’s opinions are unreliable because they lacked a sound methodology and failed to identify industry standards.
Deel cited several standards for his methodology and explained that those standards, combined with his experience in the hospitality industry, require a systematic review of available data and a determination as to whether certain safety practices sufficiently mitigate known hazards.
Defendant did not critique those “process-oriented guidelines” about structuring investigations and conclusions; it merely argued that Deel’s opinions did not establish substantive hotel safety standards.
Deel is entitled to rely on his own experience so long as his methodology is sound, and it is here because he identified a methodology, cites specific “standards of care” from “authoritative sources” (that he knows from his experience in the industry), and evaluates whether Defendant’s risk management program was consistent with those standards.
The Court did not overlook Defendant’s argument that Deel did not identify a specific industry standard requiring a Florida beachfront hotel to survey underwater sandbars, monitor rip currents, and give hazard-specific warnings. However, the industry standards he cited required hotel operators to establish systematic processes of risk identification and management, including identifying water hazard risks, preparing emergency procedures, and warning guests of hazards. And, according to Deel, those standards apply to both pools and beaches. Thus, Deel reliably applied his methodology to reach his conclusions.
That said, the Court agreed with Defendant that Deel’s opinion that Plaintiff’s injury resulted from Defendant’s “systemic breakdown in safety management” and that had Defendant conformed with industry standards, the incident “more than likely could have been prevented” is ipse dixit because, like Fletemeyer’s causation opinion, there is a substantial analytical gap between the facts and conclusion offered.
3. Helpfulness
Defendant argued that some of Deel’s opinions are impermissible legal conclusions and unhelpful. The Court agreed in part.
Like Fletemeyer, Deel may not couch his opinions as impermissible legal conclusions or invade the province of the jury. Thus, Deel may not opine that Defendant, by commercially controlling the beach, had a “duty” to ensure a reasonably safe environment or how far that duty extended; that Defendant held “a legal right to use and control” the beach; or that Defendant “knew or should have known” about the underwater trench/sandbar hazard being foreseeable. However, as discussed above, he may opine—without phrasing his opinions as legal conclusions—on whether Defendant deviated or complied with industry risk management standards.
Defendant also argued that Deel’s opinions will be unhelpful to the jury because Florida hotels owe no duty to warn of naturally occurring conditions like rip currents and sandbars. But as was the case with Fletemeyer, to the extent Defendant is wrong about the law, Deel’s opinions will be helpful to the jury in determining whether Defendant breached the duty it owed to hotel guests like Plaintiff.
Held
The Court granted in part and denied in part Defendant’s Daubert motions to limit or exclude the testimony of Dr. John Fletemeyer and Dr. Gary Deel.
Key Takeaway
Fletemeyer merely asserted a conclusion and asked the Court to take his word for it based on his experience. That, however, is not enough because it is well established that “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” If admissibility could be established merely by the ipse dixit of an admittedly qualified expert, the reliability prong would be, for all practical purposes, subsumed by the qualification prong.
The Federal Trade Commission (“FTC”) alleged that Defendant Doxo’s website and ads were confusing to some consumers and that Doxo committed certain technical disclosure violations.
David True is a consumer payments expert with over 35 years of experience working with card issuers, networks, merchants, processors, and financial technology firms. Over the course of his career, he has gained experience in payments strategy, marketing, new product development, operations, and finance.
Ann Schlosser, Ph.D., is a marketing professor whose research focuses on consumer behavior, Internet and digital marketing, and communication in technology-mediated environments.
Schlosser received her Ph.D. and M.A. in social psychology with a double minor in advertising and quantitative psychology.
Schlosser has over thirty publications in academic journals, conference proceedings, and book chapters.
Brian Sowers is a market research consultant. Over the course of his career, he has personally designed and conducted thousands of market research surveys across a broad range of modalities and a broad range of populations.
David True, a consumer payments expert, summarized his opinions as follows: (1) Defendant Doxo, Inc. (“Doxo”) allows consumers to choose from a wide variety of funding mechanisms for bill pay; (2) Doxo remits payments to billers either through direct deposit, the Mastercard Remote Payment and Presentment Service (“RPPS”), or check; (3) Doxo’s remittance methods are commonly used, including by bank bill pay services; (4) convenience fees are ubiquitous in bill pay and are routinely charged by billers and/or their preferred payment channels; (5) Doxo’s practices of disputing non-fraudulent chargebacks is normal and an expected part of being a merchant that accepts card payments; and (6) although a small number of billers have posted warnings about Doxo, the substance of those warnings is often questionable, potentially self-interested, or the product of misunderstanding.
(i) True’s Qualifications
The FTC did not appear to challenge True’s qualifications, noting only that, although True “has industry experience advising businesses about payments,” he has limited experience and “identifies no experience or expertise related to consumers’ perceptions of advertisements or businesses’ compliance with consumer protection law.”
The Court found that True is qualified, based on his knowledge and experience, to give relevant and reliable expert testimony. The FTC cited no cases in support of its proposal to define True’s prior experience in the payments industry so narrowly. True possesses “at least the minimal foundation of knowledge, skill, and experience required in order to give ‘expert’ testimony” on the consumer payments industry.
Whether True has the “knowledge and experience” to offer relevant reliable expert testimony is not, however, the end of the inquiry; the Court must further evaluate whether he is able to do so in this case.
(ii) The relevance of True’s proffered testimony
The FTC argued that True’s report consisted of irrelevant matters that have no bearing on whether Defendants violated the FTC Act, Gramm-Leach-Bliley Act, and the Restore Online Shoppers’ Confidence Act.
True’s testimony in his report concerning industry standards about the U.S. consumer bill pay market (Section VII) and bill pay methods (Section VIII) sets the foundation for his testimony. This testimony is relevant because it supported Defendants’ theory that Doxo’s business practices are normal and expected. True then applied these principles to his interpretation of Doxo’s operations (Section IX), discussing payment funding and remittance, payment validation processes, and biller directory quality assurance practices.
True’s recitation of Doxo’s business model and business case for a centralized bill pay platform are necessary to lay the factual foundation for this analysis and is therefore relevant. True’s explanation of Mastercard’s RPPS (Section X) is relevant to the FTC’s theories that Doxo collects money from consumers without paying the biller or pays the biller late, thereby causing consumers to incur late fees or other negative outcomes. Finally, True opined on the fees and costs associated with bill payments (Section XI), Doxo’s chargeback procedures and rates (Section XII), and biller warnings about Doxo (Section XIII). The FTC relied on Doxo’s practices in this area and external evidence to support its claims, thereby making these portions of True’s testimony relevant.
(iii) The reliability of True’s testimony
The FTC argued that True’s conclusions about Doxo’s practices (Sections IX—XII of True’s report) are improper as expert testimony because True identified no methodology or specialized knowledge or experience that explained how he reached them.
True opined that “Doxo has robust processes for minimizing chargebacks,” Doxo’s chargeback rate is “well below industry thresholds for fines or monitoring programs,” and Doxo’s “win rate of approximately 80% on bill payments and about 50% on its subscription (doxoPLUS) products” compares to “an industry average success rate of roughly 45%.” In discussing Doxo’s “multi-layered payment validation framework,” True stated that the validation criteria “are based on a combination of industry standards (e.g., financial institution formatting norms) and direct input from billers.”
The Court deems an expert’s testimony reliable where he identifies applicable industry standards in his report and contrasts them with an atypical case, like this one.
The FTC also argued that True’s conclusions about biller warnings concerning Doxo (Section XIII of True’s report) are not reliable because he offered a definitive conclusion that a “small minority” and “tiny portion” of billers have issued such warnings, despite not asking Doxo whether a spreadsheet upon which he based this conclusion was comprehensive. The FTC did not, however, point the Court to a more comprehensive list of billers who have issued warnings that would support a conclusion that True’s testimony on biller warnings is unreliable because he “failed to consider the relevant underlying facts necessary to support his opinions and conclusions.”
Dr. Ann Schlosser
In her report, Schlosser reached the following conclusions: (1) reasonable consumers would correctly interpret search engine results for Doxo and are not likely to be misled; (2) reasonable consumers would correctly interpret the website and accompanying disclosures to understand that Doxo is not the biller and does not have a formal affiliation with their biller; (3) reasonable consumers would understand that Doxo charges a fee for certain transactions; (4) the option to pay for free by using a linked bank account is stated clearly and repeatedly throughout the payment process; (5) reasonable consumers would understand that doxoPLUS is a subscription service; and (6) isolated consumer complaints do not alter the foregoing conclusions.
(i) The Relevance of Schlosser’s Proffered Testimony
The FTC also did not appear to challenge the relevance of Schlosser’s testimony, but instead questioned its helpfulness.
The topics about which Schlosser opined included the following: (1) how consumers navigate a purchase decision-making process, (2) application of the decision-making process to Doxo customers, and (3) whether a reasonable consumer would be confused or misled as to fees, affiliation, or the nature of Doxo’s bill pay or subscription services. All of these topics are clearly relevant to the issues in this case.
(ii) The Reliability of Schlosser’s testimony
Schlosser’s testimony that consumers are not deceived by Doxo’s advertisements and website is unreliable
The FTC contended that Schlosser’s testimony that consumers are not deceived by Doxo’s advertisements and website is unreliable.
Schlosser analyzes a consumer’s experience using Doxo’s service by walking through the process from encountering Doxo’s advertisements on Google through each step of Doxo’s bill payflow. Rather than simply regurgitating what she can read on each webpage, Schlosser pauses to explain why certain aspects of these webpages are not misleading or confusing, weaving in principles within her expertise and data not present on the face of any webpage. Although the FTC may disagree with Schlosser’s opinions or critique how she reached them, such arguments bear not on the admissibility of Schlosser’s testimony, but instead their weight, which can be appropriately addressed during cross-examination.
Schlosser’s methodology is unreliable because she failed to consider the actual facts at issue
The FTC also argued that Schlosser’s methodology is unreliable because “she failed to consider the actual facts at issue” and “due to her failure to account for the overwhelming evidence contrary to her opinion.” Almost invariably, Schlosser testified that she would need more information to determine whether any of the documents shown to her or information shared with her would be relevant to her opinions in this case.
Schlosser’s opinions are unhelpful
The FTC challenged three other broad categories of Schlosser’s opinions based on their alleged unreliability and unhelpfulness: (1) Doxo has “satisfied consumers and a loyal following,” (2) certain payment data indicates that consumers were not deceived; and (3) consumers do not care about the affiliation between Doxo and their billers.
The Court rejected all these challenges, because (1) Schlosser’s comment on Doxo consumer satisfaction is relevant to bridge the gap between her application of the consumer decision-making process and external data about Doxo’s consumers; (2) the FTC may cross-examine her about the strength of these opinions, which do not make them inadmissible on their face; and (3) Schlosser stated that “paying on time, without extra fees, is important to consumers,” but explained that “consumers are unlikely to know who is handling the payment or make decisions on whether to buy or not based on who is handling the payment.”
(iv) Ultimate Issue Testimony
The FTC argued that Schlosser’s opinion on deception is an impermissible legal conclusion. Schlosser concluded that “the evidence does not support the conclusion that Doxo’s practices are misleading, confusing, or deceiving a significant number of consumers acting reasonably.” She used the term “deception” or “deceived” a handful of times in the rest of her report.
The Court concluded that Schlosser has not offered an opinion on an ultimate issue of law.
Brian Sowers
(i)Relevance and reliability of Sowers’ opinions on Doxo’s internal surveys
The FTC argued that Sowers relies exclusively on guidance regarding the design of surveys conducted specifically for litigation and failed to explain why or how that literature applied to the Doxo internal surveys that Sowers analyzed.
Sowers testified that he reviewed about nineteen Doxo surveys and agreed that companies’ internal surveys are often not conducted according to the “Shari Diamond Chapter,” a reference guide on survey research, if they are never intended for use in litigation.
According to that reference guide, “the content and execution of a survey must be scrutinized whether or not the survey was designed to provide relevant data on the issue before the court.”
The FTC offered no authority to suggest, however, that an analysis of proper survey design and implementation varies based on the purpose for which the surveys are used. To the extent the FTC disagrees with Sowers’s methodology, the FTC is free to address such concerns during cross-examination.
The FTC also contended that Sowers’ conclusions are “pure ipse dixit.” Sowers identified from treatises and applied ten guidelines for reliable survey design throughout his analysis.
The Court concluded that Sowers’ testimony on Doxo’s internal surveys was relevant and reliable.
(ii) Relevance of the Awareness Survey
The FTC argued that Sowers’ Awareness Survey should be excluded under Rules 702 and 403 as unhelpful to the trier of fact for failing to advance any material issue in the case.
Sowers stated that the Awareness Survey results showed 13.3% of respondents indicated that they are aware they can pay a bill online through a third-party website not authorized by the biller.
The Awareness Survey did not survey Doxo consumers. With the relevant period of liability being February 2021 through October 2024, a survey conducted years later of general consumers’ preexisting beliefs on paying bills through a third-party is not relevant.
Defendants have made no showing, through Sowers or otherwise, about how results may differ (or not) over time and how the survey Sowers conducted could bear on perceived consumer confusion two to five years ago.
Held
The Court denied the motions to exclude expert witnesses David True and Ann Schlosser brought by the Federal Trade Commission.
The Court denied in part and granted in part the FTC’s motion to exclude expert witness Brian Sowers.
Key Takeaway
Trial judges are tasked with ensuring that an expert’s testimony rests on a reliable foundation and is relevant to the task at hand. Generally, expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry and reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline. Expert testimony is inadmissible if it concerns factual issues within the knowledge and experience of ordinary lay people because it would not assist the trier of fact in analyzing the evidence. Nevertheless, expert testimony need only provide appreciable help to the jury to be admissible.
This matter arises from an allision on December 7, 2022, while the tug M/V BURRWOOD WISE was maneuvering a crane barge, the ALEX G, at a docking facility owned by Atalco. During this maneuver, the ALEX G made contact with a dock. An employee of Defendant, Gnots Reserve, Inc., was operating the tug. Atalco brought this action seeking recovery for the resulting property damage.
Gnots retained Captain Ronald L. Campana to offer opinions on (1) the structural condition of the dock and the absence of a functional fendering system; (2) the custom and practice of fendering marine docks on the lower Mississippi River; and (3) the applicability of the U.S. Inland Navigation Rules to the movement of the ALEX G. Atalco filed a motion to strike Campana’s report and testimony.
Marine Surveyor Expert Witness
Captain Ronald L. Campana is a graduate of the United States Merchant Marine Academy, Kings Point, N.Y. He has sailed in various capacities as an officer and master aboard US flagged vessels. Campana came ashore in 1981 and was trained by an existing marine surveying firm, as a Marine Surveyor, that is no longer in business.
Campana has 42 years of experience surveying vessels and marine terminals in the New Orleans area. Prior to his surveying career, and after graduating from the United States Merchant Marine Academy, he spent ten years as an officer aboard vessels mooring at comparable facilities.
His experience qualifies him to give opinions in this case. The challenges to his opinions in this judge-tried case are better directed to the weight of the evidence, not to exclusion of it.
Held
The Court denied Atalco’s motion in limine to strike and exclude the testimony of Ronald Campana.
Key Takeaway
Challenges to the factual bases of an expert’s opinion ordinarily go to weight, not admissibility, and are properly addressed through cross-examination.
This case arises out of Plaintiff Jane Doe’s claims for child sexual abuse against a well-known, Rhode Island-based boarding school, Portsmouth Abbey School, the institution that hired and retained Plaintiff’s abuser, Michael Bowen Smith (“Smith”). Plaintiff attended Portsmouth Abbey from September 2010 to May 2014. In December 2020, Plaintiff filed a complaint against Portsmouth Abbey in the United States District Court for the District of Rhode Island, alleging that the school administrators failed to report and prevent the abuse despite receiving warnings.
The District of Rhode Island ruled that Plaintiff’s claims against the school were procedurally barred by the statute of limitations. In December 2020, Plaintiff also filed this action for professional negligence, breach of contract, and breach of fiduciary duty against Defendant Lewis Roca, based on legal services Lewis Roca provided to Plaintiff in connection with her petition for an order of protection against Smith.
Plaintiff alleges that Lewis Roca attorneys knew or should have known Plaintiff had potential claims against Portsmouth Abbey arising from the abuse but never advised Plaintiff of these claims or the relevant statute of limitations. Plaintiff also alleges that Lewis Roca never disclosed that the law firm often defended the Catholic Church in claims brought by abuse survivors or explained that this presented a potential conflict of interest.
Dr. Charol Smith Shakeshaft is a professor in the Department of Educational Leadership at Virginia Commonwealth University. She has a Ph.D. in educational administration and has served as a professor in that capacity for over 45 years. Shakeshaft began “studying sexual abuse of students in schools in the 1980s,” has received three grants by the U.S. Department of Education, and has authored a Congressionally mandated report on educator sexual misconduct in the United States, published in 2004.
Laurie Fortin is a licensed clinical social worker who has over 30 years of experience conducting, supervising, and providing training for forensic interviews in the context of child abuse.
I. Defendant’s Motion to Exclude Charol Shakeshaft
Shakeshaft is expected to testify that Portsmouth Abbey failed to provide clear guidelines or training on how to respond to reports of inappropriate conduct; that Portsmouth Abbey did not have appropriate policies or adequate training to prevent Plaintiff from being sexually abused; that the policies that were in place were not communicated, followed, or enforced; and that the response to reports of abuse was insufficient.
a. Shakeshaft’s Qualifications
Defendant objected to Shakeshaft’s qualifications as “lacking on-the-ground knowledge and experience implementing and enforcing policies and procedures in a boarding school setting within a relevant time period.” Defendant also argued that she “conducted little to no investigation into the Portsmouth Abbey environment more specifically, including the size of the student body, its leadership, and/or the layout of the campus and locations where Plaintiff and Smith were purportedly seen to interact.”
Shakeshaft is offering opinions on a “systemic failure” in Portsmouth Abbey’s policies, training, and response to reports of sexual abuse, not testifying as a legal expert. The reference to “state and federal entities requiring that school employees are responsible for keeping children safe” is not disputed and did not, as Defendant suggested, form a predicate for Shakeshaft’s opinions.
In addition to her academic credentials and extensive research experience, she has been qualified to provide expert testimony on similar subject matter in other cases in this and other districts.
b. Reliability and Relevance of Shakeshaft’s Opinions
Shakeshaft’s opinions on school policies, grooming, and “conflicts of interest” lacked reliable methodology
First, Defendant challenged Shakeshaft’s opinions on school policies, grooming, and “conflicts of interest” as lacking reliable methodology.
The Court considered Shakeshaft’s significant experience and research in the field of educator sexual misconduct and her review of an extensive compilation of relevant school documents.
To the extent that Defendant objected to the use of the term “grooming” in Shakeshaft’s report, Plaintiff is not offering Shakeshaft as an expert on grooming. Moreover, Shakeshaft clarified in her deposition that she was “not looking for grooming” and that references to “grooming” reflected her notes on the records she reviewed.
Shakeshaft lacked familiarity with the Rhode Island mandatory reporting law
Second, Defendant objected that Shakeshaft lacked familiarity with the Rhode Island mandatory reporting law and other requirements that would have applied to Portsmouth Abbey during the time period Plaintiff was a student. This appears to refer to a table Shakeshaft created of “items that should be, but were not, included in a specific policy prohibiting and preventing educator sexual misconduct.”
To the extent that Defendant objected that this list of policies was not mandated by Rhode Island or federal law, the Court did not find that Shakeshaft is testifying that the absence of these policies violated state or federal law between 2010 and 2014.
Shakeshaft’s criticism of the external investigation of Portsmouth Abbey was speculative
Defendant also challenged Shakeshaft’s criticism of the external investigation of Portsmouth Abbey as “speculative,” where Shakeshaft’s own report and deposition testimony stated that she “speculates” that Plaintiff was not included in the investigation report as that likely would have been harmful to the school’s standing and reputation. These and similar objections either go to the weight of the testimony, which Defendant is free to address on cross examination, or attack conclusions that Shakeshaft did not offer.
Shakeshaft is a “school person” and should not be allowed to testify to the standard of care for non-school personnel
Lastly, Defendant asserted that Shakeshaft is a “school person” and should not be allowed to testify to the standard of care for non-school personnel. The Court agreed that Shakeshaft is not the appropriate witness to testify, for example, to the standard of care for Lewis Roca attorneys. However, by Defendant’s own account, Plaintiff stipulated that Shakeshaft is “not going to offer any opinions about anything having to do with Lewis Roca.”
II. Defendant’s Motion to Exclude Laurie Fortin
Fortin offered the following opinions in her report: (1) Smith’s behaviors were highly consistent with grooming techniques and strategies utilized by known child sexual offenders; (2) Smith’s behavior became increasingly characteristic of domestic violence perpetrators; (3) Smith endorsed and utilized cognitive distortions commonly used by known offenders; (4) the manipulative nature of Smith’s grooming process significantly contributed to silencing Plaintiff and delaying her disclosure; and (5) the Portsmouth Abbey school environment and culture facilitated Smith’s ability to use and abuse his power and authority as a staff member to groom and sexually abuse and exploit Plaintiff.
a. Fortin’s Qualifications
Defendant did not challenge Fortin’s qualifications to testify on grooming generally but argued that Fortin is not qualified to offer expert testimony regarding school rules, policies, or the boarding school environment.
However, the Court found that Fortin is qualified to testify regarding environmental or cultural factors that facilitate grooming as disclosed in her report. The record before the Court did not reflect that Fortin is opining on the adequacy of school policies or the standard of care applicable to schools like Portsmouth Abbey.
b. Reliability and Relevance of Fortin’s Opinions
Defendant next argued that Fortin did not possess sufficient facts to support her opinions, which must be excluded as speculative.
Again, the Court did not find that Fortin offered any opinions regarding the adequacy of school policies or the boarding school environment generally. And, as Fortin explained in her deposition, her understanding that Smith violated Portsmouth Abbey rules was based on deposition testimony from Portsmouth Abbey staff. Defendant did not point to any evidence contradicting Fortin’s understanding, but to the extent Defendant wished to show Fortin’s understanding relies on disputed facts, Defendant is free to do so on cross examination.
Finally, the Court rejected Defendant’s argument that Fortin’s opinions are irrelevant because Smith is not a party to this case. As Plaintiff pointed out, the relationship between Plaintiff and Smith is a key factor in damages. Because the average juror is not familiar with grooming behaviors or their impact on minor victims, the Court found that Fortin’s expertise will aid the jury in understanding the dynamics of that relationship.
Held
The Court denied Defendant’s Daubert motion to exclude the testimony of Charol Shakeshaft.
The Court denied Defendant’s Daubert motion to exclude the testimony of Laurie Fortin.
Key Takeaway
When ruling on motions to exclude or otherwise limit expert testimony, the Court is mindful that its role as gatekeeper is not intended to serve as a replacement for the adversary system. Ultimately, the rejection of expert testimony is the exception rather than the rule.
Plaintiff is a Delaware limited liability business suing multiple individuals and related trusts for securities fraud arising out of a transaction in which Defendants allegedly induced Plaintiff to purchase over $25 million of Devi Holdings stock through fraudulent misrepresentations about Devi’s financial condition and unpaid tax liabilities. Devi Holdings was a business engaged in engaged in cannabis cultivation and production.
Plaintiff offered the testimony of experts Dr. Zamir K. Punja and Alexander Cooley. Defendants filed a Daubert motion to exclude the testimony of Punja and a joint motion to exclude the testimony of Cooley while Plaintiff filed an omnibus motion to exclude the testimony of Defendants’ proffered experts, Beau Whitney and Barbara Webb.
Plant Pathology Expert Witness
Dr. Zamir K. Punja has been engaged in the study of plant pathology for over 40 years. He received his Bachelor of Science (Hons.) in Plant Science, Agriculture from the University of British Columbia, Vancouver, B.C., Canada, and earned a Master of Science (MSc) and a Doctorate (Ph.D.) in Plant Pathology from the University of California, Davis, California, USA.
Alexander Cooley has nearly twenty years of experience in the cannabis and hemp industries, including senior operational roles in cannabis companies, consulting work, and policy and regulatory engagement.
Beau Whitney is an economist and business operations and governmental affairs specialist with over 20 years of experience. In 2014, he founded Whitney Economics, a cannabis and hemp business consulting, data, and economic research firm based in Portland, Oregon.
Barbara Webb has a MAcc in Accounting from the University of Michigan. She is a Certified Public Accountant who specializes in providing complex tax advisory services and audit support for cannabis businesses.
A. Defendants’ Daubert Motion to Exclude the Expert Testimony of Zamir Punja
Through Punja’s testimony, Plaintiff sought to prove that Devi’s cannabis was already widely infected with HLVd by early 2021, Defendants knew or should have known it, and they fraudulently concealed this when inducing Plaintiff to buy $25 million in shares. Discovery revealed that by early 2022 Devi’s Arizona facility was experiencing a widespread outbreak of HLVd, a pathogen known to cause significant reductions in cannabis yield and quality. Punja opined that the level of HLVd infection documented in 2022 could only have resulted from repeated propagation cycles over multiple years, and therefore the viroid was present—and detectable—by early 2021, during the period in which Defendants were soliciting Plaintiff’s investment.
Defendants sought exclusion of Punja’s testimony on the grounds that it is unreliable, speculative, and irrelevant to the claims pled.
Defendants argued that Punja’s opinions are speculative because he lacked direct HLVd test results from 2021. But the absence of such data is itself a product of Devi’s failure to test. Therefore, Punja’s opinion is consistent with accepted scientific practice.
Defendants argued that HLVd is irrelevant because the Amended Complaint does not expressly reference it, but the Complaint alleged that Defendants concealed that “the vast majority” of Devi’s cannabis was unsellable—a fact directly tied to Devi’s financial condition and the value of the shares Plaintiff purchased.
As a result, Punja’s testimony is therefore relevant to whether Defendants misrepresented or concealed material facts about Devi’s operational viability and financial health.
B. Defendants’ Joint Motion to Exclude Opinion Testimony by Alex Cooley
Defendants argued that Cooley is unqualified because he is not a CPA and lacked formal accounting or tax credentials. But Plaintiff did not offer Cooley as a general accounting or tax expert. Rather, he is offered to explain cannabis-industry-specific accounting issues.
Defendants contended that Cooley used no methodology and that his opinions were speculative because he did not calculate Devi’s exact tax liability. However, Cooley did not purport to calculate Devi’s tax liability. Rather, Cooley’s opinions addressed whether Devi’s accounting practices—such as routing revenue through management companies, zeroing out subsidiary income, and classifying expenses as cost of goods sold—were inconsistent with representations that all taxes were paid, and no accounting issues existed.
Lastly, to the extent the Defendants argued that Cooley invaded the province of the factfinder, any concerns about overreach can be addressed through cross-examination.
C. Plaintiff’s Omnibus Motion to Exclude the Testimony of Defendants’ Proffered Experts
1. Beau Whitney
Whitney is an economist retained to offer opinions regarding cannabis-industry market conditions and to rebut the reports of Plaintiff’s experts, Alex Cooley and Zamir Punja. Plaintiff sought exclusion on the grounds that Whitney’s rebuttal opinions rested on mischaracterizations of Cooley’s report, that his cannabis-market analysis was generic and irrelevant to Plaintiff’s rescission-only claims, that he lacked the qualifications and methodology necessary to rebut Punja’s opinions, and that portions of his report improperly addressed the mental states or beliefs of the parties.
Whitney’s background in cannabis-industry economics, operations, and market analysis provided sufficient expertise to offer the opinions disclosed in his report. Moreover, his rebuttal of Cooley and Punja is grounded in his professional experience and review of the record. Plaintiff’s objections—whether directed at Whitney’s characterization of Cooley’s opinions, the breadth of his market analysis, or the depth of his engagement with HLVd-related materials—are better addressed through cross-examination and the Court’s own evaluation of the weight to be afforded his testimony.
2. Barbara Webb
Webb is a certified public accountant retained to rebut Cooley’s opinions concerning Devi’s accounting practices and tax-related communications. Plaintiff argued that Webb’s testimony should be excluded because it consists largely of narrative summaries and speculative interpretations of internal emails rather than the application of specialized accounting expertise. Webb is a CPA with specialized experience in cannabis-industry tax and accounting practices.
Her rebuttal opinions responded directly to Cooley’s analysis of Devi’s accounting records and tax-related communications. Plaintiff’s challenges largely concerned the inferences Webb drew from internal emails and the extent to which those inferences differ from Cooley’s.
In conclusion, the Court is well-positioned to distinguish between proper expert analysis and factual narrative, and to disregard any testimony that may stray beyond the permissible scope.
Held
1) The Court denied Defendants’ Daubert motion to exclude the testimony of Dr. Zamir Punja.
2) The Court denied Defendants’ joint motion to exclude the opinion testimony by Alex Cooley.
3) The Court denied Plaintiff’s omnibus motion to exclude the testimony of Defendants’ proffered experts, Beau Whitney and Barbara Webb.
Key Takeaway
An expert is not required to possess the ideal dataset; rather, the expert must employ a reliable methodology given the available evidence. Punja’s opinions are not speculative merely because he lacked direct HLVd test results from 2021, particularly where the absence of such data is itself a product of Devi’s failure to conduct testing.
Ascend’s claims arise from Rescar’s misidentification and delivery of a railcar containing resin to Ascend’s phenol unloading area at Ascend’s manufacturing facility located near Pensacola, Florida.
Ascend Performance Materials Operations LLC designated Aaron Imrie as a retained expert to opine on the misdelivery of the railcar and the impact of the mistake on Plaintiff’s equipment and plant operation. However, Defendant Rescar Companies filed a motion to strike Imrie from testifying.
Chemical Engineering Expert Witness
Aaron Imrie is a chemical engineer with over 30 years of technical and commercial experience working or consulting for petroleum and chemical processing businesses.
A. Imrie is qualified to opine on railcar switching or unloading
Defendant argued that Imrie’s testimony on railcar switching and unloading must be limited because, although otherwise credentialed, his “oral deposition testimony confirms he is unqualified to opine on railcar switching or unloading.”
Imrie has extensive experience designing and maintaining operating procedures and systems for chemical plants that utilize railcars to deliver raw materials, like the facility and system at issue in this case. Imrie’s knowledge and general experience working in this industry, specifically assisting with operating procedures and production flow at similar plants, qualifies him to testify as an expert, even though he has not unloaded or switched a railcar himself.
B. Imrie is qualified to give the limited opinions regarding YardMaster contained in his report
Defendant makes the same argument with respect to Imrie’s testimony regarding YardMaster, a computer program—that Imrie is unqualified because he has never personally used YardMaster. However, the Court rejected this argument for the same reasons identified above. Imrie’s discussion of YardMaster in his report is limited to (1) a belief that the Parties previously agreed to implement it at the railyard in question and (2) the intent behind the agreement to implement the electronic system was to improve on the existing handwritten method of tracking railcars.
Imrie has not offered any opinions regarding how YardMaster functions within the computer program itself. Moreover, Imrie’s experience qualifies him to testify about the opinions regarding YardMaster that are identified in his report.
Held
The Court denied Defendant’s motion to strike the testimony of Aaron Imrie.
Key Takeaway
An expert’s qualifications do not need to be as granularly specific as Defendant proposes. Rule 702 allows an expert to be qualified by means of knowledge, skill, experience, training or education. A lack of personal experience does not disqualify expert so long as there is another basis for his qualification.
Case Details:
Case Caption:
Ascend Performance Materials Operations LLC V. Rescar Companies
Plaintiff Douglas Looney, Evergreen’s employee, was standing behind a vacuum truck to wash its interior when a chunk of ash flew out, injuring him.
Defendant intended to present the expert testimony of Jason Henthorn at trial. Plaintiffs asked the Court to exclude Henthorn’s testimony pursuant to Federal Rule of Evidence 702.
Industrial Hygiene Expert Witness
Jason E. Henthorn has a bachelor’s degree in industrial hygiene. He also has experience creating and maintaining work safety programs, training employees on workplace safety, and investigating workplace accidents.
The first opinion that Plaintiffs attacked is that “Looney placed himself in an area of increased risk when he positioned himself in between the half door and the truck’s debris body.” Plaintiffs argued that this opinion should be excluded because it is not based on “any identifiable hazard analysis” and because Henthorn never explained his methodology in reaching this conclusion.
During his deposition, Henthorn testified he had experience with vacuum trucks similar to the one involved in Looney’s accident. Henthorn also suggested there were “materials in the operator’s manual of the truck” and “stickers or placards on the truck” alerting employees to the danger of standing behind the truck.
Because Henthorn’s experience is sufficient to render the opinion reliable and helpful to a jury, the Court will not exclude this opinion.
B. Opinion 2
Henthorn’s second opinion is that Defendant “possessed policies and procedures, including the Vacuum Truck Safety Program, which originated in 2019 and had been revised a number of times.” As Plaintiff’s pointed out, this is simply a factual statement.
Still, the Court decided that Henthorn’s perspective would be helpful to the jury; his experience will allow him to explain whether these policies and procedures apply to the work Looney was doing when he was injured.
C. Opinion 3
The third opinion at issue is that Defendant “did not possess knowledge of a dangerous condition or practice involving its vacuum trucks.” Plaintiffs argued that this opinion “is pure speculation.”
The Court agreed. As Plaintiffs pointed out, “in his deposition, Henthorn could not identify the field supervisor who ordered Looney and his crew to decontaminate the vacuum truck on the day in question.”
Further, Defendant’s own report on Looney’s accident contradicted Henthorn’s conclusion that Defendant lacked knowledge.
D. Opinion 4
Henthorn’s fourth opinion is that “the struck-by hazard of falling debris should have been obvious and apparent to Looney as he relocated himself during his work due to the ash not coming out of the truck as he had previously experienced.”
During his deposition, Henthorn acknowledged that he had no experience with the type of material in the truck Looney was cleaning. He testified that he did not know what type of ash was in the truck, nor how long the ash had been sitting in the truck before Looney began cleaning it, but he explained that both the type of ash and the amount of time it had been sitting would affect its density. Given Henthorn’s lack of knowledge about the material in the truck, the Court held that he cannot reliably testify whether the hazard of falling debris should have been obvious to Looney.
E. Opinion 5
Finally, Henthorn opined that Defendant “did not violate a specific industry standard which caused Looney’s incident.”
Henthorn’s experience in industrial hygiene made him qualified to explain which industry standards may or may not apply to a particular work activity and whether certain employer conduct violates an industry standard. In his deposition, he discussed specific industry standards and explained why, in his view, they did not apply on the day of the accident. As a result, the Court admitted this opinion.
Held
The Court granted in part and denied in part Plaintiffs’ motion to exclude the testimony of Jason Henthorn under Federal Rule of Evidence 702.
Key Takeaway
Some expert opinions are only reliable when supported by scientific testing. Henthorn’s conclusion that Looney placed himself in an area of increased risk is one such opinion.
Case Details:
Case Caption:
Looney V. North American Services Group, LLC
Docket Number:
3:24cv467
Court Name:
United States District Court, West Virginia Southern
Dick’s Sporting Goods, Inc. (“DSG”) operated a retail location in Lyndhurst, Ohio. After the lone up-down escalator in the Lyndhurst Store stopped working, it was not barricaded though the escalator remained non-operational and stationery.
Tiffiney Jones contended that she felt a sharp pain in her toe while climbing the stationary escalator and had stepped on a metal wire located on the escalator steps, which punctured her sandal and sock.
Architecture Expert Witness
Richard L. Zimmerman is currently a licensed, registered professional architect in the State of Ohio, and has been so continuously from 1977 to the present.
He has reviewed and assessed compliance of a wide variety of buildings and sites with local and state building codes and ordinances, and the norms of accepted and reliable architectural, human factors, engineering, construction, maintenance, and safety industry principles, methods and practices.
A. Zimmerman is not Qualified to Give Expert Testimony
DSG argued that Zimmerman’s education and experience demonstrated that he is a qualified architect, but an expert’s status as a qualified architect does not necessarily mean that he can testify on the “retail maintenance of escalators, which is the issue in this case.” DSG asserted that Zimmerman’s conclusions that DSG violated the Ohio Revised Code, Ohio Building Code, Elevator Code, and Escalator Code cannot be made without knowledge of the retail standards for maintaining escalators.
The Court agreed with DSG and found that Zimmerman is not qualified to testify on commercial escalator maintenance and safety. Zimmerman’s qualifications are related to his status as a registered architect and his experience with Ohio Codes, retail locations of escalators, and pedestrian traffic flow.
His experiences as an architect did not provide a foundation for specialized knowledge on the safety, maintenance, and structural integrity of retail escalators. So, without technical or specialized knowledge of the appropriate and relevant standards to maintain escalators, Zimmerman was unqualified to opine on DSG’s adherence to the standard of care to maintain the escalator.
B. Zimmerman’s Conclusions Are not a Product of Reliable Methods
In the methodology’s first step, Zimmerman conducted a fact-finding inquiry by reading the incident report, depositions, and DSG’s internal policies. Zimmerman also reviewed photographs and video surveillance. Notably absent from this factual basis examination are visits to the Lyndhurst Store, inspections of the disputed escalator, modeling, or testing of the escalator. In his second step, Zimmerman reviewed and identified relevant safety standards and provisions of the Ohio Code, which required no data collection, testing, or analysis. Finally, the last step in Zimmerman’s methodology simply applied the facts established in the first step to the various Code provisions identified in the second step. From this application, Zimmerman arrived at the conclusion that DSG failed to maintain a safe premises because Plaintiff attests that there was a sharp object on the escalator. This is a significant analytical jump for Zimmerman to make, and he did not stick the landing.
DSG contended that Zimmerman’s failure to inspect the Lyndhurst Store, examine the escalator, or test Plaintiff’s footwear resulted in untested and unsupported conclusions.
The Court agreed with DSG and found that Zimmerman’s testimony is not based on reliable procedures.
C. Zimmerman’s Opinions Will Not Assist the Trier of Fact
DSG contended that Zimmerman’s testimony contains no new perspectives to assist the jury because his testimony was based on a simple identification of relevant code language and application to readily available documents, which the jury could do themselves.
Consistent with the above analysis, the Court found that Zimmerman’s testimony would not assist the trier of fact in resolving this litigation.
Held
The Court granted DSG’s motion to exclude the testimony of Richard L. Zimmerman.
Key Takeaway
Expert opinions that are not based on site-specific data or a generally accepted modeling but are based on anecdotal evidence with improper extrapolations do not comply with Rule 702 requirements.
Aside from gathering facts and identifying relevant Code provisions, Zimmerman failed to provide a basis for his conclusions that address where the sharp object was located on the escalator, if the object was caused by DSG’s malfeasance, and whether the sharp object caused Plaintiff’s injuries.
