Plaintiffs Joshua Cane Jellison and Jessica Marie Jellison (collectively “Plaintiffs”) alleged violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, against PHH Mortgage Corporation, the assignee and servicer of their mortgage loan.
Plaintiffs claimed that they entered into a COVID-19 forbearance, which caused them to accrue past due payments. According to Plaintiffs, PHH offered to resolve the past due payments by way of a Federal Housing Administration (“FHA”) COVID-19 Recovery Standalone Partial Claim Mortgage (“PCM”), through which the FHA would have purchased Plaintiffs’ outstanding debt and secured it with a second position mortgage. Plaintiffs contended the PCM would have paused any monthly payments until the mortgaged property was sold or the mortgage serviced by PHH was paid in full or refinanced. They alleged that PHH did not timely approve Plaintiffs’ entry into the PCM and instead threatened foreclosure. PHH believed it properly rejected Plaintiffs’ applications for the PCM because Plaintiffs did not meet all of the requirements. Plaintiffs were eventually approved for the PCM and did not lose their home through foreclosure.
Plaintiffs alleged generally that they incurred damages because their credit score was substantially reduced which severely affected their ability to run their business.
When Plaintiffs produced the report of their economic expert, Key Coleman, Defendant PHH Mortgage Corp. filed a motion in limine to exclude the testimony of Coleman.
Accounting Expert Witness
Arthur Key Foster Coleman, CPA, CFA is Executive Director and Founder of Litigation Economic & Forensic Consulting Group LLC. Coleman has more than 30 years of experience providing business and financial analysis. His focus is on forensic accounting, commercial disputes, damages and expert testimony.
Coleman serves full-time as Assistant Professor of Business at Rosemont College.
Relying entirely on Jellison’s statements regarding his existing and future business ventures, Coleman concluded that Plaintiffs suffered economic damages in the amount of $322,608 from the alleged loss of the opportunity to expand Plaintiffs’ business by purchasing additional equipment.
In its challenge to strike Coleman’s testimony at trial, PHH argued that his opinions are “inherently unreliable” because “his economic damages calculations are predicated entirely on speculative and unverified information provided to him by Mr. Jellison.”
More specifically, PHH argued that Coleman’s opinions are based upon Joshua’s unsupported and unverified statements regarding (1) his future business plans; (2) the market conditions implicated by those plans; and (3) the viability and potential profits of those “purported plans.” PHH stressed that Coleman bases his opinion solely on what Jellison told him about demand for expanding his business.
Analysis
This Court and others, however, have noted that an owner of a business who participates in day-to-day operations is qualified to offer an opinion as to lost profits based on the company’s actual operating history.
The historical business information supplied by Jellison and relied upon by Coleman is based upon Jellison’s personal knowledge acquired from the day-to-day operations of East Coast.
As such, Coleman was justified in relying upon his discussions with Jellison, in conjunction with tax returns and other documents which corroborated Jellison’s representations concerning lost profits relating to expansion of his business.
Moreover, because Coleman’s report relies upon data from tax returns for years 2021 through 2023, which reveals not only sales revenue but also depreciation and amortization of equipment needed for the addition of new crews in 2022 and 2023, the data is relevant to the facts of the case.
Here, the information provided by Joshua Jellison is corroborated by East Coast’s tax returns.
Other documents Coleman relied upon include those reflecting the dramatic drop in Jellison’s credit score; 2022 Depreciation and Amortization Report; Automobile Schedule for East Coast Equipment; Refusal for Small Business Line of Credit from PNC Bank; Delinquent Tax Reminder from Westmoreland County Tax Claim Bureau; 2019-2023 Tax Returns of Partnership Income with supporting documentation; and other documents.
Tax records include information relating to equipment costs when adding the second and third crews in 2022 and 2023. Coleman outlined the methodology he used based on information he received from Jellison and supported by this documentation. Thus, there is an adequate factual foundation for Coleman’s opinions.
This factual foundation establishes a clear “fit” connecting Plaintiffs’ alleged damages with Coleman’s opinion. The cases relied upon by PHH simply do not carry the day.
Held
The Court denied PHH Mortgage Corp.’s motion in limine to exclude the testimony of expert witness Key Coleman.
Key Takeaway
In its discretion and considering all facts and circumstances, the Court found by preponderance of the evidence that Coleman’s report was supported by “good grounds,” and relevant such that it will assist the trier of fact. Coleman relied upon business tax returns, which were prepared by an outside accountant, and reviewed by the IRS. Coleman was able to corroborate Joshua Jellison’s representations from these documents. PHH, however, may conduct a thorough and vigorous cross examination of Coleman and Joshua Jellison at trial concerning future business plans and the market conditions supporting those plans.
Case Details:
Case Caption:
Jellison V. PHH Mortgage Corporation
Docket Number:
2:23cv739
Court Name:
United States District Court, Pennsylvania Western
This action arises from allegations that Fluor Corporation, Inc., and Fluor Intercontinental, Inc. (collectively, “Fluor”), submitted false or misleading information to the United States Government in connection with performance and award-fee determinations under the Logistics Civil Augmentation Program IV (“LOGCAP IV”). Specifically, LOGCAP IV was a multiple-award, indefinite-delivery/indefinite-quantity contract administered by the United States Army to provide logistics and life-support services to U.S. and coalition forces in contingency environments, including Afghanistan.
Within this contractual framework, Fluor was awarded Task Order 0005 (“TO5”), a cost-plus-award-fee contract governing the provision of base operations and support services at numerous sites in Afghanistan. Under TO5, Fluor was required to provide a broad range of services, including food services, billeting, laundry, transportation, power generation, maintenance, and supply and property management, all in an austere and dynamic operational environment.
Importantly, as a cost-plus-award-fee contract, TO5 permitted Fluor to recover allowable costs and to earn an additional fee based on performance exceeding contractual requirements. Accordingly, award-fee determinations were made periodically and were intended to incentivize superior performance rather than mere compliance with minimum contractual standards.
To that end, award-fee determinations under TO5 were governed by an Award Fee Plan, which established evaluation criteria, performance periods, and scoring methodologies. Pursuant to this plan, performance was assessed by an Award Fee Evaluation Board (“AFEB”), composed of Government officials who reviewed Fluor’s performance across multiple functional areas, including cost control, technical performance, schedule, and program management.
Relators retained Colonel (Ret.) John Lyle to offer expert testimony concerning the LOGCAP IV award-fee process and Fluor’s performance under TO5.
Fluor Corporation, Inc., and Fluor Intercontinental, Inc. filed a motion to exclude the testimony of Relators’ expert John Lyle pursuant to Federal Rule of Evidence 702 and the Daubert standard.
Public Contracts Expert Witness
Colonel John Lyle retired from Government service after more than four decades in military and civilian contracting and acquisition roles, including senior leadership positions within the Air Force, the Army, and the Defense Contract Management Agency. His experience includes participation in, oversight of, and decision-making authority related to award fee contracts and award fee evaluation boards.
Lyle has substantial experience in government contracting and acquisition.
Fluor filed a motion to exclude Lyle’s testimony in whole or in part, arguing that portions of his proposed testimony exceeded the scope of his expertise, are not based on reliable principles or methods, or improperly speculate about Government decision-making, intent, or hypothetical award-fee outcomes, including opinions regarding award-fee denial or other contractual consequences.
A. Qualifications
Fluor first argued that Lyle is not qualified to offer several opinions contained in his expert report. Fluor did not dispute that Lyle has substantial experience in government contracting and acquisition. Instead, Fluor contended that his background did not qualify him to testify on certain specialized subject areas addressed in the report—particularly opinions concerning property and materials management, service order response and repair practices, and suspension or debarment consequences.
Lyle retired from Government service after more than forty years in military and civilian acquisition and contracting roles, including service as a warranted contracting officer, senior executive within the Defense Contract Management Agency, and participant in—and, at times, decision-maker for—award fee contracts and award fee boards. His experience included drafting award fee plans, serving on award fee evaluation boards, advising fee determining officials, and acting as a fee determining official himself. He has also worked with LOGCAP contracts in multiple capacities during his career. Based on this record, the Court found that Lyle is qualified to offer testimony explaining the structure and purpose of award-fee contracts, the mechanics of the award-fee process, and the general types of information that are ordinarily relevant to award-fee evaluations.
However, qualification under Rule 702 is not unlimited. Fluor’s challenges to Lyle’s qualifications concerned particular subject-matter opinions beyond the general award-fee framework—most notably opinions concerning property management, service order practices, and suspension/debarment—as well as opinions framed in terms of Fluor’s intent, honesty, or corporate culture.
Accordingly, the Court concluded that Lyle is qualified under Rule 702 to offer expert testimony on the structure and operation of award-fee contracts and the award-fee evaluation process, subject to limitations.
B. Scope of Permissible Expert Testimony
Although the Court has determined that Lyle is generally qualified to testify regarding award fee contracts and the award fee evaluation process, that determination does not resolve the admissibility of all opinions contained in his report.
Fluor argued that substantial portions of Lyle’s testimony exceeded the permissible scope of expert opinion. In particular, Fluor challenged opinions that: (1) address Fluor’s intent, honesty, or corporate culture; (2) speculate about how members of the Award Fee Evaluation Board (“AFEB”) or other Government officials would have acted had they been presented with different information; and (3) assert that Fluor would have received lower award fee scores or no award fee at all under hypothetical circumstances.
While the Court agreed that expert testimony explaining the structure and operation of award fee contracts, the role of award fee evaluation boards, and the general types of information ordinarily considered in award fee determinations may assist the jury, the Court also agreed with Fluor that Lyle’s testimony must be carefully circumscribed.
Accordingly, Lyle may not offer opinions that purport to determine Fluor’s intent, honesty, or state of mind, or that characterize Fluor’s conduct as fraudulent, deceptive, or unethical. Nor may he testify that particular AFEB members—or a hypothetical “prudent” or “reasonable” AFEB member—would have altered their scores, recommendations, or fee determinations had they been provided with additional or different information. Likewise, opinions asserting that Fluor “would have” lost award fees or received lower award fee ratings under hypothetical scenarios lack a sufficient factual foundation and reliable methodology and therefore exceeded the permissible scope of expert testimony under Rule 702.
C. Reliability and Methodology
Fluor argued that Lyle’s opinions are not grounded in any identifiable methodology beyond his personal views and hindsight assessment of the record. Fluor contended that Lyle did not rely on evidence from the actual award-fee decisionmakers or any materials reflecting how individual board members weighed or evaluated information, and instead reconstructed the award-fee process retrospectively based on his own assessment of the record.
The Court agreed that experience-based testimony may satisfy Rule 702 where the expert explains how that experience informs the analysis. Lyle reviewed the LOGCAP IV contract, the TO5 Award Fee Plan, award fee materials, and other contemporaneous records, and he drew upon his experience serving on award fee boards and acting as a fee determining official.
However, the Court also found that portions of Lyle’s analysis lacked the methodological rigor required by Rule 702. In several instances, Lyle moved from identifying information he believes to be significant to asserting conclusions about its impact on award fee determinations without articulating a reliable analytical bridge between the two.
This methodological deficiency is reinforced by Lyle’s own testimony acknowledging that award-fee determinations are inherently subjective and that, even after reviewing the record, he could only “guess” as to why individual board members assigned the scores they did.
The Court is mindful that the award fee process itself involves discretion and judgment. But Rule 702 does not permit an expert to replace that discretion with his own, particularly where the expert’s conclusions depend on speculation about hypothetical decision-making by others. Where Lyle’s opinions rest on generalized assertions untethered from a consistent application of the Award Fee Plan’s criteria, they do not reflect a reliable application of principles to the facts.
D. Summary of Excluded Opinion Testimony (Trial Limitations)
The following categories of opinion testimony by Lyle are excluded under Rule 702 based on the Court’s analysis above.
1. Opinions on Intent, Honesty, or State of Mind
Lyle may not offer opinions regarding Fluor’s intent, honesty, motive, credibility, or state of mind. This prohibition applies whether such opinions are stated expressly or implied through characterizations, narrative framing, or evaluative language describing Fluor’s conduct or alleged motivations. Testimony characterizing Fluor’s conduct as deceptive, misleading, unethical, or undertaken with an improper motive is not a proper subject of expert testimony and would invade the province of the jury.
2. Opinions Predicting Government or AFEB Decision-Making
Lyle may not offer opinions speculating about how specific Government officials, exercising discretionary authority, or members of the AFEB would have acted had they been presented with different or additional information. This prohibition includes testimony predicting how particular AFEB members, a hypothetical “prudent” or “reasonable” AFEB member, the Fee Determining Official, or other reviewing authorities would have exercised their discretion under hypothetical circumstances. Such opinions are inherently speculative and lack a reliable methodological foundation.
3. Opinions Predicting Award-Fee Outcomes Under Hypothetical Scenarios
Lyle may not testify that Fluor would have received lower award fee scores, forfeited award fees, or otherwise suffered adverse award fee outcomes under counterfactual scenarios. Because award fee determinations are the product of discretionary judgments by Government decisionmakers, opinions predicting altered outcomes necessarily depend on impermissible speculation about how those officials would have acted. While Lyle may explain the types of information that are generally relevant to award fee evaluations, he may not opine on the ultimate effect of such information on specific award fee determinations.
4. Legal Conclusions and Opinions Applying Legal Standards
Lyle may not offer legal conclusions or opinions concerning whether Fluor violated contractual, regulatory, or statutory obligations, including whether Fluor engaged in fraud, submitted false claims, or failed to comply with disclosure or reporting requirements. This prohibition applies both to explicit legal conclusions and to opinions that effectively instruct the jury how to apply legal standards to the facts. Such determinations are reserved for the jury and the Court and are not appropriate subjects for expert testimony.
5. Opinions Outside Lyle’s Qualifications -Property Management and Service Orders
Lyle may not offer opinions concerning the adequacy of Fluor’s property or materials management practices, service order response or repair time compliance, or the operation of specialized systems governing those functions. As explained above, Colonel Lyle lacks the specialized training or experience necessary to render expert opinions on these technical subject areas, and such testimony therefore falls outside the scope of his qualifications under Rule 702.
6. Opinions Predicting Collateral Administrative or Contractual Consequences
Lyle may not offer opinions predicting collateral consequences of Fluor’s alleged conduct, including suspension, debarment, or other administrative or contractual remedies. Such opinions are speculative, irrelevant to the issues the jury must decide, and fall outside the scope of permissible expert testimony under Rule 702.
Held
The Court granted in part and denied part the Defendants Fluor Corporation, Inc., and Fluor Intercontinental, Inc.’s motion to exclude the testimony of John Lyle.
Key Takeaway
As a threshold matter, expert testimony may not speculate about a party’s intent or credibility, nor may it opine on how particular decisionmakers would have acted under counterfactual circumstances. Accordingly, Lyle’s testimony is admissible only to the extent it provides general, experience-based explanatory context regarding the award-fee process and the relevance of performance information within that process. Conversely, testimony that crosses the line into speculation about intent, credibility, or hypothetical government decision-making is not permitted.
Please refer to the blogs previously published about this case:
This case arises from an employment dispute involving Defendant Gannett Co., Inc., doing business as USA Today. Plaintiff Taylor Bailey, a former Gannett employee, asserted claims against Gannett for breach of contract and sex discrimination under Title VII.
Bailey retained Chris S. Thrutchley provide expert opinions and testify regarding Plaintiff’s allegations and Defendant’s alleged conduct in this action.
Chris S. Thrutchley is an attorney with over thirty years experience in employment and labor law. His experience includes serving as the Director of Human Resources for one of Oklahoma’s largest employers, in which capacity he ensured employment policies, processes, and practices were legally compliant.
Additionally, from 2014 to 2016, Thrutchley served as Chief of the Oklahoma Attorney General’s Office of Civil Rights Enforcements, in which capacity he led a team of agents and attorneys in enforcing the Oklahoma Anti-Discrimination Act. Thrutchley currently serves as the employment law practice group leader for a large Oklahoma law firm, as well as an arbitrator for the American Arbitration Association for employment disputes arising in Oklahoma. Finally, Thrutchley has been certified by the HR Certification Institute as a “Senior Professional in Human Resources,” and by the Society for Human Resources Management as a “Senior Certified Professional.”
Gannett primarily contended that Thrutchley’s opinions constituted impermissible legal conclusions.
Legal Conclusions
First, in the “Legal Standards” section, Thrutchley purported to summarize the applicable “legal standards” and, in doing so, impermissibly sought to “define the law of the case.”
Further, throughout the report, Thrutchley applied the “legal and policy standards to the facts” in order to opine that certain conduct constituted, or raised an inference of, “sex-based harassment.” Likewise, Thrutchley opined that certain actions by Gannett interfered with Bailey’s employment and “would amount to a materially adverse employment action, an element of unlawful retaliation” or that “an inference of retaliatory motive” arises “capable of surviving summary judgment.” Thrutchley also opined that Gannett created a “hostile” or “toxic” work environment satisfying “the essential elements of a hostile work environment harassment claim.”
The Court held that Thrutchley’s opinions in this regard impermissibly stated a legal conclusion by applying the laws to the facts.
Thrutchley also opined that Gannett’s responses to the Texas Workforce Commission’s investigation into Bailey’s unemployment benefits claim were “demonstrably false.” An expert may not offer testimony regarding credibility. Given that it is the jury’s role to determine credibility, the minimal probative value of Thrutchley’s opinions in this regard is substantially outweighed by the danger of unfair prejudice. Thus, the opinions are also excluded pursuant to Federal Rule of Evidence 403.
Finally, Thrutchley offered opinions regarding Gannett’s internal policies and Defendant’s compliance with same. However, Gannett’s policies are not so complicated to require expert testimony.
Thrutchley also opined as to best practices upon receipt of a harassment, discrimination, or retaliation complaint, and that Gannett failed to follow same.
Such opinions are not prohibited legal conclusions and, further, may be helpful to the jury. Thus, the Court declined to exclude the opinions as impermissibly usurping this Court’s role to articulate the law and the jury’s duty to apply same.
Reliability
Gannett argued that Thrutchley’s opinions on best practices upon receipt of a harassment, discrimination, or retaliation complaint must nevertheless be excluded as the product of an unreliable methodology.
Having reviewed Thrutchley’s opinions, the Court concluded that it is more likely than not that his opinions in this regard reflect a reliable application of his knowledge and experience to the facts of the case.
Gannett next criticized Thrutchley’s opinions as lacking a sufficient foundation due to his reliance on hearsay and his alleged “adopting both the allegations of Plaintiff and her legal positions.”
First, with respect to Gannett’s criticism of Thrutchley’s reliance on hearsay, “Rule 703 allows an expert witness to base his testimony upon facts or data that are hearsay, provided that those facts or data are ‘of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.’”
The Court observed that Thrutchley did not merely parrot the out-of-court statements but, instead, utilized the statements to form his own independent opinions. Accordingly, Thrutchley’s reliance on hearsay is not improper.
Insofar as Gannett criticized Thrutchley as effectively adopting Bailey’s version of events, Thrutchley stated that he reviewed the Texas Workforce Commission Hearing Transcripts, the Amended Complaint and the EEOC Charge as well as various documents produced in discovery.
Based on the foregoing, the Court concluded that it is more likely than not that Thrutchley’s opinions are based on sufficient facts and data and the opinions are the product of a reliable application of principles and methods to the facts of the case.
Held
The Court granted in part and denied in part Gannett’s motion to exclude the testimony of Chris Thrutchley
Key Takeaway
An expert may not go so far as to usurp the exclusive function of the jury to weigh the evidence and determine credibility. Moreover, Gannett’s policies are not so complicated to require expert testimony. Rather, a lay juror with “normal experiences and qualifications” can review Gannett’s policies and determine whether Gannett complied with, or violated, those policies in response to Bailey’s complaint.
This case arises from Fluor’s performance under LOGCAP IV, Task Order 0005 (“TO5”), under which Fluor provided logistics and support services to U.S. military operations in Afghanistan. As a cost-reimbursable contract, TO5 was subject to oversight by multiple Government entities, including the Defense Contract Management Agency (“DCMA”) and the Defense Contract Audit Agency (“DCAA”).
As part of that oversight, DCMA conducted periodic Property Management System Analyses, or Property Management System Analysis (“PMSAs”), to assess whether Fluor’s property management system complied with applicable contractual and regulatory requirements. PMSAs evaluate the design and operation of a contractor’s system and may result in findings, corrective action requests, or system approval determinations. PMSAs do not evaluate individual claims for payment and are not designed to function as fraud-detection mechanisms.
In addition to Government oversight, Fluor conducted internal audits and assessments related to its property and materials management practices and communicated with Government officials regarding performance issues during TO5.
Relators alleged that Fluor failed to disclose material deficiencies in its property and materials management practices, misrepresented the adequacy of its systems, and improperly billed the Government under TO5.
Relators retained Dr. Dov S. Zakheim to offer expert testimony regarding Department of Defense financial oversight, acquisition practices, and the operation and limitations of Government review mechanisms in contingency environments.
Finance Expert Witness
Dr. Dov S. Zakheim has extensive experience with defense acquisition, financial management, and wartime contracting oversight.
Zakheim served as Under Secretary of Defense (Comptroller) and Chief Financial Officer from 2001 to 2004 and later served as the Department of Defense’s Civilian Coordinator for Afghanistan and as a commissioner on the Congressionally mandated Commission on Wartime Contracting in Iraq and Afghanistan.
The parties’ dispute concerns not Zakheim’s senior government service, but the extent to which that experience supplies specialized expertise for the particular subjects addressed in his proffered opinions.
Fluor argued that Zakheim lacked specialized knowledge and experience in the day-to-day administration of Government property requirements, including the conduct of PMSAs and DCMA property administration.
For purposes of Rule 702(a), the Court found that Zakheim’s education and experience at senior levels of the Department of Defense qualify him to provide experience-based testimony regarding (1) the structure and objectives of DoD oversight mechanisms in contingency environments, (2) the general roles of oversight entities within DoD, and (3) the practical constraints such entities may face in wartime settings. Zakheim also stated that he reviewed a substantial body of case materials, including DCMA PMSA reports, internal audits, corrective action plans, and contemporaneous correspondence.
Accordingly, the Court concluded that Zakheim satisfied Rule 702’s threshold “qualification” requirement for the limited purpose of offering experience-based testimony within the foregoing bounds.
B. Scope, Reliability, and Fit
1. Permissible Experience-Based Testimony
Fluor argued that Zakheim’s report is largely an advocacy narrative that does not employ a reliable methodology and did not assist the jury because jurors are capable of reading the documents for themselves.
The Court agreed that certain general, experience-based testimony is both reliable and helpful. Zakheim may testify, in general terms, regarding the purpose and practical limitations of Government oversight mechanisms in contingency environments—including that PMSAs are system-level reviews, may rely on sampling, are affected by resource and operational constraints, and are not designed as fraud-detection tools—and why the existence of PMSAs finding a system “adequate” does not, standing alone, foreclose factual disputes about what was occurring internally or what information was (or was not) disclosed.
At the same time, the Court emphasized the limits of this ruling. To the extent Zakheim’s testimony becomes a document-by-document narrative offered to argue what happened or to urge the jury to adopt Relators’ factual inferences, it is not considered admissible expert testimony.
2. Impermissible opinions regarding intent, credibility, and concealment
Fluor argued that Zakheim’s report and testimony go beyond permissible expert context and instead offer conclusions that, in substance, attribute dishonest intent, concealment, or deception to Fluor based on his interpretation of internal documents.
The Court agreed with Fluor and held that Zakheim may not testify that Fluor acted dishonestly or deceptively, engaged in a cover-up, concealed information, lacked integrity, or intentionally misled Government officials. Nor may he offer expert opinions framed as conclusions about Fluor’s motive, intent, credibility, or corporate ethics.
However, this limitation does not preclude Zakheim from identifying categories of information reflected in the record that, if credited by the jury, would have placed a contractor on notice of operational or compliance issues, or from explaining why such information would be significant to senior Department of Defense officials. The line is crossed, however, where the testimony moves from describing the existence or significance of information to directing the jury to draw conclusions about Fluor’s honesty, intent, or credibility.
3. Counterfactual Predictions of Government Action and Legal Conclusions
Fluor also challenged Zakheim’s opinions regarding what DCMA, DCAA, an Award Fee Evaluation Board, an Inspector General, or suspension and debarment officials would have done had they possessed additional information, including assertions that the Government would have disapproved Fluor’s business systems, imposed financial penalties, denied or clawed back award fees, or pursued suspension or debarment.
The Court found that Zakheim may, at a general level, describe the existence and purpose of Government oversight and response mechanisms, including that contractors are subject to system reviews and that corrective-action and enforcement processes exist. He may also explain why integrity, candor, and accurate reporting can matter to senior Government officials.
However, Zakheim may not opine that particular Government actors would have reached different outcomes in this case, exercised their discretion in a specific manner, or imposed particular contractual, regulatory, or financial consequences had they known additional information. Such testimony consists of speculative counterfactual predictions that depend on discretionary, multi-factor decision-making and is not supported by an articulated, reliable method for forecasting how the Government would have acted on this record.
For the same reasons, Zakheim may not offer legal conclusions regarding what the contract or regulations require or instruct the jury on what legal or contractual consequences should follow from a given set of facts. He may describe processes in general terms, but he may not apply those processes to declare the proper outcome in this case. This limitation applies regardless of whether such opinions are framed as what the Government “would have done,” “likely would have done,” or “typically does.” Testimony describing the existence of oversight mechanisms or the factors such mechanisms may consider is permissible; testimony that applies those processes to declare the proper or expected outcome in this case is not.
C. Rule 403
Fluor separately sought to exclude, under Rule 403, narrative testimony concerning violent incidents in Afghanistan, including references to a suicide bombing and related loss of life. Fluor argued that such testimony had minimal probative value to the claims and defenses being tried, would invite a collateral mini-trial over a tragic event, and created a substantial risk of unfair prejudice and jury distraction.
The Court agreed that detailed testimony about violent events—particularly where the proffer would invite the jury to attribute casualties to Fluor or to litigate the causes and responsibility for the attack—poses a substantial risk of inflaming the jury and diverting attention from the elements the jury must decide in this False Claims Act case.
Accordingly, Zakheim may testify in general terms regarding the operational challenges of contingency environments to the extent that such context informs the limitations of oversight mechanisms. But he may not offer detailed or emotionally charged accounts of violent incidents, and he may not opine—directly or by implication—that Fluor’s alleged property-management practices “caused” such incidents or “cost lives.”
D. Summary of Rulings and Trial Limitations
The Court summarizes its rulings regarding Zakheim’s testimony as follows:
1.Permitted Testimony
Zakheim may offer experience-based testimony, grounded in his senior Department of Defense service, concerning:
the structure, purpose, and general limitations of Government oversight mechanisms in contingency environments, including PMSAs;
the effect of wartime conditions, resource constraints, and sampling practices on what such oversight mechanisms are likely to detect; and
why the existence of PMSAs or other Government reviews finding a system “adequate” does not, standing alone, resolve factual disputes concerning internal deficiencies or disclosures.
2. Excluded testimony—intent, credibility, and ethics
Zakheim may not testify that Fluor acted dishonestly, deceptively, or with intent to mislead; that it “hid” or “covered up” information; that it lacked integrity; or that it engaged in fraud. He may not offer expert opinions regarding Fluor’s state of mind, motive, credibility, or corporate ethics, whether explicitly or through loaded characterizations or rhetorical framing.
3.Excluded testimony—counterfactual Government action and consequences
Zakheim may not state that DCMA, DCAA, an Award Fee Evaluation Board, an Inspector General, or suspension/debarment officials would have taken specific actions had they known additional information, including that they would have altered PMSA results, disapproved Fluor’s systems, imposed particular financial consequences, denied or clawed back award fees, or suspended or debarred Fluor. Such counterfactual predictions and legal conclusions are speculative and impermissible. These exclusions apply to the substance of the opinions, not merely their phrasing. Testimony that, in effect, predicts or declares Government decision-making outcomes is inadmissible regardless of whether it is presented as a general tendency, hypothetical scenario, or illustrative example.
4. Limit on narrative fact summaries
Zakheim may not present a document-by-document factual narrative or select and characterize record evidence in a manner that effectively argues Relators’ version of events under the guise of expert testimony. To the extent the underlying documents are relevant, they may be presented through fact witnesses or admitted into evidence directly. Expert testimony must add specialized context rather than merely repackage facts for advocacy.
5.Rule 403 Limitations
Zakheim may testify generally about the challenges of operating in contingency environments, so far as that context bears on oversight limitations. He may not offer detailed, graphic, or emotionally charged testimony regarding violent incidents, including suicide bombings, nor may he state that Fluor’s alleged conduct caused such incidents or resulted in loss of life.
6.Preservation of Objections and Trial Management
The Court will not permit excluded opinions to be introduced through incremental questioning or cumulative context. That said, these rulings do not foreclose contemporaneous objections at trial where testimony exceeds the bounds set forth above. The Court will address any close questions outside the presence of the jury as necessary to ensure compliance with Rules 702 and 403.
Held
The Court granted in part and denied in part the Defendants Fluor Corporation, Inc., and Fluor Intercontinental, Inc.’s motion to exclude the testimony of Relators’ expert Dov S. Zakheim .
Key Takeaway
Rule 702 does not permit expert testimony that directly, or in practical effect, instructs the jury to conclude that a party acted dishonestly, deceptively, or with intent to mislead, or that it concealed information from the Government.
Such determinations depend on credibility and intent assessments reserved for the jury and are not the product of a reliable expert application of specialized knowledge.
Please refer to the blog previously published about this case:
This is a False Claims Act action arising from Defendants Fluor Corporation, Inc. and Fluor Intercontinental, Inc.’s (“Fluor”) performance of logistics and life-support services for the United States military in Afghanistan under the Logistics Civil Augmentation Program IV (“LOGCAP IV”) contract and Task Order 0005 (“TO5”). Relators alleged, among other things, that Fluor knowingly submitted false claims and false statements to the Government in connection with award fee determinations and property-management obligations, and that Fluor retaliated against certain employees who raised concerns regarding those practices.
In support of their claims, Relators designated Dr. Gary M. Gaukler as an expert witness. According to his report, Dr. Gaukler analyzed data extracted from Fluor’s Maximo property-management system and related materials to identify patterns reflected in recorded response times, repair times, and other system entries. Relators contended that this analysis will assist the jury in evaluating Fluor’s representations regarding its performance and internal controls.
Fluor filed a motion to exclude or limit discrete portions of Gaukler’s proposed testimony. Specifically, Fluor challenged opinions and characterizations that it contended exceeded Gaukler’s expertise, lacked a reliable methodological foundation, or impermissibly opined on contractual compliance, fraudulent intent, and the interpretation of documents and communications.
Logistics Expert Witness
Dr. Gary Michael Gaukler is a tenured Full Professor at the Drucker School of Management, Claremont Graduate University, located in Claremont, California. He was previously a Professor in the Department of Industrial and Systems Engineering at TexasA&M University. His academic work—both in research and teaching—centers on the application of analytics to logistics, supply chain management, and inventory management, including optimal inventory control policies, quality assurance and inspection strategies, and logistics. He regularly teaches courses in operations management, supply chain management, logistics, procurement, statistics, business analytics, and predictive analytics.
Fluor did not meaningfully dispute that Gaukler is qualified to analyze large datasets, apply statistical and analytical techniques, and identify patterns within structured data such as Fluor’s Maximo system.
However, certain opinions offered by Gaukler venture into areas—such as government-contract compliance, fraud, and intent—for which he lacks relevant expertise. Gaukler’s training and experience are in data analytics and quantitative analysis, not in interpreting government contracts, assessing contractual compliance, or evaluating fraudulent intent. Accordingly, the Court held that any testimony that crosses into those subjects would exceed the scope of his qualifications.
B. Maximo Queries andDescriptive Analytics
Although Fluor stated that it did not challenge the admissibility of Gaukler’s underlying Maximo queries, data extraction, or descriptive statistics, its motion advances a narrower conception of permissible expert testimony—one under which Gaukler would be limited to presenting raw query outputs while being precluded from identifying or highlighting patterns, trends, or anomalies reflected in the data. In Fluor’s view, any step beyond tabulation risks impermissible inference or speculation.
It is the Court’s duty to distinguish between reliable expert assistance and testimony that risks misleading the jury.
Identifying what the data show reflects technical expertise in analytics, while offering explanations for why the data look as they do or what they ultimately signify in operational or legal terms may require additional subject-matter expertise or rest on assumptions not grounded in a reliable methodology.
As a result, the Court decided that Gaukler may testify regarding his Maximo queries, data extraction, descriptive statistics, and the identification of objectively observable patterns reflected in the data- but he may not offer explanations for the causes or implications of those patterns beyond what can be reliably inferred from his analytical methods.
C. Use of “Compliance” Terminology
Fluor challenged Gaukler’s repeated use of terms such as “compliance” or “non-compliance,” arguing that such language constitutes an impermissible contractual or legal conclusion.
The Court held that characterizing Fluor’s performance as “contractually compliant” or “non-compliant” risks conveying an authoritative conclusion about contractual obligations—particularly in the context of a government contract and False Claims Act claims—where the determination of compliance turns on contract interpretation and legal standards beyond Gaukler’s expertise.
At the same time, the underlying data and analytical results can be presented without using legally freighted labels. Doing so preserves the testimony’s probative value while avoiding the risk of misleading the jury.
Therefore, Gaukler may describe what the Maximo data reflect in factual and analytical terms, including measured response times and recorded intervals—but he may not characterize those results as establishing contractual compliance or non-compliance.
D. Speculative Inferences and Fraud-Related Opinions
Fluor next sought to exclude opinions that went beyond describing data patterns and instead speculate about why those patterns exist, particularly where such explanations imply misconduct or fraud. Fluor pointed to deposition testimony in which Gaukler disclaims expertise in fraud investigation, operational feasibility, and the real-world execution of logistics operations.
Gaukler is qualified to identify patterns reflected in the Maximo data. But where he offered explanations that imply fraud or misconduct, he simultaneously disclaims the expertise necessary to assess whether those explanations are feasible or supported by operational realities. In those circumstances, the proffered opinions rest not on reliable methodology, but on speculation. Allowing such testimony would risk presenting conjecture under the imprimatur of expertise and would not assist the jury within the meaning of Rule 702(a).
The Court decided that Gaukler may testify to inferences that are analytically supported by his data analysis, but he may not offer speculative explanations, insinuations of fraud or misconduct, or opinions regarding intent or wrongdoing.
E. Document and Email Narration
Fluor challenged portions of Gaukler’s proposed testimony in which he summarized or interpreted documents, emails, or communications, contending that such testimony amounts to narrative advocacy and places an expert gloss on materials the jury can read and evaluate for itself.
Fluor’s objection is directed not at Gaukler’s reliance on such materials as inputs to his analysis, but at testimony—reflected in his report and deposition—in which he recounts or interprets those materials without applying specialized expertise.
Rule 703 permits experts to base opinions on facts or data that may themselves be inadmissible if experts in the field would reasonably rely on them. It does not authorize an expert to disclose, narrate, or interpret those materials to the jury where doing so does not depend on specialized knowledge and merely places the expert’s subjective gloss on evidence the jury is equally capable of evaluating.
Nor may an expert serve as a conduit for hearsay or advocacy; the probative value of expert testimony must derive from the application of specialized expertise, not from summarizing or characterizing documents or communications.
Accordingly, while Gaukler may identify categories of materials he reviewed and explain how those materials informed his methodological decisions, he may not narrate, interpret, or opine on the meaning of documents or communications where such testimony does not depend on specialized expertise and would not assist the jury within the meaning of Rule 702(a).
The Court decided that Gaukler may identify the types of materials he reviewed and explain their relevance to his analytical methodology- but he may not narrate, interpret, or opine on the meaning of documents or communications where such interpretation does not require specialized expertise.
F. Summary of Rulings
In sum, the Court held that Gaukler’s testimony is admissible to the extent it is confined to data analytics and methodologically grounded inferences, and excluded to the extent it ventures into contractual conclusions, fraud-related speculation, or narrative interpretation of documents.
Held
The Court granted in part and denied in part the Defendants Fluor Corporation, Inc. and Fluor Intercontinental, Inc.’s motion to exclude certain opinions of Relators’ expert, Dr. Gary Gaukler.
Key Takeaway
Expert testimony explaining how data were selected, queried, summarized, and analyzed—and identifying objectively observable patterns reflected in those data—rests on specialized knowledge and reliable analytical methods. Such testimony assists the jury in understanding large and complex datasets generated by Fluor’s own systems and satisfies Rule 702(a)’s helpfulness requirement.
At the same time, Rule 702 draws a clear distinction between identifying what the data show and offering explanations for why the data look as they do or what they ultimately signify in operational or legal terms. The former reflects technical expertise in analytics; the latter may require additional subject-matter expertise or rest on assumptions not grounded in a reliable methodology.
Case Details:
Case Caption:
United States ex rel. Charles R. Shepherd & Danny V. Rude
Docket Number:
6:13cv2428
Court Name:
United States District Court for the District of South Carolina, Greenville Division
Ibrahim Qasim bought a sixty-four ounce container of EcoLogic Bed Bug Killer 2 (“Product”) from Home Depot on August 26, 2019. On September 2, 2019, at 9:00 a.m., Ibrahim sprayed all sixty-four ounces of the product into the living room of the apartment he and Nouh Qasim shared. At 5:00 p.m., as Nouh turned on the gas stove in the kitchen to make coffee, a fireball erupted, severely burning both Plaintiffs. The Newark Fire Department found sodium azide in the bathtub drain, a highly toxic chemical compound “used to make explosives and methamphetamine.” First responders also found a gasoline can in the apartment.
Plaintiffs sued Defendants Spectrum Brands Holdings, Inc. (“Spectrum”), United Industries Corporation (“United”) and Liquid Fence Company for strict products liability and violations of the Consumer Fraud Act.
Plaintiffs retained Dr. James W. Pugh, Ph.D. as an expert, who summarized his analysis in a two-page report (“Pugh Report”). Pugh concluded, to a reasonable degree of scientific, engineering, ergonomic, and human factors certainty, that the defective labeling of the product was the proximate cause of the accident.
Defendants argued that Pugh’s expert report should be excluded because it concluded the warning label on the product caused the fire without “any mention of scientific methodologies, mathematical calculations, or independent testing and analysis.”
Materials Science Expert Witness
Dr. James Whitworth Pugh, Ph.D. earned an undergraduate degree in metallurgy and materials science and a Ph.D. in biomedical engineering from the Massachusetts Institute of Technology (“MIT”).
While a graduate student at MIT, Pugh worked at the U.S. Army Materials and Mechanics Research Lab. After graduating, Pugh taught biomechanics, engineering, and materials sciences at several institutions, including New York University.
Pugh opined about the Product’s warning label and the cause of the fire. Pugh has extensive experience analyzing “products, warnings, and instructions.” So, he has more knowledge than the average layperson about the adequacy of warnings. Pugh, therefore, is qualified to opine about the Product’s warning label.
Pugh, however, is not qualified to testify about the cause of the fire. To be sure, Pugh testified he had “done a lot of thermal injuries analysis” and was “exposed to a large amount of fire and thermal events” in his work at MIT. But analyzing burns on the human body or seeing fires in a ballistics laboratory are fundamentally different than investigating the origin of a fire.
Pugh has never been a fire investigator, been a member of a professional fire investigation organization, or published an article on the causes of fires. Pugh has no training in recognizing burn patterns. And the record did not reflect that he has any practical experience investigating the origin of a fire. Instead, Pugh’s sole experience with fire causation comes from owning a sailboat with an isopropyl alcohol stove, and taking courses at MIT covering isopropyl alcohol fires. But the fact that Pugh knows what an alcohol fire looks like in a stove on a boat does not qualify him to give an expert opinion that this fire was an alcohol fire, or the Product caused it.
While Pugh is qualified to testify about warning labels, the Court held that he is not qualified to testify about the cause of the fire.
B. Reliability
i. Fire Causation
Pugh’s opinion about the cause of the fire lacked good grounds because it is based entirely on comparing pictures of the apartment to his experience using an alcohol stove on a boat.
Pugh did not test the Product or account for the distance between where Ibrahim sprayed the Product and the site of the fire, the time between when Ibrahim sprayed the Product and the fire, or the presence of other flammable substances in the apartment. He “used little, if any, methodology beyond his own intuition.”
The Court concluded that Pugh had no reliable basis to conclude the Product’s isopropyl alcohol content caused the fire.
ii. Failure to Warn
Pugh’s conclusions about the product’s warning label lacked signs of reliability. Here, the product had a flammability warning. Examining a fourteen-ounce spray can of the product, Pugh concluded the text was too small. However, it did not appear that he examined the warning on the much larger sixty-four-ounce container of the product Ibrahim used on the day of the accident.
Pugh did not consider federal pesticide labeling standards, industry practice, the Product’s accident history, scientific testing, whether his proposed open flame pictogram was feasible, or whether it would have prevented the accident. Nor did he provide any visual aids to explain his conclusion that the Product had an inadequate warning and that his proposed warning was adequate. At most, Pugh asserted that the product’s warning did not comply with two standards from the American National Standards Institute (“ANSI”) and a warning handbook from 2006.
According to the Court, neither Pugh’s opinion that the product caused the fire, nor his opinion that the flammability warning on the product was inadequate, are reliable.
C. Fit
At the Daubert hearing, Pugh testified that it was “unlikely” the Product caused the fire if Ibrahim’s timeline were true. Pugh added he “disagreed with the characterization of the time that Ibrahim applied it in view of what [Nouh] said.” But Pugh did not explain why he disagreed with Ibrahim’s account and believed Nouh’s. Nor did he address the issue in his report. Instead, he simply concluded the fire started when Nouh said it did. That is of no assistance to the factfinder.
Likewise, although Ibrahim testified “he never read the warnings or instructions on the product” before using it, Pugh concluded that an open flame pictogram would have prevented the fire. Pugh entirely failed to explain why a Plaintiff who did not read any of the warnings on the product would nonetheless read a different warning on the product. Here, too, the lack of a why or wherefore did not assist the factfinder. The Court held that Pugh’s opinions, accordingly, did not fit the proceedings.
Held
The Court granted the Defendants’ motion to exclude the testimony of Plaintiffs’ expert Dr. James Pugh.
Key Takeaway
An expert’s testimony ‘fits’ the proceedings, if it will help the trier of fact to understand the evidence or to determine a fact in issue. Pugh’s analysis is bereft of a why or wherefore.
Because Pugh is not qualified to render expert opinions on fire causation, his conclusions on fire causation and adequate warnings are unreliable, and his analysis does not fit the proceedings, the Court excluded his testimony.
This is an antitrust action filed by Plaintiffs CareFirst of Maryland, Inc., Group Hospitalization and Medical Services Inc., and CareFirst Bluechoice Inc. (collectively, “CareFirst”) alleging that Defendants Johnson & Johnson and Janssen Biotech, Inc. (collectively, “J&J”) used monopoly power to unlawfully delay the introduction of biosimilar competitors for their drug ustekinumab (sold under the brand name “Stelara”).
J&J filed a motion to exclude the testimony of Plaintiffs’ expert Dr. Aaron S. Kesselheim. J&J sought to exclude both of Kesselheim’s opinions on the grounds that they are unreliable or unhelpful to the jury.
Pharmacoeconomics Expert Witness
Aaron Seth Kesselheim, M.D., J.D., M.P.H., is a Professor of Medicine at Harvard Medical School and a faculty member in the Division of Pharmacoepidemiology and Pharmacoeconomics in the Department of Medicine at Brigham and Women’s Hospital.
He is also a Visiting Professor of Law at Yale Law School, and has practiced internal medicine at Brigham and Women’s Hospital for over 20 years. Kesselheim holds an M.D. and J.D. from the University of Pennsylvania as well as an M.P.H. from Harvard. Kesselheim assisted in founding the Center for Bioethics at Harvard Medical School and has published over seven hundred scholarly articles.
Kesselheim’s expert report provides background information and two opinions related to the pricing of pharmaceutical drugs. J&J sought to exclude both opinions on reliability and relevancy grounds as well as background information Kesselheim provided regarding certain “life cycle management” strategies employed in the pharmaceutical industry.
A. Kesselheim’s First Opinion
Kesselheim’s first opinion discussed the historical impacts of “biosimilar competition on the market for biologic drugs” since the passage of the Biologics Price Competition and Innovation Act (BPCIA). Specifically, Kesselheim opined that, in the fifteen years since BPCIA’s passage, “[b]iosimilar competition has an impact on pricing.” Kesselheim bases his first opinion “largely” on two studies he co-authored in 2021 and 2024, which examined two non-Stelara biologies and studied “how market structures altered by the BPCIA affected prices for biologies subject to biosimilar competition.”
J&J argued that Kesselheim’s first opinion regarding biosimilar competition generally should be excluded because it merely repeats findings from his two studies on other biologic drugs and makes no effort to reliably extrapolate those findings to Stelara.
The Court held that Kesselheim’s first opinion is grounded in fifteen years of research and peer-reviewed studies examining how biological drug markets respond to biosimilar competition, and Kesselheim clearly applies those industry patterns to a hypothetical but-for scenario. J&J argued that Kesselheim should have performed an analysis beyond repeating the findings of his studies or ran “new regression models” more specific to Stelara. However, Kesselheim’s role is to explain market behavior based on consistent historical experience and thus is not required to have performed new quantitative analysis. Accordingly, any alleged gaps in Kesselheim’s analysis go to weight and can be addressed on cross-examination.
Additionally, Kesselheim’s first opinion is helpful for the jury because it bears directly on what would have happened to Stelara prices absent the alleged anticompetitive conduct. Kesselheim’s first opinion situates Stelara within the broader context of a competitive biologies market, including comparator biologies such as Humira and J&J’s own Remicade. Thus, Kesselheim provided the jury with a framework for understanding how a competitive biologies market typically functions.
B. Kesselheim’s Second Opinion
Kesselheim’s second opinion discussed the likely “effects of biosimilar competition on the ustekinumab market if one or more biosimilars launched in or around September 25, 2023.” Kesselheim opined that if one or more biosimilars launched at that time, “there would have been a meaningful lowering of spending related to this drug by all different categories of payors in the U.S.”
J&J sought to exclude Kesselheim’s second opinion on the grounds that it is unreliable and unhelpful speculation. J&J argued that Kesselheim utilized no specific methodology or analysis to draw his conclusions. According to J&J, Kesselheim’s conclusions rest on analogies to other drugs such as Humira, ignore available evidence from actual biosimilar entry, and amount to impermissible ipse dixit.
Kesselheim’s conclusion that earlier biosimilar entry would have led to a meaningful reduction in Stelara’s net price is grounded in reliable, peer-reviewed research as well as consistent historical experience across biologic drug markets. Kesselheim’s conclusions are not merely speculation, as J&J contended. Rather, in his report, Kesselheim synthesized data from multiple biosimilar launches and explained why Stelara shares salient market characteristics with comparator drugs such as Humira. This is not only reliable expert testimony but also relevant context for the jury to understand how biosimilar entry affects biologic pricing.
Furthermore, the Court is not persuaded by J&J’s argument that Kesselheim’s opinion is faulty because he did not specifically examine the data following the entry of a biosimilar drug to ustekinumab in January 2025. Given the timing of the events in this litigation, such data simply was not available when Kesselheim prepared his report in March 2025.
C. Kesselheim’s Discussion of Life Cycle Management Strategies
Kesselheim opined on how “life cycle management” strategies in the pharmaceutical industry are an important factor affecting biosimilar availability. Kesselheim opined that “life cycle management” strategies is a “broad term” describing “drug manufacturers’ strategic efforts to extend their drugs’ market exclusivities, prolong commercial viability, or strengthen their competitive positions in a market.” J&J sought to exclude these observations on the grounds that they are “not grounded in the facts of this case” and are unhelpful to a jury. J&J argued that these “generalized musings” are untethered to either of CareFirst’s theories of liability in this case and thus would risk misleading the jury by introducing irrelevant industry practices that CareFirst does not allege are unlawful.
The Court held that Kesselheim appropriately draws on his specialized knowledge of industry practices and incentives to provide context for why J&J’s alleged conduct fits within established industry patterns. J&J’s objections that Kesselheim “was not even aware of the biologic manufacturing patents at issue” and “did not review any of the settlements that J&J entered with biosimilar manufacturers” went to the weight, not admissibility.
Held
The Court denied J&J’s motion to exclude the testimony of Dr. Aaron Kesselheim.
Key Takeaway
Kesselheim’s observations on pharmaceutical life cycle management are admissible as reliable and relevant testimony. Kesselheim’s opinions on this issue are grounded in specific academic research examining how branded drug manufacturers use secondary patents and related strategies to extend market exclusivity and delay biosimilar competition. This type of experiential expert testimony does not need to rest on quantitative analysis specific to Stelara to be reliable.
Please refer to the blog previously published about this case:
Plaintiff Casey A. Drake sued the Defendants Crete Carrier Corporation and Reuben Robert Shaffer for personal injuries arising from a vehicle collision. Drake was riding in a car driven by his niece, Erica Diehl. Shaffer was driving a tractor-trailer. As the two drivers passed a wrecked vehicle, they collided.
Drake retained Robert Kelly and Jack Leifer as experts to testify that Shaffer caused the collision. The Defendants filed motions to exclude their testimony.
Transportation Expert Witness
Robert P. Kelly was a police officer for ten years. During that time, he investigated more than 300 collisions involving commercial vehicles. He has certifications specific to traffic enforcement and is certified as a driving instructor for commercial vehicles.
Jack Leifer is a mechanical engineer who has taught university courses relating to dynamics, kinematics, and statics and has published multiple works related to the relationships between impacts and force.
He is an affiliate of the Society of Accident Reconstructionists and a member of the Texas Association of Accident Reconstruction Specialists. Leifer is responsible for numerous publications and presentations about topics related to accident reconstruction, and he has participated in continuing education courses dedicated to accident reconstruction.
The Defendants argued that Kelly is not qualified to opine on the cause of the collision because he is not an accident reconstructionist.
A police officer may testify about the cause of a traffic accident if he has sufficient skill and knowledge. As a result, the Court held that Kelly has sufficient experience working with commercial vehicles and investigating collisions involving them to opine on the cause of the collision at issue here.
B. Reliability
The Defendants also argued that Kelly’s testimony would be unreliable because he based his opinion solely on two photographs and did not visit the accident scene, conduct any interviews, or take any measurements.
Kelly based that opinion on his review of footage recorded by a responding police officer’s body camera, two frames of which are reproduced in his report. Those frames appear to show the hood and front tires of the disabled vehicle extending into the right lane over the dashed white line that divides the road. Kelly also reviewed the responding officer’s crash report, which repeated Diehl’s claim that Shaffer moved from the right lane into the right-hand shoulder and struck her car.
Whether a vehicle has space to maneuver is the kind of determination an expert can make based on his review of photographs and videos alone. By reviewing the images available here, Kelly could see the amount of unobstructed space in the right lane of traffic and, applying his knowledge, determine whether or not a tractor-trailer would be able to safely traverse the lane without moving into the shoulder.
C. Irrelevance of Crete’s conduct
Kelly also stated his opinions about Crete’s hiring of Shaffer, Shaffer’s qualifications, whether Crete kept adequate records, and whether Shaffer was adequately trained. The Defendants challenged those opinions as unreliable and as irrelevant to the central issue of causation. Drake did not assert a direct negligence claim against Crete. He sought to hold Crete vicariously liable for Shaffer’s alleged negligence at the time of the collision.
Whether Shaffer was qualified, whether Crete kept adequate records, and whether Shaffer was adequately trained do not bear on whether Shaffer was negligent at that time. Evidence that has no tendency to make a material fact more or less probable is not admissible. As such, the Court excluded Kelly’s opinions about hiring, qualifications, record keeping, and training.
Jack Leifer
A. Qualification
The Defendants argued that Leifer, like Kelly, is not qualified to opine on the cause of the collision because he is not an accident reconstructionist.
His report discusses, based on the damage to Diehl’s car and the conditions of the roadway, the forces that likely applied to the vehicles and the relative speeds that would probably have generated those forces.
Leifer’s observations are based in physics, and his CV reflects substantial knowledge and experience in the relevant scientific fields. The Court held that he is well-qualified to opine and reasonably apply his observations to the facts of this case.
B. Reliability
The Defendants made three arguments that Leifer’s methods and data are unreliable. First, they asserted that Leifer relied on a scientific study that is old and distinguishable from the facts of this case. Second, they argued that, during his deposition, Leifer could not “state with certainty” how the collision occurred. Finally, they noted that Leifer could also not initially state at his deposition what source supported his opinion that lanes of traffic are generally 11–12 feet wide.
Analysis
As to the first argument, both the study Leifer relies on and his own opinion are grounded in physics. The laws of physics operated the same way in 2002, when the challenged study was published, as they did when the collision at issue here occurred.
As to the second argument, Leifer testified that the collision might have occurred in one of three ways: Shaffer’s tractor-trailer was moving to the right, Diehl’s car was straddling the fog line, or Diehl was moving to the left. Although Leifer conceded that any of those three scenarios was possible, he testified that it is most likely that Shaffer was moving to the right at the time of the collision. That opinion was based on his opinions that Shaffer’s vehicle was likely moving faster than Diehl’s and that it would have been unsafe for Shaffer to drive straight through the right lane without moving to the shoulder.
As to the Defendants’ final argument, Leifer’s inability to recite, on the spot during his deposition, a source stating that traffic lanes are generally 11–12 feet wide did not impugn his report’s validity. Leifer testified that he used the standard width of a traffic lane to calculate an approximate location of the collision. Although he also testified that traffic lanes are generally 11–12 feet wide, that figure does not appear in his report.
It would be unreasonable to deem his testimony unreliable just because he had not memorized the citation for a figure, particularly one that did not appear in his report.
Held
The Court granted in part and denied in part the motion to exclude Robert Kelly’s testimony and denied the motion to exclude Jack Leifer’s testimony.
Key Takeaway
As with an expert’s qualifications, whether an expert’s methodology is reliable depends on the particular circumstances of each case. Reviewing photographs, especially where, as here, that review is bolstered by other materials, is not necessarily an unreliable method. In appropriate circumstances, photographs can provide sufficient information for an expert to apply his knowledge and experience and form an opinion.
This is a personal injury case. Plaintiff Amy Manzanares was allegedly injured by a wooden panel in Defendant El Monte Rents, Inc.’s recreational vehicle (“RV”) in November 2023.
Defendant filed a motion to exclude Plaintiffs’ expert, Mark Goodson, P.E.
Engineering Expert Witness
Mark E. Goodson, P.E. is a consulting engineer licensed in electrical and mechanical engineering. He holds a Bachelor of Science in Electrical Engineering from Texas A&M University. He studied forensics at UT Southwestern for three years and has formal training in fire investigation and fire protection. Goodson has several publications in the field of forensic science. In 1984, he opened his consulting practice.
Plaintiffs included Goodson in their expert disclosures. His expert designation lists three general areas of testimony. First, Plaintiffs sought to have Goodson testify about the “appearance of the lumber that was in place in the RV . . . at the time the accident occurred and whether or not the lumber was original to the RV or changed out from what was originally in the RV.” Second, Plaintiffs sought to offer testimony about “inspections [Goodson] performed on the actual RV involved in the accident and similar modeled RV inspected and the appearance and status of their paneling.” Third, Goodson’s designation provided that he will testify about the quality of the repairs performed on Defendant’s RV and whether the repairs were appropriate and safe. That includes repairs “that were in place in the most recent inspection in 2025”—after the accident occurred.
Defendant did not question Goodson’s qualifications but challenged his testimony on other grounds. In Defendant’s view, Goodson’s testimony is irrelevant, unreliable, and unhelpful to the jury.
Defendant argued that, despite the list of topics in Plaintiffs’ expert designations, Goodson only has one conclusion: that the wooden panel was not installed or attached properly. That conclusion, according to Defendant, is based solely on the fact that the wooden panel fell.
Analysis
Plaintiffs did not identify a methodology for the Court to evaluate
Plaintiffs contended that Goodson’s opinions are based on his inspection of the RV, photographs, and his expertise in failure analysis. But Goodson testified that he did not employ a failure analysis, and Plaintiffs did not identify any expert materials showing otherwise.
The sufficiency of the materials Goodson relied on is a different question from reliability, so the inspection and photographs did not address the question at hand.
The only evidence Plaintiffs cited in their entire response is the following deposition excerpt: Q. Do you have — well, I’ll circle back to that here in a second. You are not offering any opinions about the condition of the fascia board immediately before the incident occurred, correct? A. Well, except for the fact that it was improperly attached; that is correct.
Plaintiffs used this excerpt to argue that Defendant incorrectly states that Goodson offers no opinion about the status of the wooden panel prior to the accident. But the Court is not so concerned with whether Goodson testified that the panel was improperly attached. Rather, the Court is concerned that it lacks the information required to perform its gatekeeping function under Rule 702(c) to evaluate the reliability of the method underlying this opinion.
The quoted excerpt alone does not assist the Court in performing this function, and Plaintiffs did not attach or cite any other evidence. Goodson himself answered “No” when asked if he used any “technique or underlying theory that [he] relied upon in arriving at [his] opinions.” While the Court did not give conclusive weight to that answer because it does not have the entire deposition transcript and it is up to the Court to determine if a reliable method exists, it was Plaintiffs burden to otherwise demonstrate his “testimony is the product of reliable principles and methods.”
Plaintiffs did not demonstrate that any potential method is reliable by a preponderance of the evidence
The Findings section of Goodson’s report begins by explaining that the “actual piece of lumber has not been examined,” but that a photograph was examined. The wooden panel that struck Amy Manzanares was apparently attached to the lumber depicted in the photograph.
Below the photograph, Goodson explained that the lumber appeared to have been ripped as opposed to cut with a cross cut technique. When Goodson was asked about this portion of the paragraph during his deposition, his testimony left the Court unable to analyze reliability. Defense counsel stated that she wanted “to understand the significance of the findings here regarding the lumber being ripped versus crosscut.” Goodson responded that “There’s no significance in this case.”
In the next sentence under the Findings section, Goodson stated that “the lumber appears to be actual lumber, as opposed to an engineered wood product (such as MDF, Medium Density Fiberboard).” According to Goodson’s report, these “observations have more to do with fit and finish of the product; the lumber does not appear to aesthetically match what was found to be used in other similarly outfitted vehicles.”
Neither the report or the deposition excerpts provided by both parties explain how these observations about the type of wood at issue inform Goodson’s opinions. Given no other materials, the Court cannot conclude that it is more likely than not this potential method is reliable.
Next, Goodson’s report provided close-up photographs of the lumber to which the wooden panel that injured Amy Manzanares was attached. According to him, there is “no apparent evidence of any type of adhesive having been used.”
While the analysis of the lack of evidence of an adhesive and screw type could be a method, the Court cannot conclude it is reliable under the circumstances.
Potential spoliation of evidence does not bear on the Rule 702 analysis
It may well be that it was not possible for Goodson to have a reliable method in a case where the wooden panel at issue was repaired before he could ever inspect it. The facts may ultimately show that Defendant spoliated evidence by repairing the panel after a duty to preserve arose. That is not the question before the Court here. Admission of expert testimony as a spoliation sanction is a “wholly inappropriate” remedy. Such a remedy would have this Court “flatly ignore its responsibilities” as a gatekeeper of inadmissible expert testimony under the Federal Rules of Evidence. As a result, the Court cannot rely on what method Goodson might have been able to employ without the alleged spoliation as a basis to admit his testimony.
Held
The Court granted the Defendant’s motion to exclude the testimony of Plaintiffs’ expert Mark Goodson, P.E.
Key Takeaway
The Court is unconvinced that Plaintiffs carried their burden to show it is more likely than not that Goodson’s opinions are the product of reliable principles and methods. The Court reached this conclusion for three main reasons. First, the evidence did not identify a methodology for the Court to evaluate. Second, even if Plaintiffs identified a methodology, the evidence did not show its reliability by a preponderance of the evidence. Third, whether Defendant spoliated evidence has no bearing on the admissibility of Goodson’s testimony.
Case Details:
Case Caption:
Manzanares V. El Monte Rents, Inc.
Docket Number:
4:24cv191
Court Name:
United States District Court for the Eastern District of Texas, Sherman Division
Plaintiff R&J Components filed this action for negligence, alleging damage to inventory during roof renovations. Centimark Corporation and SIU Professional Roofing LLC (“Defendants”) sought to exclude Plaintiff’s damages expert, Mikey Minor, under Rule 702 of the Federal Rules of Evidence.
Engineering Expert Witness
Mikey Minor is a director of consulting and lead consulting engineer with twenty years experience with an industry-leading engineering firm servicing the insurance and legal industries on losses involving electronics, electrical infrastructure, and electro-mechanical equipment. He supervises the entire division of engineers in multiple locations and provides support for data, salvage, and restoration divisions.
In addition to consulting on high-profile and large losses, he oversees assigning and reviewing all projects with engineering staff, developing ongoing test procedures and research protocol, and performing peer review and quality control of engineers’ work product.
Plaintiff designated Mikey Minor to testify as an expert witness on (1) the extent of the property damage and (2) the value of the loss.
I. Qualification: Specialized Knowledge
Defendants asserted that Minor “has no particular knowledge, training, skill, or experience that would assist the jury as to determining [the] value of the allegedly damaged inventory.”
Plaintiff argued, “Minor has specialized knowledge in industry sources to obtain pricing and evaluat[e] unique components to develop comparison pricing where exact ‘apples to apples’ components may not exist in the market.”
Plaintiff has demonstrated by a preponderance of the evidence that Minor’s valuations and consideration of factors including the identification of each component, its footprint, operation, and more, is beyond the knowledge of a layperson. As such, the Court held that Minor is qualified to testify to these matters.
II. Reliability
A. Items 1 & 7: Failure to Determine the Extent of the Damage & Subjective Evaluations of Contamination
Defendants argued that Minor’s testimony and opinions are not reliable because he failed to determine the extent of the damage, did not identify the source of contamination in his evaluation, and made subjective evaluations of the level of contamination observed on the inventory.
Plaintiff emphasized that Minor inspected the subject inventory on two separate visits: in May and June of 2022. In the second visit, which took place over the course of three days in June, Minor and his team visually inspected, photographed, and noted the contamination and number of parts in total inventory of approximately seventy skids containing over 500 different part numbers and parts exceeding fifteen million pieces of inventory.
Minor has previously served as an expert and has worked on multiple high profile insurance claims to document damages and identify costs. His determination of the extent of the damage is supported by photo evidence that could be used to replicate his findings. He also created various categories of contamination to classify and evaluate the levels of damaged inventory.
This type of visual assessment, inspection, and valuation falls squarely within Minor’s field of practical expertise. Minor sufficiently explained his methodology and bases for his determinations in categorizing and classifying the damaged inventory. The Court is satisfied that this methodology is reasonably reliable under Rule 702(c) and has been reliably applied to the facts under Rule 702(d).
B. Item 8: Failure to Determine Fair Market Value
Defendants argued that Minor was initially retained to determine the replacement value of the inventory, not the fair market value, and that his valuation of the goods erroneously includes only the replacement value.
Plaintiff has explained that its water damaged products have a resale value of zero. Minor’s reliance on Plaintiff’s statements that the products are a complete loss after being damaged by water is not a basis for the exclusion of his testimony.
Further, using this resale value, Minor’s description in his deposition of the method he used to obtain the values of the inventory describes an amount matching the description of fair market value.
Though Defendants may raise concerns over a jury being confused or misled, the Court disagreed. Ultimately, Defendants took issue with how Minor defines his data, but such a dispute did not go to the reliability of Minor’s testimony, at least for Rule 702 purposes.
C. Item 9: Acceptance of Plaintiff’s Allegations
Defendants argued that Plaintiff’s expert “is unreliable because he simply accepts Plaintiff’s allegations.” As an example, Defendants highlighted that Minor accepted Plaintiff’s assertion that all skids claimed as damaged did, in fact, sustain damage.
Minor’s reliance on Plaintiff’s list of damaged skids months after the water intrusion, as well as checking Plaintiff’s valuations on items for values—especially at the quantity Plaintiff held—that were not readily available, is reasonable and likely necessary given the circumstances. Though Defendants asserted that “Minor’s methodology was patently unreliable because he ignored market data in favor of appeasing . . . Plaintiff,” Minor’s deposition and report indicated that he used reasonable diligence to reach opinions regarding the value of Plaintiff’s damaged inventory, checking numerous websites, confirming with outside sources, and drawing on personal experience to determine values.
Plaintiff has shown by a preponderance of the evidence that the methodology used to confirm the values for available quantities of the claimed inventory is consistent with Minor’s expertise and has been explained clearly enough to withstand judicial scrutiny.
D. Item 10: Assignment of Value to Items Lacking Evidence of Contamination
Defendants also asserted that Minor’s methodology and opinions are unreliable because he assigned value to items that his own investigation concluded did not show any evidence of damage or contamination.
Plaintiff responded that Minor created various categories of contamination to provide a more thorough analysis, and that inventory subject to water and debris could not be sold by Plaintiff such that Defendants’ focus on functionality misses the mark.
Defendants construe Plaintiff’s response as a concession that inventory with no visible contamination is still marketable. It is unclear whether Plaintiff does, in fact, concede this point given Plaintiff’s evidence indicating that any exposure to the moisture whatsoever makes the products unmarketable because a willing buyer would not be interested in buying materials that had the risk of contamination.
In any event, this argument again goes to the weight, rather than the admissibility, of Minor’s testimony. A jury can determine whether it is reasonable for Plaintiff to be compensated, should it find liability, for products containing no visible evidence of contamination.
E. Items 2-6: Failure to Consider Prior Sales Data or Analyze Costs of Acquisition, Potential Resale Value, Salvage Value, & Whether Inventory Was Obsolete
Defendants list these “failures” with little, if any, explanation or reasoning provided to explain why they warrant exclusion of Minor’s testimony. The Court is not persuaded that any of these independent bases for purported unreliability are cause for the exclusion of Minor as an expert; nor would their collective effect change this determination.
Ultimately, these independent “holes” Defendants are attempting to “poke” are all factors that appear to suggest a lack of credibility, as opposed to reliability, on the part of Plaintiff’s expert. A matter affecting the weight and credibility of the testimony is a question to be resolved by the jury.
The Court found that Plaintiff has met its burden of showing by a preponderance of the evidence that Minor’s methods and opinions were reliable and will help a jury’s understanding or determination as to the extent of the damage and the value of the loss.
Held
The Court denied Defendants’ joint motion to exclude the testimony of Mikey Minor.
Key Takeaway
The Court need not determine that the expert testimony a litigant seeks to offer into evidence is irrefutable or certainly correct. As with all other admissible evidence, expert testimony is subject to being tested by “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.”
Case Details:
Case Caption:
R&J Components Corporation V. Centimark Corporation
