Expert Witness Profiler

Tag: Reliable

  • Accounting Expert’s Testimony on Mitigation Efforts Excluded

    Accounting Expert’s Testimony on Mitigation Efforts Excluded

    This action arises out of a franchise relationship between the Plaintiffs Glenn Misiph and AASK Services, LLC, (together “Plaintiffs”), and the Franchisor Defendants, 360° Painting, LLC, Premium Service Brands, LLC, and Paul Flick (together “Defendants”).

    Plaintiffs alleged that Defendants engaged in fraudulent misrepresentation through marketing materials and Franchise Disclosure Documents (“FDD”).

    To support their claims, Plaintiffs retained Elisabeth O. da Silva, a forensic accountant and damages expert, to calculate, among other things, their damages claims.

    In her report, Da Silva addressed Plaintiffs’ lost opportunity costs, actual and expected profits, and efforts to mitigate damages. The report also evaluated the accuracy of the financial figures disclosed by 360° Painting in its 2017 FDD.

    In response, Defendants engaged Edward J. Herbst, a CPA and CFF with professional experience in both the private sector and federal law enforcement.

    Herbst provided a rebuttal to da Silva’s report assessing her premises, methodology and approach, and rationale. His report concluded that da Silva’s analysis relied on inaccurate assumptions and failed to account for the specific financial and operational realities of the franchise.

    Plaintiffs Glenn Misiph and AASK Services, LLC, and Defendants 360° Painting, LLC, Premium Service Brands, LLC, and Paul Flick filed cross motions in limine to exclude expert testimony.

    Accounting Expert Witnesses

    Elisabeth O’Toole da Silva is a certified public accountant (“CPA”) and is certified in financial forensics (“CFF”) with over 25 years of experience in forensic accounting, auditing, and economic damage calculations.

    Her professional history includes investigating complex financial disclosures and serving as an expert witness for private litigants and the Securities and Exchange Commission. Da Silva also served as a neutral arbitrator in accounting and contract disputes.

    Get the full story on challenges to Elisabeth O. da Silva’s expert opinions and testimony with an in-depth Challenge Study.

    Edward J. Herbst previously served as a managing director in the forensics practice of a private accounting firm and held a senior executive service position within the Federal Bureau of Investigation. His experience includes calculating economic losses in financial crime investigations and providing testimony in federal court regarding fraud and money laundering schemes.

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

    Discussion by the Court

    Elisabeth O. da Silva

    Defendants sought to exclude all of da Silva’s testimony due to: (1) lack of “fit” between da Silva’s calculations and Plaintiffs’ claimed damages; (2) unreliable methodology; and (3) improper legal or narrative conclusions.

    1. The “Fit” Of Damages

    Defendants argued that da Silva’s “but-for” damages testimony did not “fit” the case because Plaintiffs sought rescission damages, and da Silva’s report calculated expectation damages (lost profits).

    In her report, da Silva provided two damages methods. The first method provided a damages calculation that would restore Plaintiffs to the economic position they would have occupied absent Defendants’ representations, the so-called unwind damages theory. The second method accounts for Plaintiffs’ investment in the franchise and provided a damages calculation that would put Plaintiffs in the position they would have been in had 360° Painting fulfilled its obligations, the so-called but-for damages theory.

    Under da Silva’s but-for damages theory, she calculated the difference between Plaintiffs’ actual profit and losses and Defendants’ financial projections for gross revenue and expenses. Testimony regarding this theory is integral to proving Plaintiffs’ damages on their fraud and breach of contract claims.

    Under Massachusetts law, Plaintiffs who have proved negligent misrepresentation are entitled to recover damages including the pecuniary loss caused by their reliance on the false information.

    Defendants argued that da Silva included no evidence regarding the worth of the franchise when Misiph purchased it.

    However, even if Defendants believe da Silva’s testimony is insufficient to prove one specific metric of loss, that does not invalidate her entire testimony, particularly where that testimony is relevant to other categories of damages. Because Plaintiffs bear the burden of proving each of their requested damages, da Silva’s calculations are relevant to their various theories of recovery. 

    2. Methodology

    Defendants argued that da Silva’s testimony should be excluded because her methodology does not include actual performance data and the data on which she relied is too narrow in scope.

    Specifically, Defendants criticized: her reliance on an assumption that had Misiph continued as a franchisee, he would have operated his franchise for 10 years; her failure to clarify or quantify how franchisor support figured in her calculation; her failure to account for variables like COVID-19 or market conditions; and her failure to use internal tracking metrics in her calculations, among other criticisms. This Court found that these challenges go to the weight of the evidence, not its admissibility.

    Here, da Silva clearly described the economic damages model she used, stating that she used a “widely accepted damages methodology.” Defendants have provided no evidence to the contrary. Indeed, Plaintiffs represent that at his deposition, Herbst did not take any issue with da Silva’s methodology. Further, the ten-year term used in the report is not unsupported speculation; rather, it is rooted in the initial term of the Franchise Agreement itself. The other variables da Silva used are clearly described and supported by a detailed economic model within her report.

    3. Legal Or Narrative Conclusions

    Finally, Defendants argued that da Silva’s opinions on the consistency of the FDD and Misiph’s mitigation efforts are improper narrative or legal argument. Specifically, Defendants contended that: (1) da Silva’s opinion that the FDD provided to Misiph is inconsistent with the financial information supplied during discovery is jury argument; and (2) her use of the word “materially” and her opinions regarding Misiph’s duty to mitigate damages constituted legal argument.

    Here, da Silva’s analysis involves a mathematical reconciliation of disparate financial data sets. This Court found that an accounting of how these figures are derived and reconciled provides a technical framework that exceeds the common knowledge of a lay juror. Da Silva’s opinion would help the trier of fact to understand the evidence and/or to determine a fact in issue. It is therefore admissible.

    In her testimony, da Silva did not purport to render an opinion that Defendants knowingly made a false representation of material fact to induce Misiph to enter the franchise agreement. Rather, she sought to opine that her calculations differed significantly from the figures stated in the FDD.

    This Court did, however, find that da Silva’s opinion that “Misiph has a duty to mitigate damages and did, in fact, take reasonable, non-burdensome steps to avoid losses” must be excluded. While accountants may calculate any offset of earned income against claimed losses, they are not qualified to offer a legal conclusion regarding what the law requires of a Plaintiff’s mitigation efforts. Similarly, an expert accountant may not opine on the reasonableness of a Plaintiff’s mitigation efforts as this is a quintessential jury question. Rather, these facts may be offered to the jury, but not by da Silva in the form of expert opinion. The jury may then reach its own conclusion.

    Edward J. Herbst

    Plaintiffs sought to exclude Herbst’s testimony, alleging that he is unqualified to offer damages opinions, his methodology is unreliable, and his analysis rests on inaccurate factual data.

    1. Qualifications

    Plaintiffs argued that Herbst is unqualified because he has never testified as an expert and has admitted to lacking the competence to perform an independent damages model or business valuation.

    As described above, Herbst, a CPA and CFF, has extensive experience in financial investigations. His lack of history as a testifying expert or prior experience in franchise disputes and business valuation does not disqualify him from serving as a rebuttal expert. An expert’s training in a general field, in this case forensic accounting, is often sufficient to permit testimony on specialized sub-topics within that field.

    2. Methodology

    Plaintiffs further challenged Herbst’s methodology, characterizing it as a subjective “armchair” critique that lacked an independent analytical framework.

    Along with analyzing da Silva’s report and its accompanying premises, methodology, and findings, Herbst’s methodology consisted of reviewing documents such as the complaint, Defendants’ amended counterclaims, portions of deposition transcripts, and copies of Misiph’s 2019-2023 tax returns. Then, Herbst applied his forensic accounting background to identify what he characterized as incorrect or unstandardized variables in da Silva’s calculations.

    His report indicated that he was looking for foundational support for da Silva’s opinion within the bounds of accounting principles. The fact that he did not perform independent calculations to show exactly how a change in variables would move the final damages number may diminish the weight of his testimony, but it does not make his methodology inherently unreliable. Accordingly, the Court held that Herbst’s testimony is not excludable on this basis.

    3. Data Accuracy

    Finally, Plaintiffs argued that Herbst’s analysis is based on incomplete information. Specifically, Plaintiffs alleged that Herbst reviewed only portions of Misiph’s and Flick’s depositions, which led Herbst to make incorrect assumptions and effected his analysis.

    In a deposition, Herbst acknowledged certain errors, such as his misclassification of commissions which were actually fixed franchise fees. These admissions and other alleged inaccuracies go to the weight and credibility of his testimony.

    A jury is capable of determining whether Herbst’s critique remains valid despite these errors or if his misunderstanding of the underlying data renders his conclusions unpersuasive.

    Held

    • The Court granted in part and denied in part Defendants’ motion to exclude all of Elisabeth O. da Silva’s testimony.
    • The Court denied Plaintiffs’ motion to exclude Edward Herbst’s testimony.

    Key Takeaway

    The reliability of an expert’s methodology “is a flexible inquiry, allowing for consideration of factors like whether the expert’s methodology has been objectively tested; whether it has been subjected to peer review and publication; the technique’s known or potential error rate; and whether the expert’s technique has been generally accepted within the relevant industry.”

    An expert’s failure to include specific variables in a complex financial model does not render the testimony inadmissible so long as the underlying assumptions are those that experts make with some frequency.

    Case Details:

    Case Caption: Misiph V. 360 Painting, LLC
    Docket Number: 1:22cv11778
    Court Name: United States District Court, Massachusetts
    Order Date: March 03, 2026
  • Toxicology Expert’s Testimony on Gasoline Exposure Admitted

    Toxicology Expert’s Testimony on Gasoline Exposure Admitted

    Plaintiff Ashley Adams, the widow of Lonnie Adams filed suit against E-Z Mart, a gas station and convenience store, after Mr. Adams died while working in an underground tank sump on E-Z Mart’s property.

    Defendant and Third-Party Plaintiff, Yates Group, Inc. f/k/a E-Z Mart Stores, Inc. filed a Rule 702 motion to limit Dr. Ian McIntyre‘s testimony pursuant to Daubert.

    Toxicology Expert Witness

    Ian Matthew McIntyre is a forensic toxicologist. His professional experience encompasses over 34 years of work in the specific scientific field of forensic toxicology, with particular emphasis on postmortem analysis.

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

    Discussion by the Court

    E-Z Mart argued that McIntyre’s opinion that gasoline may leach methamphetamine from tissue, resulting in higher concentrations being detected in the bloodstream, is ipse dixit, not supported by scientific literature, and too large an inferential leap to be admissible.

    In the present case, the relevance of McIntyre’s opinion is undisputed. The only question the Court must resolve is whether it is sufficiently reliable pursuant to 702 and Daubert. The Court found that it is. McIntyre elaborated on how he reached his conclusion in his deposition, and the Court finds that his stated rationale, viewed in light of his education and experience, made the challenged opinion reliable under Daubert and 702. Additionally, McIntyre cited to published literature he referenced in forming this opinion. The simple fact that the Defendant’s experts disagreed with McIntyre’s findings did not render them inadmissible.

    Held

    The Court denied Defendant and Third Party Plaintiff’s motion to limit Dr. Ian McIntyre’s testimony.

    Key Takeaway

    Establishing reliability does not require showing that the expert’s testimony is “indisputably correct.”

    To the extent McIntyre’s opinions are insufficiently explained or contradicted by other studies or experts, the Plaintiff should raise these challenges through cross examination and the testimony of their own experts.

    Case Details:

    Case Caption: Adams v. E-Z Mart Stores, Inc.
    Docket Number: 6:23cv278
    Court Name: United States District Court, Oklahoma Eastern
    Order Date: March 03, 2026
  • Internal Medicine Expert’s Testimony on a Syncopal Episode Admitted

    Internal Medicine Expert’s Testimony on a Syncopal Episode Admitted

    On June 3, 2020, Matthew Vomero was driving a tractor trailer when his vehicle crashed into a building insured by Travelers Home and Marine Insurance Company (“Travelers”). At the time of the accident, Vomero was acting in the course and scope of his employment with U.S. Xpress.

    The parties dispute whether Defendants have presented admissible evidence supporting their assertion that Vomero had such a medical incident, and Travelers asserts that Vomero merely fell asleep while driving. 

    Defendants’ expert, Dr. Adam C. Sobel, a physician, offered an expert opinion that prior to crashing his tractor trailer, Vomero suffered a “syncopal episode” as a result of laughing, causing him to lose consciousness and the ability to steer his vehicle. Travelers filed a motion to exclude Sobel’s testimony under Rule 702.

    Travelers did not challenge Sobel’s qualifications but sought to have Sobel’s testimony excluded as unreliable and unhelpful to the jury because 1) his testimony was not supported by evidence in the record, 2) Sobel did not review enough of the record to come to a reliable conclusion, 3) Sobel did not cite to any scholarly materials supporting his diagnosis, and 4) Sobel failed to testify that he came to his conclusions with a reasonable degree of medical certainty.

    Internal Medicine Expert Witness

    Adam C. Sobel, M.D. is a board-certified internist with more than three decades of clinical, academic, and forensic medical experience. He earned his B.S. through Pennsylvania State University’s six-year pre-medicine/medical program and his M.D. from Jefferson Medical College, followed by an internal medicine internship, residency, and service as Chief Medical Resident at Thomas Jefferson University Hospital. Dr. Sobel is certified by the American Board of Internal Medicine and is licensed to practice medicine in Pennsylvania and New Jersey. He has served as a Clinical Assistant Professor of Medicine and as an attending physician at multiple major hospital systems, including Penn Medicine and Main Line HealthCare.

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

    Discussion by the Court

    His testimony was not supported by evidence in the record

    The Court found Travelers’ argument that Sobel’s testimony is unreliable to be contradicted by evidence in the record. According to Travelers, because Vomero was not laughing prior to the crash, Sobel’s conclusion that Vomero suffered a laughter-induced syncopal episode is frivolous. However, Defendants presented the testimony of Nicholas Rice (“Rice”), a fellow truck driver, who stated that he was speaking with Vomero on the phone prior to and during the crash. Rice testified that during his phone call with Vomero, he heard Vomero laughing, heard Vomero go silent for fifteen to twenty seconds, and then heard a crash. 

    Sobel did not review enough of the record to come to a reliable conclusion

    The Court further rejected Travelers’ assertion that Sobel did not review sufficient evidence to come to a reliable medical conclusion. According to Sobel’s report, Sobel reviewed Vomero’s medical records, lab tests, and various other parts of the record such as a police report and Vomero’s deposition transcript.

    Sobel did not cite to any scholarly materials supporting his diagnosis

    The Court similarly rejected Travelers’ contention that Sobel’s conclusions regarding a laughter-induced syncopal episode are unreliable because Sobel did not cite to any scholarly articles regarding such a condition.

    Sobel failed to testify that he came to his conclusions with a reasonable degree of medical certainty

    Finally, the Court did not accept Travelers’ conclusion that Sobel’s testimony is neither reliable nor helpful to the jury because he did not testify that he reached his conclusions to a reasonable degree of medical certainty. The Court acknowledged that Sobel’s report contains statements such as “it is more probable than not that a person laughing does not simply fall asleep and it is more likely than not that Vomero had a syncopal episode.”

    While such language would indicate that Sobel did not reach his conclusions to the degree of medical certainty required by Pennsylvania law, during his deposition, Sobel testified that there was close to a one hundred percent chance that Vomero did not fall asleep prior to the accident and confirmed that he reached his opinions to a reasonable degree of medical certainty.

    While a reasonable jury could choose to discredit Sobel’s testimony due to perceived inconsistencies, Sobel’s testimony is sufficient for purposes of the instant motion and such inconsistencies are proper topics for cross examination.

    Held

    The Court denied Traveler’s motion to exclude the testimony of Adam Sobel.

    Key Takeaway

    A medical expert is not required to cite to scholarly or peer reviewed articles in order to provide a reliable opinion.

    Case Details:

    Case Caption: The Travelers Home And Marine Insurance Company V. U.S. Xpress, Inc.
    Docket Number: 3:22cv700
    Court Name: United States District Court, Pennsylvania Middle
    Order Date: February 25, 2026
  • Construction Expert Was Not Allowed to Opine on Repair Costs

    Construction Expert Was Not Allowed to Opine on Repair Costs

    On August 27, 2020, Hurricane Laura made landfall in Southwest Louisiana. In the original complaint, The Pentecostal Church of DeQuincy (“TPCD”) alleged that it sustained damage from the Hurricane, and that Church Mutual has underestimated the cost of repairs. The five (5) buildings considered as “Covered Property” at issue in this litigation are identified as the: (1) Sanctuary, (2) Activity Center, (3) Sunday School/Fellowship Hall, (4) Mobile Home, and (5) Pole Barn. During the relevant time period, Church Mutual provided coverage for the Covered Property.

    The Church reported its claimed loss on September 1, 2020. TPCD retained Robin D’Aunoy to produce fixed-price bids that reflected the rebuild costs utilizing August, 2020 pricing.

    Church Mutual filed a motion to exclude or limit the testimony of D’Aunoy.

    Construction Expert Witness

    Robin M. D’Aunoy has decades of relevant experience as an estimator. Twenty-five years ago, he started his own construction estimating, consulting, and project coordination company, working for subcontractors and general contractors, architects, engineers, developers, mediators, and attorneys. Since 2005, he has provided expert witness services in court cases as an estimator and has worked with and for mediators, construction experts, and consultants.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Robin D’Aunoy’s expert testimony.

    Discussion by the Court

    D’Aunoy explained that he prepared the spreadsheet estimate based on what he would charge to do the work. To obtain his pricing, D’Aunoy called certain vendors in each area of skill or trade (“trade partners”), such as for the steeple, carpentry, floors, electrical, plumbing, HVAC, etc. and came up with a “conservative” number. Specifically, he testified that he “did a base price on an average cost,” using “a few estimates that I did during that year, and looked at some of the pricing that pertained to the project, with similar type projects.”

    Church Mutual argued that D’Aunoy’s methodology is unreliable, unrepeatable and unfounded because D’Aunoy has never been to TPCD site, either before or after Hurricane Laura.

    Church Mutual complained that D’Aunoy’s bid did not specify the type of flooring in specific rooms, the type of roof, and is generally not specific as to pricing.

    The Court found that D’Aunoy’s fixed-price bid did not meet the requirements of Rule 702 of the Federal Rules of Civil Procedure and Daubert. D’Aunoy’s fixed-price bid cannot be repeated; it cannot be tested. His methodology is flawed, and the fixed-price bid is unreliable, therefore, inadmissible.

    Held

    The Court granted Church Mutual’s motion in limine to exclude or limit the testimony of Robert D’Aunoy.

    Key Takeaway

    A key inquiry illuminating whether a methodology is reliable is whether it can be tested (and repeated) or subjected to peer review or publication.

    Case Details:

    Case Caption: Pentecostal Church Of Dequincy V. Church Mutual Insurance Co S.I.
    Docket Number: 2:22cv2782
    Court Name: United States District Court, Louisiana Western
    Order Date: February 04, 2026
  • Construction Expert Allowed to Opine on Repair Estimates

    Construction Expert Allowed to Opine on Repair Estimates

    This matter involves an insurance claim for damages associated with hurricane Laura. On or about September 16, 2020, Plaintiff, The Pentecostal Church Of Dequincy (“TPCD”) retained a public adjuster, Chris Tremaine. Tremaine worked with Church Mutual’s field adjuster, Trey Johnson, to schedule a joint inspection of TPCD’s campus on September 30 and October 1, 2020. Tremaine worked with Kelly Spence, a specialist for the estimating program, Xactimate. However, due to the volume of cases Tremaine and Spence were undertaking, they retained Joe Taylor to perform the preliminary task of taking measurements and developing rough Xactimate estimates for TPCD’s campus buildings.

    Taylor produced rough estimates for five (5) structures dated November 25, 2020. Kelly Spence then reviewed these rough estimates and made necessary corrections to measurements and building finishes for the three larger structures, the Sanctuary, Sunday School, and Activity Center. These three (3) corrected Xactimate estimates were completed on or about December 9 and December 10, 2020.

    Joe Taylor’s November 25, 2020 rough estimates for the Sanctuary, Sunday School and Activity Center were never produced to Church Mutual Insurance (“CMI”) as part of the claim adjustment process. They were produced by TPCD’s counsel to CMI’s counsel only two (2) years after the loss.

    Motion to Exclude

    CMI’s Neil Wright, a construction consultant, produced an expert report evaluating the differences between Taylor’s November 25, 2020 Xactimate rough estimates for the Sanctuary, Sunday School and Activity Center and Kelly Spence’s corrected estimates for the December 8, 2020 Activity Center estimate and the December 10, 2020 corrected estimates for the Sanctuary and Sunday School.

    To simplify, Wright compared three (3) rough estimates that were never produced to CMI for claim purposes with three (3) corrected versions that were presented to CMI.

    TPCD filed a motion to exclude Wright’s expert testimony because this simple task does not involve any specialized knowledge (only a calculator) and clearly will not provide any assistance to the trier of fact.

    Construction Expert Witness

    Fred Cornelius (Neil) Wright III is a senior forensic building consultant whose experience includes conducting thousands of building inspections and more than 2,000 post-catastrophe inspections following major hurricanes. He regularly prepares and analyzes repair estimates.

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

    Discussion by the Court

    Church Mutual remarked that Wright inspected the TPCD properties on March 27, 2024, and reviewed an exhaustive list of estimates, photographs, and documents associates with this litigation. He then authored a detailed expert report which included an analysis of the November 25, 2020, and December 8-10, 2020, Exact Estimates produced by Plaintiff.

    Wright testified that his role included the following: “analyze the data that’s provided, do a comparative analysis of photographs, create an estimate using Xactimate and RSMeans to further the process, and put a price on the recommended scope of repairs. . .”

    Church Mutual contended that the two estimates reflect a change in scope, quantities or materials because they both utilized the same October 2020 price list. Thus, Church Mutual posits that Wright’s testimony is necessary and helpful to understand where the increases originated and what they represent.

    TPCD moved to exclude the first Exact Estimate because it was not the estimate that it submitted to Church Mutual for its claim of damages. Church Mutual argues that its expert should have the opportunity to explain to the jury, line-item-by-line-item, each change which resulted in an increase of $274,707.83 in estimated damages from its initial estimate. Church Mutual also contended that its experts should be allowed to analyze materials produced in discovery to show the existence of materially different estimates prepared by Plaintiff’s representative, which goes to TPCD’s credibility, consistency, and intent. The Court agreed with Church Mutual that this evidence is relevant and admissible.

    Held

    The Court denied The Pentecostal Church of DeQuincy’s motion to exclude the testimony of Neil Wright.

    Key Takeaway

    Wright’s testimony will assist the trier of fact because he conducted a line-by-line comparative analysis of complex estimates to identify changes in quantities, materials, scope, and pricing which requires specialized knowledge of estimating methodology and construction practices.

    Case Details:

    Case Caption: Pentecostal Church Of Dequincy V. Church Mutual Insurance Co S.I.
    Docket Number: 2:22cv2782
    Court Name: United States District Court, Louisiana Western
    Order Date: February 04, 2026
  • Petroleum Engineering Expert’s Testimony on Offshore Rig Operations Admitted

    Petroleum Engineering Expert’s Testimony on Offshore Rig Operations Admitted

    This matter concerns an incident aboard the Valaris 144 while the vessel was performing offshore drilling services in the Gulf of Mexico off the Louisiana coast. Caleb Kittrell worked as a roustabout for Ensco Offshore on board the vessel owned by Rowan Offshore Luxembourg. On December 27, 2023, Kittrell was instructed to disconnect a jet line hose on board the vessel; however, as he went to disconnect the line, not knowing the line was still pressurized, the line disconnected and struck Kittrell’s hand resulting in injuries to his hand, including a “gamekeeper’s” fracture.

    As a result of this incident, Kittrell had surgery to repair his hand and continues to suffer pain in his left thumb and index finger.
    Plaintiff asserted claims under the Jones Act, the General Maritime Law of Unseaworthiness and for the Seaman’s Remedy of Maintenance and Cure.

    Perrin R. Roller, PE, a professional petroleum engineer, was retained by the Defendants to opine about the investigation of the incident at issue in the case and the operations that were conducted. Plaintiff filed a Daubert motion, challenging the testimony and opinions of Roller.

    Petroleum Engineering Expert Witness 

    Perrin R. Roller, PE has more than 40 years of experience in the oil and gas industry, including significant experience working offshore on jack-up drilling rigs.

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

    Discussion by the Court

    Plaintiff challenged Roller’s opinions arguing that they are not based on reliable methodology. Defendants argued that Roller should be permitted to testify based on his extensive experience in the oil and gas industry. The Court agreed.

    Roller’s curriculum vitae and affidavit detail his experience in the oil and gas field, from his start as a “roughneck” to his current role as a petroleum engineer and industry consultant. In addition to his personal experience in the oil and gas industry, having performed the task that Plaintiff performed in the present case, Roller relied upon industry practices and the Code of Federal Regulations to supplement his methodology. The Court found that Roller’s over forty years of experience in the field and his reliance on industry standards and applicable federal regulations in his report are “sufficient to withstand a Rule 702 challenge.”

    Plaintiff pointed to Roller’s opinion that “The Valaris 144 was conducting jetting operations for several weeks prior to the incident involving Mr. Kittrell. In fact, the right was performing the jetting operations, almost exclusively for this time period. Mr. Kittrell would have seen and known the operations that were being conducted during his time for this particular hitch on the rig” to argue that this opinion is highly speculative and conclusory.

    Because the opinions offered by Roller did not rely on completely unsubstantiated factual assertions, the Court will not exclude his testimony based on Plaintiff’s challenge to its reliability.

    Held

    The Court denied the Plaintiff’s Daubert motion to exclude the testimony of Defendants’ expert Perrin R. Roller.

    Key Takeaway

    Having considered the opinions offered in light of the facts as alleged by Plaintiff, and further having determined that Roller’s opinions are based not only on his experience working in the oil and gas industry but also upon federal regulations and standard industry practice, the Court found that his testimony will aid the trier of fact in understanding the complicated practices and procedures of working on a vessel offshore in the oil and gas industry.

    Case Details:

    Case Caption: Kittrell V. Ensco Offshore, LLC
    Docket Number: 2:24cv2947
    Court Name: United States District Court, Louisiana Eastern
    Order Date: February 02, 2026
  • Accounting Expert Was Allowed to Opine on the Lease Auditing Process

    Accounting Expert Was Allowed to Opine on the Lease Auditing Process

    600 Cleveland owned a commercial office building located at 600 Cleveland Street, Clearwater, Florida 33601 from September 9, 2013, to April 1, 2024. Bank of America, N.A. (BANA) and 600 Cleveland assumed a lease agreement originally entered into by other parties on December 1, 1986, and both were bound by the agreement. This lawsuit arises from purported violations of the parties’ lease agreement (“Lease”). BANA counterclaimed that 600 Cleveland overcharged BANA for its share of Common Area Maintenance (“CAM”) under the Lease.

    600 Cleveland filed a motion to exclude the entire expert report of Tracy P. Chelepis (“Chelepis Report”) and to bar him from testifying at the upcoming bench trial. The Chelepis Report relates to an audit performed by Chelepis’ firm, which found that 600 Cleveland overcharged BANA for CAM fees under the Lease by $160,882.01.

    Accounting Expert Witness

    Tracy P. Chelepis holds a Bachelor of Science in accounting from the University of Kansas where he took multiple classes on auditing, a CPA license for which he attends 80 hours a year in continuing education, and a real estate license as both agent and broker for which he also attends mandatory continuing education.

    Chelepis also worked as an accountant for a major accounting firm performing financial statement audits and then spent years as a construction accountant for AT&T.

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

    Discussion by the Court

    600 Cleveland made three arguments: (1) Chelepis’ methodology is unreliable; (2) his opinion is ipse dixit; and (3) his testimony would not help the trier of fact.

    Cleveland argued that Chelepis should be barred from testifying because “lease auditing” does not have “articulated industry standards,” “peer review processes,” or a “regulatory governing body to which his opinions can be tested.” Cleveland contended that Chelepis’ reliance on his knowledge and experience as a CPA, purportedly without further explanation, rendered his methodology unreliable.

    BANA correctly identified that, for non-scientific expert testimony, there need not be articulated industry standards, peer review processes, or a regulatory governing body. Nor did the fact that Chelepis’ methodology required him to interpret terms in the lease to determine whether certain costs were properly included make his opinion inherently unreliable.

    Chelepis’ deposition testimony also undermined 600 Cleveland’s argument that his opinion is ipse dixit. Chelepis explained at length the general process he used to audit leases. He then reviewed the lease’s provisions and amendments and explained how he interpreted and applied them to reach his opinion. Chelepis similarly explained his accounting calculations and his underlying reasonable assumptions.

    The Court concluded that Chelepis’ testimony would be helpful in navigating the numerous financial records and reconciling them, using accounting principles, with the lease’s guidance for what could properly be charged as operating costs.

    Held

    The Court denied 600 Cleveland’s Daubert motion to exclude the testimony of Tracy Chelepis.

    Key Takeaway

    The standards of scientific reliability, such as testability and peer review, do not apply to all forms of expert testimony and a district court may decide that non-scientific expert testimony is reliable based upon personal knowledge or experience.

    Case Details:

    Case Caption: 600 Cleveland, LLC V. Bank Of America, N.A.
    Docket Number: 8:24cv1652
    Court Name: United States District Court, Florida Middle
    Order Date: January 23, 2026
  • Ski Safety Expert was Allowed to Opine on the Use of Blue Fencing

    Ski Safety Expert was Allowed to Opine on the Use of Blue Fencing

    This case arises from a skiing accident that occurred at Mountain Creek’s ski resort (“the Resort”). On February 21, 2021, Pierino Perciballi and his sixteen-year-old son Matteo Perciballi chose to ski down the Matchmaker trail, an intermediate difficulty terrain park course contained within the Resort. The Matchmaker trail is adjacent to the Resort’s “learning area.”

    Mountain Creek uses blue, mesh fencing to separate Matchmaker trail from the learning area. In his descent down Matchmaker trail, Perciballi collided with this blue fencing, tangling his legs and violently falling to the ground. This collision caused him to sustain significant injuries, requiring four days of hospitalization and leaving him with an ongoing disability. 

    Plaintiffs filed this case on February 17, 2023, alleging two causes of action: (1) negligent management and design of the Resort resulting in Mr. Perciballi’s injuries, and (2) loss of consortium on behalf of his wife Brigida R. Perciballi.

    Defendants filed a motion to preclude Plaintiffs’ expert witness, Richard Penniman.

    Ski Safety Expert Witness

    Richard C. Penniman has been a consultant to the ski industry since 1983, and has been qualified as an expert on, inter alia, slope design, snowmaking and impact mitigation in numerous state and federal courts across the United States. He is a member of numerous ski organizations and has lectured extensively on the topic of ski safety. Penniman has served as an Adjunct Instructor at Sierra Nevada College where he taught Ski Area Mountain Operations and Safety for nine (9) years. Penniman has also published numerous peer-reviewed articles on ski safety

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

    Discussion by the Court

    A. Penniman’s unannounced inspection of the Mountain Creek Resort does not justify barring his testimony

    Mountain Creek’s first argument against the admissibility of Penniman’s decision does not challenge the sufficiency or applicability of his expertise; rather, it asked the Court to exclude Penniman’s opinion as a sanction for failing to follow Fed. R. Civ. P. 34(a)(2).

    In his deposition, Penniman admitted to taking an unannounced trip to the Resort in March 2023, where he conducted an examination of the Resort’s grounds to assess the site of the accident and the Resort’s safety procedures in general.

    When determining whether to impose a discovery sanction, the movant must first show that there has been a violation of the rules of discovery or the orders of the Court. Plaintiffs argued that there was no need for Penniman to get special permission from Mountain Creek to investigate a publicly accessible location, even if that location was owned by Mountain Creek.

    The Court held that where the premises are open to the public and the inspecting party has permission to enter (and does not deviate from the parameters of the permission), parties are not required to seek approval prior to inspection under Rule 34, unless the inspection poses a greater, articulable danger or burden to the business, employees, or other visitors than is expected of a typical visitor.

    Applying this rule, Penniman acted in almost every way as an ordinary skier. Even if Penniman’s inspection was a discovery violation, Mountain Creek did not sufficiently argue that exclusion was warranted. Though Mountain Creek claims it is “severely prejudiced” by the unannounced inspection, the only prejudice it cited is that it was “not present to observe the inspection,” or able “to document the conditions observed or observable on that date.”

    B. The Penniman Report is sufficiently reliable to assist the jury and will not be excluded

    Mountain Creek’s second argument for precluding Penniman’s testimony and report from the jury is that he lacks a reliable foundation for his opinion. Mountain Creek sought to exclude the following topics from Penniman’s opinion: (1) the “use of blue fencing” in the skiing industry; (2) the role, if any, shadows played in causing the accident; (3) how most North American ski resorts organize their ski trails; and (4) whether the “progression area” used to train new skiers is a hazard when placed next to a trail for more experienced skiers.

    1. Penniman is permitted to testify to the relative advantages of fence coloring at different ski resorts

    In his expert report, Penniman discussed the significance of fencing colors on the safety of skiing trails. According to Penniman, “blue fabric fencing such as that with which Mr. Perciballi became entangled can be very difficult to discern from shadows on the snow surface later in the day,” and for that reason the industry standard is that “any fencing, hazard marking or safety signs be brightly colored and highly visible so as to attract attention.”

    However, Mountain Creek believed that this testimony lacked “factual evidence from the record in this case,” and is instead “based solely on his personal experience and limited discussions with ski patrollers.”

    The Court disagreed. Penniman’s report and testimony contain sufficient foundation. It is uncontested that: (1) Mountain Creek used blue fencing at the time of the accident; (2) Plaintiffs’ accident happened in the afternoon; (3) Penniman made an inspection of the site of the accident and observed the shadow cover of the area in the afternoon; (4) at least some ski resorts in North America use brightly-colored fencing; and (5) Penniman claimed, in his professional experience, use of brightly-colored fencing is standard. This is a sufficient factual foundation whereby a reasonable jury could find that such a standard exists, should they credit Penniman’s testimony.

    2. Penniman may not testify that the shadows ’caused’ Plaintiffs’ accident

    The Penniman Report also assesses the role that shadows play in terms of hazardous course conditions while skiing, both in general and in how it contributed to Plaintiffs’ accident in particular.

    Mountain Creek challenged the admissibility of these claims on two grounds. First, it argued that Penniman improperly opined on the cause of an accident he was not present to witness and of which has no personal knowledge. Second, Mountain Creek interpreted Penniman’s opinion as contradicting the fact witnesses in this case without cause and believed the contradiction is severe enough to warrant precluding his testimony.

    Mountain Creek specifically objected to a line in the Penniman Report claiming “the shadows appear to have caused Mr. Perciballi not to discern the difference between the long tree and pole shadows across his path and the blue fence.” In making this conclusion, Penniman did not quote Perciballi or his son, and by his own testimony has not personally spoken to either fact witness. The Court held that Penniman’s inspection of the site on a different day, without personally witnessing or reviewing the accident, is not sufficient personal knowledge to testify about its cause.

    To the extent Mountain Creek challenged the admissibility of any opinion offered by Penniman pertaining to shadows on the ski track, the Court found this opinion admissible. Perciballi may believe the lack of visibility was caused by snow cover, rather than shadows, but this is consistent with the Penniman Report which states that shadows and snow make blue mesh fencing less visible.

    3. Testimony about an alleged generally-applicable standard for ski course design is admissible, even when based on personal experience

    Finally, Mountain Creek objected to the sections of Penniman’s report and testimony that claimed the “standard custom and best practice” of ski resorts is to have “learning areas . . . separated geographically from the other trails,” to avoid conflict with other skiers.

    However, Mountain Creek did not provide a legal basis for its assertion that Penniman must have a “written . . . industry standard,” to support his opinion that the placement of the learning area at the Mountain Creek resort was not best practice.

    Plaintiffs argued that Penniman is not testifying that Mountain Creek failed by not living up to his personal standard. Instead, they contended he is testifying that there is an unwritten industry standard and—as an expert—he is in a position to know it. To support their interpretation of Penniman’s opinion, Plaintiffs offered several surveys and reports on the safety protocols of ski resorts authored by Penniman, most notably The California Mountain Resort Safety Report: Survey Methodology and Scoring Criteria (the “California Mountain Report”), as evidence of his knowledge of ski safety standards. For his part, Penniman also testified in his deposition about this study and the research he performed for that study alongside his personal observation of the practices at “over 300 ski areas in the U.S.,” which formed the basis for his opinion that it is an industry standard for resorts to separate learning areas “geographically.”

    This may be a “shallow basis as to any industry standard,” as Mountain Creek says, but it is nonetheless sufficient for the “liberal policy of admissibility,” for expert opinions.

    C. Experience as a professional ski instructor and ski resort safety consultant are sufficient to testify as an expert

    Mountain Creek also challenged Penniman’s qualifications to give his opinion on how skiers typically act, and how they navigate a trail because he is “not trained in human factors, human behavior, biomechanics, engineering, or psychology.”

    Mountain Creek’s assertion that Penniman’s decades of experience as a trainer, ski patrol member, and ski trail safety designer “does not constitute superior knowledge, education, experience or skill on the subject matter of skier’s behavior,” to a jury who may have never skied before, because he does not have an unrelated degree in “human factors, human behavior, biomechanics, engineering, or psychology,” is not credible.

    The Court found that Penniman is sufficiently qualified to serve as an expert on skier behavior and expectations. 

    Held

    The Court granted in part and denied in part Mountain Creek’s motion to preclude Richard Penniman’s testimony.

    Key Takeaway

    An expert may testify as to his or her opinion on the ultimate cause of an injury, even “in the absence of complete information,” so long as the expert has sufficient direct knowledge to ground his or her opinion.

    But when an expert opinion “is not based on any direct or circumstantial evidence,” it is inadmissible conjecture, even if the safety measures the expert advocates for would have made the injury “less likely.”

    Case Details:

    Case Caption: Perciballi V. Mountain Creek Resort, Inc.
    Docket Number: 2:23cv948
    Court Name: United States District Court, New Jersey
    Order Date: January 29, 2026
  • Law Enforcement Expert’s Testimony on the Use of Pepper Spray Limited

    Law Enforcement Expert’s Testimony on the Use of Pepper Spray Limited

    Plaintiff LaBlanca Sibley’s excessive force claim against Officer Nicholas S. Riggall, arising from her arrest and detention, was based on Riggall’s use of pepper spray while she was seated in the patrol car.

    Sibley retained Mr. Jeronimo Rodriguez, an expert in law enforcement practices and use-of-force standards. Riggall moved to exclude Rodriguez’s opinions and testimony. Riggall challenged Rodriguez’s qualifications, methodology, and helpfulness to the trier of fact.

    Law Enforcement Expert Witness

    Jeronimo “Jerry” Rodriguez served as a police officer with the Los Angeles Police Department for over 25 years, including work in the Force Investigation Division.

    Since retiring as an active law enforcement officer in 2021, Rodriguez has reviewed and consulted on police and law enforcement practices as a private police consultant and audited agencies across the country and continued to train many agencies throughout the United States on police-related investigations.

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

    Discussion by the Court

    Qualifications

    Riggall pointed out that Rodriguez has not “studied, personally conducted research, or authored any literature on the use of force at issue in this case.”

    First, Riggall’s argument on qualifications, made conclusorily and without citations to any authority, is insufficiently developed for the Court to consider.

    Regardless, Rodriguez is qualified to testify as a police practices expert generally and about the use of force specifically. Rodriguez has served as a law enforcement officer for decades. For some of those years, he conducted investigations into officers’ uses of force. Since his retirement from law enforcement, Rodriguez has worked as a police practices expert in other cases and has consulted and provided trainings on various police practices subjects.

    Reliability

    Riggall argued that Rodriguez’s opinions “are not based on sufficient or accurate data” because, among other things, Rodriguez supposedly “draws his opinion on the force being excessive largely upon his belief that Sibley was falsely arrested and had not been resisting or involved in any crime.”

    The Court found Rodriguez’s methodology sufficiently reliable. Rodriguez described his methodology thusly: his “method for forming opinions relies on nearly forty years of experience as a police officer and trainer, collaboration with various instructors and police practices experts, and a comprehensive review of relevant evidence and materials, without making credibility judgments.”

    To the extent Rodriguez allegedly relied on Sibley’s version of events, such reliance did not merit exclusion of Rodriguez’s opinions.

    Assistance to the Trier of Fact

    Riggall argued that Rodriguez’s opinions will not be helpful to the jury because “Rodriguez never explains, beyond his own characterization of Plaintiff’s behavior as ‘tapping merely to get an officer’s attention to plead her innocence,’ the basis for not permitting a reasonable officer to interpret Plaintiff’s behavior as violent or aggressive.” He also argued that “Rodriguez offered legal opinions in the guise of interpreting the [Lakeland Police Department’s] policy on use of force.”

    However, the Court rejected this argument in part. Rodriguez’s opinions on the use of force and police practices will be helpful to the jury. Likewise, Rodriguez’s opinion on whether Riggall behaved in accordance with police procedures will be helpful to the jury.

    Although most of Rodriguez’s opinions and report do not contain legal conclusions, he did characterize the use of pepper spray as “excessive.” Calling the use of force “excessive” is a legal conclusion, given the jury is tasked with deciding whether the use of force was “excessive” and, therefore, unconstitutional. As a result, the Court will not allow Rodriguez to opine that the use of force was “excessive.” 

    Held

    The Court granted in part and denied in part the Defendant Nicholas S. Riggall’s motion to exclude the testimony of Plaintiff’s expert Jeronimo Rodriguez.

    Key Takeaway

    An expert is permitted to base his opinion on a particular version of disputed facts and the weight to be accorded to that opinion is for the jury.

    Case Details:

    Case Caption: Sibley V. City Of Lakeland
    Docket Number: 8:24cv2853
    Court Name: United States District Court, Florida Middle
    Order Date: January 27, 2026
  • Mechanical Engineering Expert’s Testimony about the Defective Lawnmower Excluded

    Mechanical Engineering Expert’s Testimony about the Defective Lawnmower Excluded

    Plaintiffs Jaron and Rachel George (“Plaintiffs”) brought this subrogation action against Defendants Stanley Black & Decker, Inc. (“SBD”) and MTD Products, Inc. (“MTD”) for strict liability, negligence, and breach of warranty claims based on a riding lawnmower fire resulting in substantial damage to Plaintiffs’ home.

    Defendants filed a motion in limine to exclude one of Plaintiff’s experts, Mr. Michael Zazula.

    Zazula opined during discovery that Plaintiffs’ lawnmower was in a defective condition because it incorporated a muffler cannister that had become distended and bowed over the years, and a gap had been created between the muffler and deflector, raising temperatures in the engine that resulted in the fire.

    Zazula did not point to any additional evidence of a defect at the time the lawnmower left the hands of Defendants but seems to suggest the distended muffler cannister itself was sufficient to prove a defect.

    Mechanical Engineering Expert Witness

    Michael J. Zazula specializes in applicable codes and standards for mechanical system components and the installation and maintenance of fire suppression systems, gas storage and delivery systems, boilers, HVAC equipment, and other fuel fired appliances.

    With over 20 years of forensic experience, he has conducted over 2,000 investigations.

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

    Discussion by the Court

    Zazula’s testing regarding fire causation is not reliable

    The basic premise of Zazula’s opinion is that the distention of the lawnmower’s muffler cannister was deformed, creating a 1/4 inch gap between it and the deflector, and this allowed hot exhaust gases to escape and caused higher temperatures and the ignition of combustible materials in the engine area.

    He proffers that this condition was a design or manufacturing defect of the lawnmower. Defendants argued that the expert testimony Zazula offered to support this premise is not admissible pursuant to Daubert. This Court agreed that Zazula’s report and opinion should not be considered.

    The methodology Zazula used for investigation and testing is Chapter 4 of the National Fire Protection Association (“NFPA”) 921, Guide for Fire and Explosion Investigations. The purpose of NFPA 921 “is to establish guidelines and recommendations for the safe and systemic investigation or analysis of fire and explosion incidents.”

    Zazula’s report explained that he performed his testing on a “used” Cub Cadet LTX 1040 lawnmower like the subject 1045 tractor lawnmower, and both contained the same parts. The temperature testing, which used thermal probes, at various parts of the used lawnmower on or near the muffler indicated temperatures ranging anywhere from approximately 400 degrees to the high of 726 degrees. Significantly, however, Zazula admitted that he did not conduct any testing on a lawnmower without a “distended muffler” and a 1/4 inch gap to try to prove or disprove whether the gap did, in fact, increase the temperatures in the engine area.

    Zazula could have fully tested his hypothesis, but he chose not to. Because he failed to conduct testing based on “the methods and procedures of science,” rather than mere “subjective belief,” the Court found that his opinion—that the muffler and the 1/4-inch gap (as a purported defect) caused the fire—was unreliable and inadmissible.

    Zazula’s expert testimony regarding fire causation does not “fit” the case or assist the trier of fact

    For similar reasons why Zazula’s opinion regarding the cause of the fire is not reliable, the Court held that Zazula’s opinion does not “fit” the case or assist the trier of fact. As explained before, it is not based on valid reasoning and reliable methodology. In addition, Zazula’s conclusion that the 1/4 inch gap caused the rise in temperatures is too speculative and subjective, considering he never conducted testing and compared temperatures in the engine of a lawnmower with a distended muffler and 1/4 inch gap and one without. This is especially so when two other experts who conducted the testing found no difference in the engine temperatures between the two.

    Even assuming Zazula is qualified to opine about the cause of the fire in the lawnmower, for the reasons explained above, his opinion is unreliable and unhelpful to the jury and is therefore precluded based on Daubert.

    Zazula is also not qualified as an expert to provide testimony regarding the alleged defective condition of the lawnmower, and the Court will exclude his opinion on that issue

    Zazula proffered that the lawnmower at issue was defective because the distended muffler and the 1/4 inch gap suggested a manufacturing defect or design defect. When asked what evidence supported the existence of a manufacturing defect, Zazula pointed solely to the distended muffler and gap, stating if he took the muffler into MTD, MTD would say “that’s not right.”

    Preliminarily, despite arguably being a fire causation expert, Zazula admitted he is not a design engineer regarding mufflers and exhaust systems, nor is he a warnings expert. Therefore, any of Zazula’s testimony regarding the lawnmower’s purported defects should not be considered. This includes his opinion without more that the distended muffler and 1/4 inch gap somehow was the result of the lawnmower’s defective condition, including a design defect, manufacturing defect, or failure to warn.

    Even if Zazula was qualified to testify about the “defective condition” of the lawnmower, the Court held that his testimony is not reliable. While his report stated, in part, the muffler deformation and gap between the muffler and deflector “exacerbates the ignition of foreseeable combustible material . . . . when the hot exhaust are not properly vented out the side of the deflector as designed [and] intended,” during his deposition he gave no evidence to support or further explain any design defect theory.

    The Court agreed that Zazula applied no methodology or procedures of science to support his opinion of a defect in the Cub Cabet at issue, and his opinion on any defect constitutes unreliable “subjective belief or unsupported speculation.”

    Finally, and for similar reasons, the testimony is not helpful to the jury. Here, the testimony is not sufficiently tied to any of the facts to aid the jury in resolving whether MTD’s lawnmower, in fact, suffered from a defective condition.

    Held

    The Court granted Defendants’ motion in limine to exclude the testimony of Plaintiffs’ expert Michael Zazula.

    Key Takeaway

    Zazula speculates what possibly caused the fire (in a case where there are several possible fire causes), without providing any specific evidence or testimony to support his opinion that the lawnmower was defective. As a result, the Court determined that any of Zazula’s testimony about any defective condition of the lawnmower should be excluded.

    Case Details:

    Case Caption: George V. Stanley Black & Decker, Inc.
    Docket Number: 2:24cv2035
    Court Name: United States District Court, Pennsylvania Eastern
    Order Date: January 26, 2026