Expert Witness Profiler

Tag: Reliable

  • Engineering Expert Barred From Opining on the Sidewalk Condition 

    Engineering Expert Barred From Opining on the Sidewalk Condition 

    In this facially simple premises liability lawsuit, Plaintiff Stephanie Lewis sought to recover damages incurred when she tripped and fell on the front walkway of Samuel B. Heggie, Jr.’s home while she was delivering a pizza in February 2020. Samuel Heggie having died during the pendency of this lawsuit, the Plaintiff now proceeds against the Estate of Samuel B. Heggie, Jr., represented by Patrick Heggie as the Administrator ad Litem.

    Plaintiff filed a motion in limine to exclude the testimony of Defendant’s liability expert, Brian Grieser, while the Defendant filed a motion in limine to exclude the testimony of Plaintiff’s expert, David Johnson.

    Engineering Expert Witness

    David Patrick Johnson P.E., CSP is a Licensed Professional Engineer in the State of Tennessee and a Certified Safety Professional. He has over 32 years of experience in safety engineering, including work involving walkway safety and sidewalks.

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

    Human Factors Expert Witness

    Brian C. Grieser P.E., C.P.S.M., CSP, CPE has extensive experience in conducting evaluations in a wide range of product, occupational, and premises projects involving litigation as well as proactive consulting. His assessments have included walkway slip resistance; recreational boat design; watercraft occupant safety; towed watersports safety; time and motion studies; work sampling; human vibration and acceleration exposure; sound measurement and analysis; and human movement, climbing, and stability analysis.

    Grieser is a member of several professional societies including the Human Factors and Ergonomics Society, ASTM International, the Society of Naval Architects and Marine Engineers, the American Boat and Yacht Council, and USA Water Ski & Wake Sports.

    Discover more cases with Brian Grieser as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    It is undisputed that the Plaintiff tripped on a vertical displacement—i.e., a raised lip—of approximately 0.8 inches in the front walkway leading from Heggie’s driveway to the front door of Heggie’s house. It is also undisputed that Heggie was aware of the condition of the front walkway. The parties dispute whether the defect in the walkway (or sidewalk, as the parties refer to it) created an unreasonably dangerous condition.

    David Johnson

    A. The Parties’ Arguments

    Johnson opined that the pedestrian falls on sidewalks are often the result of the failure of the property owner or other responsible person to maintain the sidewalk in a reasonably safe condition. According to Johnson, if cracks in sidewalks are greater than 1/4 inch, this can create a trip hazard because it is unexpected; if such variances are found, repairs should be made.

    Johnson concluded that the walkway would be considered substandard and hazardous by ANSI and ASTM standards.

    The Defendant characterized Johnson’s opinions as largely concerning matters of common sense dressed up with technical language, or “common experience gilded by the expert’s credentials.” As for reliability, the Defendant contended that (1) many of Johnson’s opinions consisted of verbatim quotations from insurance company websites that Johnson found doing a Google internet search that Johnson himself characterized as “doing some research on some different aspects of trip-and-fall cases” and (2) Johnson’s references to various “safety standards” and “codes” are unreliable, insofar as he admits that none of the standards he cites apply to single-family residences, and none has been adopted by any Tennessee court or Sumner County authority.

    In response, the Plaintiff argued that Tennessee courts have held that whether a sidewalk is unsafe can be established by expert testimony.

    B. Discussion

    1. Relevance

    Several of Johnson’s opinions are based on the failure of the walkway to meet various international standards and codes, including (1) the International Residential Code (“IRC”), which incorporates by reference the International Property Maintenance Code and had been adopted by Sumner County at the time of the incident; (2) the American Standards for Testing and Materials (ASTM) F 1637-2013 Standard Practice for Safe Walking; (3) the American National Standard Institute (“ANSI”) standard 1264.2-2006; (4) standards promulgated by the National Institute of Occupational Safety and Health (“NIOSH”); and (5) the International Code Council (ICC)/ANSI A117.1-2017-American National Standard for Accessible and Usable Buildings and Facilities.

    In his deposition, Johnson conceded that the ANSI and NIOSH standards apply to workplaces, not residences. The ICC/ANSI standards to which he refers pertain to accommodations for persons with disabilities. These standards are irrelevant in this case, which involves a private residence, and Johnson’s reliance on them is misplaced and, moreover, will not assist the jury in determining whether the Defendant was negligent.

    The Plaintiff contended that the IRC code has been adopted by Sumner County and so is clearly applicable. However, the standard contains nothing outside what the common law negligence standard of care establishes. An expert is not required to establish the common law negligence standard.

    Finally, regarding the ASTM F 1637-2013 Standard Practice for Safe Walking, the plaintiff argues that the question of whether this standard has been adopted by Sumner County is irrelevant, because it is a national standard and provides a relevant guide for determining the reasonableness of the Defendant’s conduct in failing to repair the walkway. However, this is not a negligence per se case. The Court finds that this standard, too, is irrelevant to the question of whether the Defendant in this case exercised reasonable care.

    2. Reliability

    The Court found that Johnson’s opinions as a whole will not assist the jury in determining any fact at issue in this case. Moreover, insofar as he appears to have derived many of his opinions directly from insurance company websites, from which he quotes verbatim, and from a manual drafted by a lawyer and intended as litigation support in premises liability cases, those opinions did not rest on a reliable foundation.

    The Plaintiff simply has not established that Johnson’s proposed opinions are the “product of reliable principles and methods” or that they “reflect a reliable application of the principles and methods to the facts of the case.”

    Brian Grieser

    The Defendant sought to offer the expert opinions of Brian Grieser, a consultant with Applied Safety + Ergonomics, a Rimkus Company, to rebut the testimony of the Plaintiff’s expert. He sought to offer the following opinions:

    • As Lewis approached the area of her fall, the subject condition would have been in her field of view and available to be seen.
    • Because of the contrast in color, texture, and depth related to the section of the concrete sidewalk that had settled, the subject condition would have been conspicuous and detectable against the neighboring unsettled concrete.
    • From a human factors perspective, it is reasonable to expect that a pedestrian will encounter pavement conditions that will need to be attended to during normal everyday walking.
    • Immediately prior to the incident, Lewis did not give sufficient attention to where she was walking, which contributed to her incident.
    • Had Lewis paid sufficient attention to the area where she was walking as she approached the settled pavement, she could have changed her gait or path to avoid tripping and falling on the subject condition.
    • Given that the subject condition would have been conspicuous and was a common condition, no additional warning was needed to inform Lewis of its presence.
    • Johnson’s opinions conflict with published research related to pedestrians successfully navigating sidewalks outdoors with elevation changes substantially greater than 1/4-inch.
    • Johnson cited several standards in his report that were not applicable to the subject property and were unlikely to have been known by a homeowner such as Heggie.
    • Johnson did not provide a basis in his report to indicate that the subject condition was a recognized hazard to a typical homeowner.

    Analysis

    Having already found that Johnson’s opinions will not assist the trier of fact, the Court found that Grieser’s first six opinions are excludable for the same reason. 

    These opinions offer nothing that a reasonable jury could not determine on its own without the assistance of expert testimony. The rest of the opinions, the sole purpose of which is to rebut Johnson’s testimony, are unnecessary, as the Court has determined that Johnson will not be permitted to testify.

    Held

    The Court excluded the testimony of both the Plaintiff’s proposed expert, David Johnson, and the Defendant’s proposed expert, Brian Grieser.

    Key Takeaway

    As set forth above, under Daubert, courts assess the reliability of scientific testimony by considering such factors as (1) whether the [expert’s] theory or methodology has been or can be tested; (2) whether it has been subjected to peer review; (3) whether it has a known or potential rate of error; and (4) whether it has been generally accepted in the scientific community. None of these showings has been made here.

    Case Details:

    Case Caption: Lewis V. Heggie, Jr.
    Docket Number: 3:24cv501
    Court Name: United States District Court, Tennessee Middle
    Order Date: December 30, 2025
  • Economics Expert’s Opinion on Career Earnings Prospects Admitted

    Economics Expert’s Opinion on Career Earnings Prospects Admitted

    This case involves a Federal Employers Liability Act (“FELA”) claim for emotional distress and a Federal Railroad Safety Act (“FRSA”) whistleblower claim based on alleged retaliation.

    Despite the failure to timely file the required documents, the Union Pacific’s Employee Assistance Program (“EAP”) granted Nathan Walker a grace extension of his medical leave of absence.

    On May 14, 2022, Walker was flagged in the EAP system for revocation of leave because he failed to timely submit the required medical documents. Union Pacific revoked Walker’s medical leave, placed him in an absent without leave status (“AWOL”), and sent a termination letter to Walker for failure to protect employment. On May 23, 2022, Walker’s counselor cured the defect, and EAP extended Walker’s medical leave of absence until October of 2022. On October 19, 2022, Walker was released from his medical leave of absence and ultimately did return to work.

    Walker asserted that Union Pacific unlawfully retaliated against him for engaging in protected activity under the FRSA.

    Walker designated Dr. Kenneth G. McCoin, Ph.D. as his economic expert. Union Pacific filed the instant Daubert motion, arguing that (1) McCoin’s methodology and calculations are based off incorrect facts, and (2) his expert opinion is “fundamentally unsupported” and irrelevant because it has no “validity when applied to the pertinent factual inquiry.”

    Economics Expert Witness

    Kenneth Glen McCoin is a consulting economist and a chartered financial analyst. He holds a Ph.D. in Economics from the University of Houston. His professional experience includes serving as Chief Economist at American General Capital Management. He also taught investments and corporate finance at Houston Baptist University.

    Want to know more about the challenges Kenneth G. McCoin has faced? Get the full details with our Challenge Study report.  

    Discussion by the Court

    First, Union Pacific argued that McCoin has been excluded by a previous Court and thus should be excluded by this Court as well. However, even if other courts have given little weight to McCoin’s testimony or excluded him as an expert, that does not mean his ostensible testimony here will not satisfy a Daubert analysis. 

    Union Pacific argued that McCoin based his methodology and calculations off incorrect facts because his appraisal of Walker’s earning capacity was “based on the wholly incorrect assumption that [Walker] had not returned to work.”

    However, Union Pacific noted that Walker was released from his medical leave of absence and returned to work on October 18, 2022. Union Pacific asserted that McCoin’s opinion is misleading because it assumes a leave of absence three times longer than the actual leave.

    Walker conceded that McCoin’s statement of his return-to-work date was an incorrect statement of fact in his report. However, in an affidavit, McCoin stated that he is providing an appraisal of the earning capacity of Walker from the alleged date his economic loss began and continues through his remaining work life. Therefore, Walker contended that fact is not critical to McCoin’s opinion because his opinion is dependent on evaluating a pre-injured Walker and that person’s career earnings prospects.

    Analysis

    The Court’s role is to ensure that the admitted expert testimony is both reliable and relevant.

    McCoin attests that he is determining what Walker “more likely than not could have earned in wages through the rest of his work life if not for his injury.” McCoin further attested that his calculations are not based on what Walker’s actual wages are or will be for any period since his injury or in the future.

    It is within the province of the jury, not the Daubert gatekeeper, to analyze and weigh an expert’s findings to determine whether they do in fact support his conclusion.”

    Therefore, the Court found the methodology used by McCoin acceptable under Daubert. Additionally, any reliance on incorrect facts in forming some of his opinions did not render all his opinions inadmissible.

    Held

    The Court denied Union Pacific’s Daubert motion to exclude the opinions of Dr. Kenneth McCoin .

    Key Takeaway

    The original reliance on the incorrect facts goes to the weight of his testimony not the admissibility of the testimony itself. Thus, the Court concluded that McCoin’s expert testimony is admissible as both relevant and reliable.

    Case Details:

    Case Caption: Walker V. Union Pacific Railroad Co
    Docket Number: 5:23cv740
    Court Name: United States District Court, Louisiana Western
    Order Date: November 14, 2025
  • Marketing Expert’s Testimony on Patent-Related Barriers Admitted

    Marketing Expert’s Testimony on Patent-Related Barriers Admitted

    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”).

    CareFirst proffered Todd Clark as a pharmaceutical business expert. However, J&J filed a motion to exclude the testimony of Clark.

    Marketing Expert Witness

    Todd D. Clark has over thirty years of experience in the pharmaceutical industry. Before founding his own advisory firm, Clark served as Vice President of Business Development and Director of Media Services for Medicus NY, then the world’s largest pharmaceutical marketing firm.

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

    Discussion by the Court

    Clark’s expert report provided four opinions related to causation, all of which are premised on the assumption that the jury finds J&J’s challenged conduct was unlawful under antitrust law.

    A. Clark’s “Reasonable Company” Framework

    To begin with, J&J’s first objection applies to all four of Clark’s opinions. J&J argued that Clark’s opinions should be excluded on the ground that they are all predicated on an unreliable framework that Clark utilized in his opinions: what a “reasonable” pharmaceutical company could have done.

    However, the Court rejected J&J’s overarching argument that Clark’s “reasonable” pharmaceutical company is unreliable. Basically, Clark’s focus on the conduct of a “reasonable” company reflects a well-established approach in the antitrust context for evaluating corporate decision making.

    Clark drew on his more than thirty years of experience to offer a range of business options through the lens of industry practice. This approach falls within the province of acceptable testimony from an experiential expert, and it provides a reliable framework for assisting the jury in understanding the options available to companies in J&J’s position.

    That Clark applied this framework to the facts of this case did not render it unreliable, especially since Clark did not purport to give an opinion on what J&J actually knew or would have actually done absent the challenged misconduct.

    B. Clark’s First Opinion

    Clark’s first opinion is that “[a] reasonable company in J&J’s position had options other than asserting the biosimilar manufacturing patents” that “therefore would have avoided the allegedly anticompetitive actions associated with the Momenta biosimilar patents.”

    In his first opinion, Clark offers five alternative options “available to J&J or a reasonable company in the same position that would not have involved asserting the biosimilar manufacturing patents against biosimilar manufacturers and therefore would have avoided the allegedly anticompetitive actions associated with the Momenta biosimilar patents.” The five options that Clark offers are:

    1) “a reasonable company in J&J’s position could have chosen not to take possession of the biosimilar manufacturing patents at the time of the Momenta acquisition or to divest them upon completing the acquisition”;

    2) “a reasonable company in J&J’s position could have chosen not to maintain rights to the biosimilar manufacturing patents”;

    3) “a reasonable company in J&J’s position could have chosen not to assert the biosimilar manufacturing patents”;

    4) “a reasonable company in J&J’s position could have licensed the biosimilar manufacturing patents to ustekinumab biosimilar makers without also negotiating delayed market entry”; and

    5) “J&J could have chosen to license or divest the biosimilar manufacturing patents to another party.”

    J&J argued that each option provided by Clark should be excluded because, generally, they “amount to nothing more than conclusory assertions,” are “unsupported by any methodology,” and would not help the jury because Clark provided options other than “asserting” the Momenta patents yet Plaintiffs have expressly disavowed any challenge to J&J’s assertion of these patents.

    The Court is unpersuaded by J&J’s arguments for excluding Clark’s first opinion and the five options he provides therein. Clark is an experiential expert, so his over thirty years of experience provides a foundation for understanding the business incentives around patent ownership and divestiture.

    C. Clark’s Second Opinion

    As for his second opinion, Clark opined that “biosimilar manufacturers could have obtained FDA approval and launched with labels that carved out ulcerative colitis treatment as covered by the ‘307 patent.”

    J&J challenges Clark’s second opinion on the following two grounds: (1) because Clark is not a lawyer, he is unqualified to opine the legal risks of using a labeling carve-out, thereby making his opinion mere speculation; and (2) Clark utilized no specific methodology to conclude that skinny labels could avoid infringement, instead basing his opinion on the fact that the FDA has approved biosimilars with labeling carve-outs in the past.

    According to the Court, Clark applied a reasoned, experience-based methodology to answer a business and regulatory question, not a legal one. Any concern that J&J has with his conclusions goes to weight, not admissibility.

    J&J’s arguments for the exclusion of Clark’s second opinion mischaracterize the nature of the opinion as well as the methodology applied. First, Clark did not purport to offer a legal opinion about patent infringement or to assess the ultimate “legal risks” of labeling carve-outs, an issue he appropriately acknowledged during his deposition would be addressed by patent counsel.

    Here, Clark offers an opinion squarely within his expertise: whether, as a matter of regulatory practice and business risk, reasonable biosimilar manufacturers would have viewed a launch under a labeling carve-out as a viable strategy notwithstanding the ‘307 patent.

    Second, Clark’s opinion rests on a sufficiently reliable methodology. His report devotes substantial analysis to the history and mechanics of labeling carve-outs, the FDA’s guidance encouraging such practices, and the real-world experience of biosimilar and generic manufacturers launching under a labeling carve-out.

    D. Clark’s Third Opinion

    As for his third opinion, Clark opined that “absent the allegedly anticompetitive behavior, there would have been no patent-related barrier to earlier availability of ustekinumab biosimilars.”

    J&J challenged Clark’s third opinion as conclusory, arguing that it should be excluded because (1) Clark is not an expert in the pertinent art of biosimilar manufacturing and thus is unqualified, and (2) Clark did not conduct any analysis that would allow him to conclude whether biosimilar manufacturers faced patent-related barriers to entry.

    The Court held that Clark’s third opinion concerning patent-related barriers to biosimilar entry is appropriate expert testimony because it does not purport to resolve questions of patent infringement but instead offers an industry-based assessment of the patent landscape absent the alleged misconduct. First, Clark does not opine whether any biosimilar would infringe particular patent claims or analyze biosimilar manufacturing methods—tasks that would require the legal or technical expertise he does not claim to possess. Rather, his opinion is limited to whether, during the relevant period, any patents other than those challenged here would have presented a practical barrier to biosimilar entry once FDA licensure was obtained. Where the record shows that no other unexpired Stelara patents could have delayed competition, Clark’s expertise in pharmaceutical markets is sufficient to support that conclusion.

    Second, Clark’s opinion is reliable and is not, contrary to J&J’s argument, unsupported ipse dixit. He grounds his analysis in contemporaneous evidence, including J&J’s own statements, litigation positions, and employee testimony describing the scope and significance of the relevant patents.

    E. Clark’s Fourth Opinion

    As for his fourth opinion, Clark opined that a “reasonable company in J&J’s position would have launched an ‘authorized biologic’ if only one biosimilar had entered the market following expiration of the ‘734 patent.”

    J&J argued Clark’s fourth opinion is (1) not reliable because Clark merely recites record evidence in concluding that J&J would have launched an authorized biologic version of Stelara, and (2) not helpful for the jury because reciting the facts of a case without any analysis does nothing to assist the jury.

    Regarding reliability, Clark does not merely summarize J&J’s internal materials. Rather, he synthesizes those materials with his extensive experience in pharmaceutical markets and his review of industry literature to explain why, under well-understood competitive dynamics, a reasonable company in J&J’s position would have had strong incentives to launch an authorized biologic if only a single biosimilar entered the market in September 2023.

    Accordingly, because Clark explained the rationale behind his conclusions and applied his specialized knowledge to interpret complex business records and competitive incentives, the Court held that his testimony will help the jury understand when and why companies launch authorized biologics.

    F. Due Diligence Process

    Finally, the parties disagree over whether the opinions Clark offers in his rebuttal expert report concerning the Momenta acquisition due diligence process are supported. In his rebuttal report, Clark opined that, through its pre-acquisition diligence process, “J&J could draw a connection between [the Momenta manufacturing patents] and the potential to delay follow-on versions of Stelara from reaching the market” at the time it acquired Momenta.

    J&J challenged Clark’s opinions about the Momenta acquisition due diligence process as speculative and unsupported.

    In response, CareFirst argued that Clark’s opinions on the Momenta acquisition due diligence process are admissible because they are grounded in extensive contemporaneous evidence showing that a reasonable company in J&J’s position could have been prompted to investigate these patents during due diligence.

    The Court agreed with CareFirst: J&J’s objections to Clark’s opinions regarding the Momenta acquisition due diligence process go to weight, not admissibility, and are therefore appropriate for cross-examination rather than exclusion. Clark’s rebuttal opinions are grounded in record evidence, and they address what a reasonable company in J&J’s position could have discerned or investigated during the pre-acquisition due diligence process.

    Held

    The Court denied J&J’s motion to exclude the testimony of Todd Clark.

    Key Takeaway:

    By explaining what a reasonable company could have done instead of the challenged conduct, Clark’s testimony helps the jury understand the competitive landscape and the range of options available to companies in J&J’s position. As CareFirst notes, Clark does not opine whether a reasonable company in J&J’s position “would choose a particular option, but rather that there were multiple rational business options available” and that “none of those options would unlawfully delay biosimilar entry.”

    Thus, Clark’s testimony provided helpful context for the jury to evaluate whether the challenged conduct was exclusionary, and any risk of confusion can be addressed through cross-examination rather than exclusion.

    Case Details:

    Case Caption: Carefirst Of Maryland, Inc., Et Al. V. Johnson & Johnson, Et Al
    Docket Number: 2:23cv629
    Court Name: United States District Court, Virginia Eastern
    Order Date: December 23, 2025
  • Law Enforcement Expert Was Allowed to Opine on the Standard Practices Involving Police Canines

    Law Enforcement Expert Was Allowed to Opine on the Standard Practices Involving Police Canines

    In this excessive force case involving a police canine, Plaintiff Herman Evans (“Evans”) filed a motion to exclude the opinion of The City of Lynchburg’s (“City”) expert witness—Jeffrey T. Barrett (“Barrett”).

    Barrett offered four opinions (although the confines of those opinions are not as clearly defined as they should be). First, he reviewed the training records for Officer Reed and the canine Knox—the police officer and canine accused of using excessive force against Evans—and will opine that they received sufficient training. Second, he generally opined on acceptable use of force procedures involving police canines, including the Lynchburg Police Department’s use of force directives. Third, he opined on Evans’ behavior, concluding that he “agrees with the assessments made by Officer Reed about Evans being under the influence of drugs and alcohol.” And fourth, he opined that based on the facts of this case Reed’s decision to employ the canine Knox against Evans was a reasonable use of force.

    Law Enforcement Expert Witness

    Jeffrey Todd Barrett is a retired police officer, having served 31 years as a canine handler. For the last 22 years of his law enforcement career, Barrett trained other law enforcement officers on handling police canines. Barrett has 1,920 hours of canine training, having attended at least sixteen advanced courses on handling police canines. Barrett also served as an instructor for canine handlers, providing trainings for the Federal Bureau of Investigation; the Secret Service; Customs and Border Patrol; and the U.S. Army and Marine Corps. He has served as an expert witness in at least three other cases and co-authored the book, Canines in the Courtroom.

    Discover more cases with Jeffrey Barrett as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    Evans sought to exclude Barrett’s opinions, arguing they: (1) are outside the scope of Barrett’s expertise, (2) are legal conclusions; and (3) are not derived from reliable principles or methods.

    Generally, these arguments collide with Barrett’s experience and education—including decades as a law enforcement officer and canine handler and numerous, specialized trainings in handling police canines. Barrett has also trained other law enforcement officers—including FBI agents–on handling police canines and has written a book on police canines.

    Analysis

    The Court held that Barrett’s testimony about the standards and procedures for training and using police canines appeared to be both reliable and relevant—the two hallmarks of any Daubert inquiry.

    Barrett is also free to apply his expertise—i.e., knowledge about how canines should be trained, handled, and employed in the field—to the facts of this case and is free to opine on whether Officer Reed deviated from standard police practices.

    However, Barrett will not be allowed to opine on whether Officer Reed used excessive force in violation of the Constitution as that crosses the line from offering an opinion on the ultimate issue to offering an impermissible legal conclusion.

    Barrett will also be precluded from offering expert testimony on Evans’ behavior. Barrett purported to “agree with the assessments made by Officer Reed about Evans being under the influence of drugs and alcohol.” However, Barrett provided no basis for reaching that opinion. He does not purport to be an expert in toxicology or in any behavioral science. He also was not present on the date of the incident to personally observe Evans’ behavior. Rather, Barrett appeared to be parroting Officer Reed’s view of the facts. The jury can compare Officer Reed’s and Evans’ testimony, review any additional evidence (including if there is shoulder camera footage), and make a factual determination about Evans’ behavior without any assistance from Barrett.

    Barrett’s attempt to pile on when he was not a firsthand witness to Evans’ behavior crossed the Daubert line and will not assist the jury in any meaningful way. Accordingly, the Court excluded that proffered testimony.

    Held

    The Court granted in part and denied in part Evans’ motion to exclude the opinion of The City of Lynchburg’s expert witness—Jeffrey T. Barrett.

    Key Takeaway

    An expert can testify to the ultimate issue so long as there is an adequate foundation. The line between a permissible opinion on an ultimate issue and an impermissible legal conclusion is not always easy to discern. In this case, however, Barrett will not be allowed to opine on whether Officer Reed used excessive force in violation of the Constitution as that crosses the line from offering an opinion on the ultimate issue to offering an impermissible legal conclusion. 

    Case Details:

    Case Caption: Evans V. The City Of Lynchburg
    Docket Number: 6:24cv19
    Court Name: United States District Court, Virginia Western
    Order Date: December 19, 2025
  • Mechanical Engineering Expert’s Mix-and-Match Opinions Excluded

    Mechanical Engineering Expert’s Mix-and-Match Opinions Excluded

    Plaintiff Taylor Lavergne sued Hyundai Motor Company and Hyundai Motor America (collectively, “Defendants”) in connection with injuries she allegedly sustained during a rear-end collision between a 2013 Jeep Wrangler and a 2016 Hyundai Accent (the “subject vehicle”) in which she was a passenger.

    Plaintiffs designated Brian Herbst as their mechanical engineering expert. Hyundai Motor Company and Hyundai Motor America’s motion to exclude testimony of Brian Herbst under Rule 702.

    Mechanical Engineering Expert Witness

    Brian Ruben Herbst is a principal in the automotive engineering firm of SAFE Laboratories, L.L.C. He is routinely called upon to evaluate vehicle accidents and to analyze, test and evaluate various vehicle safety systems.

    His engineering experience has spanned more than 20 years, almost all of which has related directly to motor vehicle testing, crashworthiness, restraint system, and structural analysis. Herbst has been called upon to analyze several hundred real world accidents. He is a member of the Society of Automotive Engineers (SAE), American Society of Mechanical Engineers (ASME), and the National Society of Professional Engineers (NSPE).

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

    Discussion by the Court

    In his report, Herbst opined that “[w]ith the amount of rear crush that occurred in the accident, the subject vehicle failed to maintain an acceptable survival space.” Herbst also stated that he “could design a rear structure to be much stronger, not much more expensive or heavy, just as attractive and able to dramatically reduce crush and prevent serious occupant injury in a rear impact crash,” compared to the subject vehicle.

    To that end, Herbst outlined various methods to improve a vehicle’s rear strength:

    • “Replacing low-strength steel with high-strength steel (i.e. Boron steel is five times stronger than conventional steel)”;
    • “Implementing and/or improving load paths”;
    • “Implementing internal reinforcements, including tubular steel reinforcements”;
    • “Implementing external reinforcements, such as stiffening ribs or doublers”; and
    • “Reinforcing component voids with structural foam.”

    Herbst opined that each of these modification methods “employ basic engineering principles which are standard industry practices” and that all of the methods “were technologically and economically feasible at the time of the manufacture of the accident vehicle.”

    Additionally, his list of modification options “can be mixed and matched as desired,” and “it is not necessary for all the modification options to be incorporated to produce a strong and non-defective rear structure.”

    Defendants argued that Herbst’s opinions regarding his alternatively designed Hyundai were unreliable and therefore inadmissible because Herbst employed a variable design approach rather than a single design alternative.

    Analysis

    Herbst offered as an alternative design an exemplar 2012 Hyundai Accent reinforced with a combination of higher-strength steel, additional welding and expanding rigid foam.

    Herbst opined that his exemplar alternative design need not be employed in its entirety, but that his proposed “strength improvement design options can be mixed and matched as desired,” and that “it is not necessary for all the modification options to be incorporated to produce a strong and non-defective rear structure.”

    Defendants complained that Herbst is not committed to one alternative design, and that he could not identify the strength of steel used in any other comparator vehicle.

    Moreover, Defendants remarked that Herbst’s opinion includes any unspecified combinations of his five proposed modification methods for a “non-defective rear structure.” Defendants argued that this noncommittal approach would prejudice Defendants because Herbst has not established that any one of those methods individually “was capable of preventing the claimant’s damage.”

    In her opposition, Plaintiff informed the Court that Herbst will testify as to only the alternative design used in Plaintiff’s Rear Impact Test. However, Defendants asked the Court to grant their motion as to “mix-and-match” opinions regarding design options. The Court agreed with Defendant here that the mix-and-match opinions are problematic and should not be permitted at the trial of this matter.

    Defendants contended that Plaintiff’s Rear Impact Test is unreliable due to its position that Plaintiff’s Rear Impact Test was not substantially similar to the subject collision and that Plaintiff failed to show that another way to design the product existed. The Court issued a previous Memorandum Order that found that there was substantial similarity and that non-compliance with FMVSS 301-R did not justify exclusion of the alternative design.

    Held

    The Court granted in part and denied in part Hyundai Motor Company and Hyundai Motor America’s motion to exclude the testimony of Brian Herbst.

    Key Takeaway

    Herbst was prohibited from testifying or offering any evidence of a variable design approach (“mix-and-match”) because he offered no measurements, testing, or other quantification to support his assertion that “mixing and matching” his proposed modifications would result in a “strong ad non-defective rear structure.”

    Case Details:

    Case Caption: Lavergne V. Hyundai Motor Co.
    Docket Number: 2:21cv4236
    Court Name: United States District Court, Louisiana Western
    Order Date: December 12, 2025
  • Economics Expert’s Lost Sales Analyses Deemed Reliable

    Economics Expert’s Lost Sales Analyses Deemed Reliable

    Plaintiff Serra Chevrolet, Inc. (“Serra”) sued Defendant General Motors, LLC (“GM”) for breach of contract, violations of Alabama’s Motor Vehicle Franchise Act, negligence, wantonness, and violations of the federal Dealer’s Day in Court Act.

    Serra retained Patrick L. Anderson to provide an expert report on lost sales and lost profits in this matter. GM filed a motion to exclude the testimony of Anderson.

    Economics Expert Witness

    Patrick L. Anderson founded Anderson Economic Group in 1996, and currently serves as the company’s principal and chief executive officer.

    Anderson is a graduate of the University of Michigan, where he earned a Master of Public Policy degree and a Bachelor of Arts degree in political science. He is a member of the National Association for Business Economics and the National Association of Forensic Economists. The Michigan Chamber of Commerce awarded Anderson its 2006 Leadership Michigan Distinguished Alumni award for his civic and professional accomplishments.

    Anderson has written over 100 published works, including the Economics of Business Valuation from Stanford University Press.

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

    Discussion by the Court

    I) Helpfulness and Qualification

    First, GM did not argue that Anderson’s testimony will not assist the trier of fact, and, after thorough review, the Court found that it will.

    Second, although GM did not explicitly argue that Anderson is not qualified to act as an expert in this case, GM did state that Anderson merely “purports” to be an economic expert, is not an accountant, and “only holds degrees in ‘public policy.’” This called Anderson’s qualifications into question. The Court found that Anderson is qualified to act as an expert witness in this case.

    Anderson’s training, education, and experience all qualify him as an expert: his undergraduate and graduate degrees involved extensive coursework in economics, he worked as an economist for multiple employers, he founded and serves as CEO of Anderson Economic Group, he has published multiple journal articles on economic topics, and he has been recognized by professional economics societies.

    Anderson Economic Group has previously done work for numerous automotive manufacturers, including GM, and in the first few months of 2025, several major news outlets cited Anderson Economic Group regard to automotive economic issues. Anderson’s expert testimony regarding damages has been admitted in multiple automotive cases.

    II) Reliability

    GM did challenge the reliability of Anderson’s opinions and methodology. However, Anderson’s lost sales and lost profits analyses are sufficiently grounded in GM’s own metrics and industry data. He used GM’s Retail Sales Index and Planning Volume projections—metrics that GM itself uses to gauge expected dealer performance—as well as comparisons to similar dealerships’ market penetration. These provide an objective basis for estimating how many more vehicles Serra would have sold if not constrained by GM’s allocations. While GM criticizes Anderson for assuming Serra would sell every additional vehicle allocated, this assumption aligns with evidence that dealers typically sell whatever inventory they receive over time.

    GM also argued that Anderson improperly ignored Serra’s actual (poor) profitability and instead applied an average profit per vehicle from other regional dealers. However, Anderson explained that Serra’s own financials were abnormally low because GM’s failure to allocate enough inventory made Serra unprofitable.

    Indeed, the entire point of a lost profits analysis is to determine what profits would have been in the absence of the allegedly harmful conduct. Constraining Serra’s lost profit calculation by requiring it to consider its own depressed profits when considering what its profits should have been would run counter to this goal. And using the regional average gross profit per new vehicle provides a reasonable estimate of what Serra could have earned if it, like other dealers, had adequate inventory.

    The Court held that any gaps or debatable assumptions in Anderson’s opinion (such as not conducting a customer survey or perfectly allocating sales among competing dealers) are points that GM can attack on cross-examination.

    III) Legal Conclusions

    Finally, GM raised concerns that Anderson made legal conclusions throughout his report. Specifically, GM is concerned about Anderson’s conclusions that GM’s allocation process is “arbitrary,” “inconsistent with their contract,” “not consistent with the Alabama statute,” and the “proximate cause” of Serra’s damages.

    A) Arbitrariness

    GM argued that Anderson may not testify that GM’s allocation system is “arbitrary” because whether GM’s allocation system is arbitrary is a question of fact for the jury. GM also argued that because Anderson’s finding of arbitrariness permeates his entire report, Anderson should not be allowed to testify at all.

    Because in testifying that GM’s allocation system is arbitrary Anderson would indeed be substituting for the court in charging the jury regarding the applicable law, the Court agreed that Anderson may not testify that GM’s allocation system is arbitrary.

    However, it did not follow that Anderson’s entire testimony should be excluded. Instead of saying that a part of GM’s allocation process is “arbitrary,” Anderson can simply use a different word, such as “unexplained” or “discretionary,” and leave it to the jury to determine if such unexplained and discretionary decisions constitute arbitrary behavior. This simple change in word choice is sufficient to bring Anderson’s testimony in line with Rule 702.

    B) Contractual Interpretation

    GM also argued that Anderson may not opine that GM’s allocation process is “inconsistent with their contract.” Such testimony from Anderson would entail first testifying as to the meaning of contractual provisions and then testifying that GM breached those contractual provisions.

    The Court held that Anderson may not testify that the contract between GM and Serra requires GM to consider Serra’s sales requirements and sales potential, because such testimony by Anderson would simply constitute a reiteration of Serra’s interpretation of the contract. This type of testimony is properly excluded regardless of whether it is “within the scope of [the expert’s] undisputed knowledge, training, and qualifications.” Once the Court has found a contract provision to be ambiguous, what an expert witness may provide is extrinsic evidence—such as that of trade usage or industry meaning—to guide the jury’s interpretation of the provision.  Thus, although Anderson may not interpret the contract himself, he may provide extrinsic evidence to help the jury interpret the contract.

    As to the second issue—whether Anderson may testify that GM breached the contract—the answer is no. Thus, Anderson may not testify that GM breached its contract with Serra.

    C) Statutory Interpretation

    GM also argued that Anderson may not state that GM’s allocation process is “not consistent with the Alabama statute.”

    The Court properly excluded such testimony because stating that GM’s allocation system is not consistent with the Alabama statute did no more than offer expert opinion in the form of legal conclusions, risking confusing, prejudicing, or misdirecting the jury.

    D) Proximate Cause

    Finally, GM argued that Anderson may not state that GM’s allocation process is the “proximate cause” of Serra’s losses because to state the existence of proximate cause is to make an improper legal conclusion.

    The more salient issue is whether Anderson’s testimony as to proximate cause will be helpful to the trier of fact.

    Stripped to its core, the causal chain is one that a layperson can easily grasp: a reduction in vehicle allocations necessarily produces a reduction in inventory, which in turn yields fewer sales and lower profits. But this causal chain is heavily contested. Throughout Anderson’s report, he delves into the finer points of how exactly GM’s allocation system caused Serra financial harm.

    These are issues on which the opinions of an expert economist who is familiar with the automotive industry would be helpful to the trier of fact.

    Held

    The Court granted in part and denied in part GM’s motion to exclude the testimony of Patrick Anderson. 

    Key Takeaway

    GM claimed that Anderson’s opinions are unsupported ipse dixit, but this assertion is contradicted by the record. Anderson’s report explicitly lays out how he reconstructed GM’s allocation process from internal documents, identified nine arbitrary aspects of that process (e.g., unexplained use of tiers, inconsistent time frames for sales data, lack of criteria for discretionary allocations), and then used GM’s own sales potential metrics to quantify lost sales. And he did not simply assert in a vacuum that Serra lost sales due to GM’s allegedly unlawful allocations; he tied each lost sale estimate to data points GM itself calculated for Serra’s market. This kind of analysis is not ipse dixit because it is “‘supported by appropriate validation—i.e., ‘good grounds,’ based on what is known.’”

    Case Details:

    Case Caption: Serra Chevrolet Inc V. General Motors LLC
    Docket Number: 2:23cv1675
    Court Name: United States District Court, Alabama Northern
    Order Date: December 19, 2025
  • Construction Expert’s Opinions on Typical Overhead and Profit Margins Admitted

    Construction Expert’s Opinions on Typical Overhead and Profit Margins Admitted

    This litigation arises from hail damage to a hotel owned by Defendants, Merryton Bossier, LLC, Grace Chiao, and Hui Ping Lee (collectively, “Merryton”) in Bossier City, Louisiana, in 2020.

    Merryton engaged Stonewater Roofing LTD. Co., LLC  to perform roof repairs, contingent upon insurance approval by Scottsdale Insurance Company (“Scottsdale”).

    After appraisers assessed the damage, Scottsdale refused to approve the work based on the estimates provided. The parties proceeded to mediation, and an amount of $1,500,000 was agreed upon. However, the parties never signed the mediation agreement, and Merryton later informed Stonewater that they would not proceed with the work. It is disputed exactly what work Stonewater performed. Following this, Stonewater filed suit, and Scottsdale filed a motion to enforce the settlement agreement, leading to the deposit of the $1,500,000 amount into the court registry. Stonewater now claims a right to those funds, while Merryton disputes it. Stonewater and Merryton both filed motions for summary judgment, and the Court ruled that a contract with a suspensive condition existed, but the question of whether that condition was fulfilled will be determined at trial.

    Merryton retained William J. Cowley (“Cowley”) as a rebuttal expert to critique the methodology, assumptions, and pricing analysis of Stonewater’s expert.

    Stonewater argued that Cowley’s testimony should be excluded, asserting that his testimony did not meet the requirements of Rules 401–403 and 702.

    Construction Expert Witness

    William Jeffrey Cowley  has 44 years of experience in the construction industry, including expertise in claims adjusting and roofing. 

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

    Discussion by the Court

    Stonewater argued that Cowley’s opinion regarding the typical overhead and profit being 10% each is unsupported by anything except Cowley’s subjective opinion. Stonewater also contended that Cowley’s reliance on national, generalized data failed to consider the specific circumstances of this case. Additionally, Stonewater argued that Merryton failed to timely provide a signed expert report in compliance with the Court’s Scheduling Order and Federal Rule of Civil Procedure 26, asserting that the signed version of Cowley’s report was produced only after the applicable deadline had passed.

    In a separate motion in limine, Stonewater again challenged Cowley’s testimony. The motion made several arguments identical to the Daubert motion, including arguments on Cowley offering legal conclusion.

    Analysis

    Cowley’s Qualifications

    Cowley’s qualifications are sufficient to offer opinions on the reasonableness of cost estimates and the methodology employed by Norrell. Stonewater does not contest these credentials, so the Court need not consider his qualifications in detail.

    Posture of the Issue: Limited Rebuttal Expert

    Because Cowley is not offering new opinions about the cost of repairs or liability but instead critiques the assumptions and conclusions of Stonewater’s expert, he is not required to generate an entirely new calculation for repair costs. Merryton contests liability, so it would be illogical for its expert to assume liability for purposes of preparing a competing cost estimate. Thus, the Court held that Cowley is not obligated to offer an independent repair costs estimate.

    Untimely Signed Report

    Plaintiff raised the procedural issue that Cowley’s report was not signed on time as required by Rule 26 and the Court’s Scheduling Order. Rule 26(a)(2)(B) requires that an expert submit a signed, written report.

    The Court must use the following factors to determine whether the failure to disclose was justified or harmless: “(1) the explanation for the failure to disclose; (2) the importance of the evidence; (3) the potential prejudice to the opposing party of admitting the evidence; and (4) the possibility of curing such prejudice by granting a continuance.”

    Here, Stonewater argues that Cowley’s expert report should be excluded because it was not signed by the deadline set forth in the Court’s Scheduling Order. The record reflected that although Cowley’s report was initially served without a signature, Cowley later executed the report, and a signed copy was provided to Stonewater. The contents of the report did not change, and Stonewater was fully apprised of Cowley’s opinions prior to delivery of the signed copy.

    The Court found that any failure to timely provide a signed report was harmless. First, the omission of the signature appears to have been a mere oversight, rather than an attempt to evade disclosure obligations. Second, Cowley’s testimony is important to Merryton’s rebuttal of the opposing expert’s cost analysis, so exclusion would be a disproportionate sanction given the nature of the deficiency. Third, Stonewater has not demonstrated prejudice arising from the lack of a timely signature, as it received the report itself on time, was aware of the substance of Cowley’s opinions, and had the opportunity to depose Cowley. Accordingly, the Court found that the initial failure to provide a signed expert report did not warrant exclusion under Rule 37(c).

    Cowley’s Critique of the $1,500,000 Figure

    Stonewater argued that Cowley offered an impermissible legal conclusion by stating that there is no contractual or other basis for using the $1,500,000 mediation amount as the price for the roofing work.

    The Court found that Cowley’s discussion of the $1,500,000 mediation amount fell within the proper scope of rebuttal expert testimony and did not constitute an impermissible legal conclusion.

    Cowley did not attempt to resolve whether the mediation agreement is legally enforceable or whether Stonewater is ultimately entitled to the insurance proceeds. Rather, he critiqued the opposing expert’s assumption that the mediation amount may be treated as a fixed contract price for purposes of calculating damages.

    The Discrepancy Between the Date of Loss and Pricing (2020 vs. 2025)

    Cowley’s use of the U.S. Department of Labor Statistics Producer Price Index to highlight price increases in non-residential roofing from 2020 to 2025 is a valid methodology for adjusting for inflation. Under Rule 703, experts may base their opinions on sources that other experts in their particular field would reasonably rely on. Stonewater argued that Cowley’s reliance on government statistics is improper because it is “broad, national data—without a bridge to the specific job or loss date ….”

    According to the Court, Cowley is not required to produce an independent cost estimate, and he did not use the Producer Price Index to calculate damages or to offer a substitute cost estimate.

    As for whether the Producer Price Index is the best source for this data, it can be explored on cross examination. Any lack of project-specificity goes to the weight of Cowley’s testimony, not its admissibility.

    Scope of Rebuttal

    The opposing expert’s damages analysis depends on the pricing data he selected, and Cowley’s testimony directly challenges the accuracy of those inputs. Stonewater’s attempt to draw a distinction between critiquing the opposing expert’s “formula” and critiquing the pricing inputs used within that formula is an artificial one. Pricing assumptions are an integral component of the methodology itself, and challenging those assumptions is a proper means of rebutting the resulting conclusions.

    Overhead and Profit

    Stonewater contended that Cowley’s statement that 10% overhead and 10% profit is the industry standard should be excluded because Cowley did not produce independent research supporting this statement. However, the Court found that Cowley was not required to produce research to support this statement.

    With 44 years of experience, Cowley is qualified to testify about standard industry practices in roofing, including typical overhead and profit margins.

    Cowley’s Opinion Will Assist the Trier of Fact

    Stonewater argued that Cowley’s opinions will not assist the trier of fact and amount to nothing more than subjective commentary supported only by his credentials.

    The Court disagreed. Cowley’s testimony assisted the trier of fact by explaining industry practices and by identifying potential deficiencies in the assumptions and inputs underlying Norrell’s damages analysis. These are matters that are not within the common knowledge of a lay juror. Moreover, evaluating the reasonableness of pricing assumptions, inflation adjustments, and customary overhead and profit margins in the commercial roofing industry requires specialized knowledge. Cowley’s opinions provided context and explanation that will help the jury in evaluating Norrell’s conclusions. Any weaknesses in Cowley’s opinions may be explored through cross examination. 

    Motion in Limine

    The Court has already determined that Cowley’s testimony is admissible under Rule 702. The majority of the arguments raised in Stonewater’s motion in limine merely repackaged those same Daubert challenges under the guise of Rules 401, 402, and 403.

    However, Stonewater did raise an additional relevance argument. Stonewater contended that Cowley’s opinions are irrelevant under Rules 401 and 402 because Cowley’s assertion that 2020 pricing inputs should have been used would, if applied within Norrell’s model, produce a profit margin higher than the 49% margin Cowley already characterizes as excessive. See Record Document 153 at 5. According to Stonewater, this alleged inconsistency rendered Cowley’s testimony irrelevant and therefore inadmissible.

    The Court found that this argument is unpersuasive. Stonewater’s reasoning rests on the assumption that the $1,500,000 mediation amount constitutes a fixed and binding contract price. This is a premise that Cowley did not accept and that remains disputed in this litigation. Framing Cowley’s rebuttal opinions as internally inconsistent requires acceptance of the assumptions Cowley challenges. Because that premise is disputed, this argument did not undermine the relevance of Cowley’s testimony.

    Held

    The Court denied Stonewater’s Daubert motion to exclude the testimony of William J. Cowley and motion in limine to exclude or limit the opinions and testimony of William J. Cowley.

    Key Takeaway

    In this context, the standards applicable to rebuttal experts are different from those governing affirmative expert testimony. A rebuttal expert’s function is to identify flaws in the opposing expert’s analysis, not necessarily to construct a competing model. Although courts have recognized that rebuttal experts may, in appropriate circumstances, offer independent opinions or utilize alternative methodologies, nothing in Rule 26 requires them to do so.

    Case Details:

    Case Caption: Stonewater Roofting Ltd. Co., LLC V. Merryton Bossier, LLC
    Docket Number: 5:22cv1048
    Court Name: United States District Court, Louisiana Western
    Order Date: December 17, 2025
  • Maritime Safety Expert Was Barred From Opining on Structural Integrity

    Maritime Safety Expert Was Barred From Opining on Structural Integrity

    At its core, this case involves an alleged injury on a ship. Specifically, Plaintiffs Robert Mondella and Tara Mondella allege that Mr. Mondella was seriously injured when he fell from a gangway while performing services on board the JPO Capricornus (the “Capricornus”), a vessel owned by Defendants.

    Defendants filed a motion to exclude the report and testimony of Plaintiffs’ expert Captain Joseph Ahlstrom.

    Defendants challenge each of the enumerated opinions in Capt. Ahlstrom’s report on at least one of the following grounds: (1) that he is unqualified; that his opinions are speculative, conjectural, or otherwise rely on insufficient evidence; and (3) that he relied on principles or methods that are inappropriate or otherwise improper for expert testimony.

    Maritime Safety Expert Witness

    Captain Joseph F. Ahlstrom is a graduate of the State University of New York (SUNY) Maritime, with a bachelors degree in marine transportation. He completed his masters degree in transportation management with honors from SUNY Maritime College. Captain Ahlstrom has commanded six merchant ships, including a tanker, containership, breakbulk carrier, and research and training ship. He sailed for fifteen years in the U.S. and Foreign Merchant Marine. In January 1996, Captain Ahlstrom started teaching at SUNY Maritime College. During his time at SUNY Maritime he was captain of the Training Ship Empire State from 1998–2000. He also was chairman of the Marine Transportation Department from 2003 until May 2005.

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

    Discussion by the Court

    Defendants challenged each of the enumerated opinions in Capt. Ahlstrom’s report on at least one of the following grounds: (1) that he is unqualified; (2) that his opinions are speculative, conjectural, or otherwise rely on insufficient evidence; and (3) that he relied on principles or methods that are inappropriate or otherwise improper for expert testimony.

    Qualifications

    Defendants argued that Capt. Ahlstrom “is not a metallurgist, possesses no educational background, training, or experience in the field of metallurgy, and is not qualified to opine on metallurgical matters (i.e., whether the pin was rusted or corroded, leading it to be in a ‘defective’ condition).”

    Although Capt. Ahlstrom is an expert, his expertise on “hundreds if not thousands of [gangways]” demonstrates that he has experience generally with the type of gangway pin at issue, but it does not demonstrate that his expertise extends to qualify him to render the testimony about the condition and structural integrity of the pin at issue here.

    Capt. Ahlstrom does not need to be a classically trained metallurgist, but he must have experience such that the Court is persuaded that his opinions on the condition of the at-issue pin are as reliable as his opinions based on other pins that were available for him to inspect in person. Plaintiffs have failed to demonstrate that Capt. Ahlstrom has experience in evaluating the condition of gangway pins through a single photograph.

    Because Plaintiffs have not demonstrated that Capt. Ahlstrom has such experience, Plaintiffs have failed to demonstrate by a preponderance of the evidence that Capt. Ahlstrom is qualified to testify about matters of deterioration or structural integrity under these circumstances.

    Methodology

    i. Capt. Ahlstrom’s Testimony is not Based on Sufficient Data

    At bottom, Defendants relied on the fact that Capt. Ahlstrom did not inspect the relevant pin or gangway in person. Although the failure to conduct such inspection is not enough, by itself, to render expert testimony unreliable, Plaintiffs did not demonstrate that his testimony concerning his review of the available materials is reliable.

    Plaintiffs conceded that without the tangible pin, their expert would not have access to sufficient facts or data necessary to determine the pin’s condition—those concessions are fatal.

    If there was not enough information for Plaintiffs’ expert to determine material facts about the pin’s condition then, there is certainly not enough information now. Plaintiffs cannot credibly demonstrate that Capt. Ahlstrom’s testimony regarding the subject pin is based on sufficient facts or data. In other words, “there is simply too great an analytical gap between the data and the opinion proffered.”

    That analytical gap renders the portions of the testimony that concern the condition of the pin speculative and conjectural. Because Rule 702 bars such speculative and conjectural testimony, the Court must preclude it.

    ii. Capt. Ahlstrom’s Testimony is not the Product of Reliable Principles and Methods

    One of Capt. Ahlstrom’s opinions is nothing more than an expert “simply accumulating and putting together one party’s story,” which is “expressly prohibited.” 

    Moreover, Capt. Ahlstrom’s failure to consider potential alternative explanations, and Plaintiffs’ failure to address this deficiency, further undermine the Court’s confidence that the subject testimony is the product of reliable principles and methods.

    According to the Court, Capt. Ahlstrom provided legal conclusions about the duty of care and causation, disguised as his opinion.

    Plaintiffs’ failure to demonstrate that their proposed expert’s testimony “is the product of reliable principles and methods,” or “a reliable application of the principles and methods to the facts of the case” is particularly troubling, as the principles-and-methods components of Rule 702 is the crux of the Court’s inquiry.

    Held

    The Court granted Defendants’ motion to exclude the report and testimony of Capt. Joseph Ahlstrom .

    Key Takeaway

    Concerns about the reliability of Capt. Ahlstrom’s reasoning and methodology, the sufficiency of available data, and the other infirmities discussed above lead the Court to the inescapable conclusion that Capt. Ahlstrom’s testimony will not assist the trier of fact. Taken together, Plaintiffs failed to demonstrate that Capt. Ahlstrom’s testimony satisfies even one of the four requirements of Rule 702. Therefore, the Court found “that there is simply too great an analytical gap between the data and the opinion proffered.” That analytical gap renders Capt. Ahlstrom’s testimony at best, irrelevant, useless, and sure to waste time.

    Case Details:

    Case Caption: Mondella V. Schiffahrtsgesellschaft Oltmann MBH & Co. KG
    Docket Number: 1:20cv1059
    Court Name: United States District Court, New York Eastern
    Order Date: December 15, 2025
  • Nutrition Expert Was Allowed to Opine on the Use of Statutes and Regulations

    Nutrition Expert Was Allowed to Opine on the Use of Statutes and Regulations

    Plaintiffs are the estates of three decedents, Robert W. Petersen (“Mr. Petersen”), Mary Ann Simons, (“Ms. Simons”) and Charlotte Elaine Guilford (“Ms. Guilford”) (collectively, “Plaintiffs”). Plaintiffs were residents of Canyon Creek, an assisted living facility in Billings, Montana specializing in memory care, during the height of the COVID-19 pandemic in 2020. Plaintiffs alleged that Canyon Creek was negligent in the care of Mr. Petersen, Ms. Simons, and Ms. Guilford and that its negligent care caused their deaths.

    One of Plaintiffs’ allegations in this case is that Canyon Creek failed to ensure that Petersen and Simons maintained acceptable parameters of nutrition and hydration as required by state statute and federal regulation.

    Plaintiffs retained Janet McKee, a registered dietician, as their expert on the standard of care regarding how assisted living facilities monitor residents’ nutritional status and needs.

    However, Defendants filed a motion to exclude McKee’s testimony under Federal Rule of Evidence 702, arguing that her opinions exceed the scope of her qualifications, are based on insufficient facts and data, and are not supported by a reliable assessment of the applicable standard of care. Defendants next filed a motion in the alternative to limit McKee’s testimony. They first argued that she lacked the qualifications to offer medical causation opinions or to use statutes or regulations to establish a duty and should therefore be prohibited from proffering such opinions. Second, they argued that any testimony about, reliance upon, or reference to opinions and information first disclosed during McKee’s deposition should be excluded from trial pursuant to Federal Rules of Civil Procedure 26 and 37.

    Nutrition Expert Witness

    Janet Sutton McKee holds a Master of Science in Food, Nutrition, and Institutional Management and a Bachelor of Science in Home Economics Education. She is a registered dietician and nutritionist and holds licenses in nine states.

    Also, she is board certified as a specialist in gerontological nutrition and currently, she is the owner and manager of a nutrition and foodservice consulting company that services healthcare facilities, including acute care, skilled nursing and long-term care, residential psychiatric and behavioral treatment, and assisted living centers throughout the United States.

    Discover more cases with Janet McKee as an expert witness by ordering her comprehensive Expert Witness Profile report.

    Discussion by the Court

    A. Motion to Exclude Testimony of Plaintiffs’ Expert Janet McKee

    1. Qualifications

    McKee has delivered extensive educational programs and presentations nationwide for healthcare associations, industry conventions, and professional groups, covering topics including nutrition’s role in fall prevention, geriatric care, quality assurance, pandemic response, and liability reduction.

    Also, she has developed and taught nutrition courses at the university level and for healthcare professionals. Further, she has conducted and published clinical research and authored/co-authored numerous articles and chapters on clinical nutrition topics, liability risk management, and speciality dietetics.

    In other words, the Court held that McKee’s knowledge, skill, experience, and education are relevant to the opinions she offers regarding Canyon Creek’s dietary standard of care duties.

    2. Reliability

    The Court determined that McKee’s opinions satisfy the preponderance standard for admissibility, albeit marginally. First, McKee’s opinions are based on sufficient facts and data.

    Although McKee did not cite specific documents and conceded that she would have preferred to review additional material, the Court nonetheless acknowledges that her testimony appears grounded in record evidence, as shown by the “thousands of pages” she produced at her deposition.

    Moreover, McKee’s opinions reflected a reliable application of her experience, training, and education to the facts of the case. 

    For example, McKee opined that Canyon Creek failed to weigh Mr. Petersen on admission and that its negligence caused his weight loss, malnutrition, falls, dehydration, and pressure wounds, as well as a decreased quality and length of life. At deposition, however, she acknowledged not knowing when Petersen was admitted, not possessing his pre-admission records, and not being aware of his prior quality of life or whether he had preexisting pressure injuries. Absent this information, Defendants argued that her opinions are unreliable.

    However, McKee did offer opinions relevant to her experience and supported by the record regarding Petersen’s condition and treatment at Canyon Creek.

    Because McKee’s opinions rest on sufficient facts and data and reliably apply her expertise to the facts of this case, the Court denied Defendants’ motion to exclude.

    B. Alternative Motion to Limit Testimony

    1. Causation Opinions and Establishing a Duty

    In the alternative, Defendants next moved to limit, in limine, McKee’s testimony by prohibiting her from offering causation opinions or using statutes or regulations to establish a duty.

    a. Causation Opinions

    Defendants first argued that McKee should be prohibited from opining that Canyon Creek caused Plaintiffs’ medical diagnoses or that Canyon Creek “promoted” Plaintiffs’ medical outcomes.

    Plaintiffs did not intend to elicit a causation opinion from McKee. Therefore, the Court granted the alternative motion to limit testimony as to eliciting causation opinions.

    However, the Court agreed with Plaintiffs that McKee “is uniquely positioned to render an opinion on the risks attendant to poor nutrition.”

    b. Establishing a Duty

    Defendants next argued that McKee cannot use statutes or regulations to evidence a standard of dietary care because she only opined that Canyon Creek violated the cited statutes and regulations, not that the statutes and regulations embodied an applicable standard of care.

    Because McKee failed to identify laws embodying the standard of care, Defendants argued that she is not qualified to determine which statutes and regulations establish a duty applicable to Canyon Creek.

    Based on McKee’s testimony and qualifications discussed above, the Court allowed her to opine on how the regulations and statutes she identified inform the standard of care and create a duty in this case. Plaintiffs did not intend to elicit ultimate issue opinions from McKee.

    The Court denied the alternative motion to limit testimony as to McKee’s use of statutes and regulations to identify a standard of care and establish a duty.

    2. Federal Rules of Civil Procedure 26 and 37

    a. Rule 26

    The Court found that McKee introduced new opinions in her Violations Report and throughout her deposition that were neither adequately disclosed nor supplemented by Plaintiffs.

    After reviewing McKee’s Initial Report alongside her Violations Report, the Court found that though the documents are fundamentally aligned, they differ in breadth and scope, in their regulatory and legal framing, and in their identification of infection control and systemic failures.

    Disclosures by experts are not living documents that can be added to on a continuing basis. If the Court were to treat McKee’s disclosures in this fashion, then “the full disclosure requirement implicit in Rule 26 … would interfere with the Court’s ability to set case management deadlines, because new reports and opinions would warrant further consultation with one’s own expert and virtually require new rounds of depositions.”

    In addition to improper disclosure, Plaintiffs failed to adequately supplement McKee’s Initial Report under Rule 26(e). It is obvious that the additional material McKee relied on and the new opinions she formed after her disclosure far exceed the scope of Rule 26(e), that is—”correcting inaccuracies or filling the interstices of an incomplete report.”

    Accordingly, Plaintiffs violated Rule 26 when they failed to adequately disclose or supplement McKee’s Initial Report with the numerous new opinions from her Violations Report and the detailed analysis she provided at her deposition.

    b. Rule 37

    The Court found that the late disclosure was neither substantially justified nor harmless. Initially, the late disclosure deprived Defendants of a meaningful opportunity to prepare for, examine, and respond to McKee’s new opinions at her deposition. True, Plaintiffs complied with Defendants’ subpoena. However, had Defendants not subpoenaed McKee, they may not have learned about the new materials she relied on or her new opinions until trial. Plaintiffs offer no reason why the additional materials or new opinions were not properly supplemented under Rule 26(e) before McKee’s deposition, and therefore, the late disclosure was not justified.

    The Court next rejected Plaintiffs’ contention that the late disclosure was harmless because Defendants violated the parties’ agreement not to produce expert notes.

    McKee’s “notes” advanced her opinions far beyond the scope of her summary analysis in her Initial Report. And even though Defendants have known the totality of McKee’s opinions for over a year, it was Plaintiffs’ duty to adequately disclose and supplement under Rule 26.

    Here, the Court ultimately concluded that the risk of any prejudice to Defendants at trial is mitigated by two factors. First, despite Plaintiffs’ procedural infraction, Defendants have had adequate time to prepare for trial since they learned of McKee’s late disclosure 15 months ago. Second, expert testimony is an essential component to litigating the parties’ case; as such, there are less drastic sanctions available than striking portions of McKee’s opinions that would promote a fair trial. The jury should be allowed to weigh the entirety of Plaintiffs’ experts’ opinions.

    Therefore, the Court elects to impose the lesser sanction of allowing Plaintiffs to file McKee’s supplemental expert report and allowing Defendants to reopen McKee’s deposition.

    Held

    (1) The Court denied the Defendants’ motion to exclude the testimony of Plaintiffs’ expert Janet McKee.

    (2) The Court granted in part and denied in part the Defendants’ alternative motion to limit testimony.

    Key Takeaway

    Although certain aspects of McKee’s testimony may lack foundation in pre-admission records or prior medical history, her analysis of Canyon Creek’s care practices are nonetheless grounded in her professional experience and supported by the record. Therefore, her opinions are reliable.

    Please refer to the blogs previously published about this case:

    Palliative Care Expert’s New and Expanded Opinions on Facility Neglect Admitted

    Economics Expert Was Allowed to Opine on Assisted Living Facility Administration Issues

    Case Details:

    Case Caption: Estate Of Robert W. Petersen Et Al V. Koelsch Senior Communities LLC
    Docket Number: 1:22cv11
    Court Name: United States District Court, Montana
    Order Date: December 12, 2025
  • Accounting Expert was Allowed to Opine on the Fair Market Value

    Accounting Expert was Allowed to Opine on the Fair Market Value

    Upper Deck claimed that Pixels has marketed and sold wall décor featuring images that infringe upon Upper Deck’s trademarks and Michael Jordan’s name, image, likeness, and publicity rights. Basically, Upper Deck brought this action pursuant to an exclusive agreement with Jordan (the “Jordan Agreement”) for the use of his name, image, likeness, and other publicity rights. Upper Deck asserted that the agreement also gives Upper Deck the right to commence actions on behalf of Jordan for infringement of the rights assigned in the Jordan Agreement.

    Amongst other things, Upper Deck alleged violation and deprivation of the right of publicity, violations of the Lanham Act, registered trademark infringement, violation of California’s Unfair Competition Law, and California common law unfair competition. 

    Christian Tregillis was retained as a damages expert by Upper Deck to opine on the fair market value of Pixels’ alleged unauthorized use of Jordan’s rights. Pixels filed a motion to exclude Tregillis’ testimony, contending that his methodology is unreliable and based upon insufficient facts and data.

    Pixels also contended that the premium multiplier Tregillis uses in his fair market value calculation is unreliable and that Tregillis’s two “Evidence Indicates” opinions are irrelevant.

    Accounting Expert Witness

    Christian Dale Tregillis holds an M.B.A. in Finance and Accounting. He has more than thirty years of experience analyzing financial, accounting, economic, statistical, and market issues, primarily relating to disputes, valuations, and license agreements covering intellectual property rights.

    Tregillis has held leadership positions with many public accounting and licensing professional groups. He is also accredited in Business Valuation and certified in Financial Forensics, Public Accounting, and Licensing.

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

    Discussion by the Court

    A. Methodology

    Tregillis calculated the fair market value of Pixels’ use of Jordan’s rights by analyzing comparable licenses for rights similar to those used by Pixels as a starting point to construct a hypothetical license.

    Tregillis then adjusted the value of the benchmark comparable license to account for the other athletes included in the benchmark license, the length of time of Pixels’ use, and the fact that Pixels’ use of Jordan’s rights was not subject to any quality assurance or approval clauses. Pixels argued that the benchmark agreement chosen by Tregillis is insufficiently comparable and that Tregillis made improper assumptions to inflate the value of the benchmark license.

    1. Underlying Facts and Data

    Tregillis determined the Trends Agreement to be the most comparable to the facts at issue here and uses this agreement as the benchmark for his hypothetical license analysis. The Trends Agreement was a licensing agreement between Brevettar, described as “the exclusive licensing agent for Upper Deck,” and Trends International, LLC. The Trends Agreement granted Trends a license to manufacture, distribute, and sell collector’s edition posters and calendars featuring the name, image, likeness, signature, and statistical data of Michael Jordan, Wayne Gretzky, and Tiger Woods. A later amendment to the Trends Agreement also allowed Trends to sell canvas wall décor.

    Pixels argued that the Trends Agreement is an improper comparable because Upper Deck was not a party to it, Upper Deck did not receive royalty payments from the agreement, and the Trends Agreement was not effective until two and a half years after Pixels alleged unauthorized sales began.

    Here, the Trends Agreement concerned the same rights at issue in this case, Jordan’s name, image, likeness, and publicity rights. Further, the Trends Agreement covered the same types of products as those at issue here—posters, calendars, and wall décor. The Trends Agreement also covered products similarly priced to those sold by Pixels. Consequently, the Court found the Trends Agreement sufficiently comparable to serve as a reliable basis for the hypothetical license analysis Tregillis conducts.

    2. The Premium Multiplier

    After identifying the Trends Agreement as the best benchmark for his hypothetical license analysis, Tregillis used a premium multiplier to adjust for the fact that Pixels’ use of Jordan’s rights was not authorized and not subject to the quality assurance and approval clauses typically included in Jordan’s licensing agreements.

    Tregillis calculated this multiplier by comparing two similar situations where Jordan’s rights were used, one of which was authorized (the “Hanes Transaction”) and one of which was unauthorized (the “Panini Settlement”). ) Tregillis compared the values of those transactions to calculate the percentage premium for unauthorized uses of Jordan’s rights.

    Pixels argued that the application of this premium multiplier is unreliable and that the Hanes Transaction and Panini Settlement are not reliably comparable to the conduct at issue here.

    Tregillis demonstrated the necessity of this premium adjustment by discussing Jordan’s carefully tailored brand and restrictive approach to licensing agreements.

    Then, Tregillis conducted a comparative analysis using otherwise analogous transactions to calculate the value of unauthorized uses of Jordan’s rights. This analysis is grounded in evidence, and Tregillis’s application of his analysis logically follows. Therefore, the premium multiplier calculation and its application to the hypothetical license are sufficiently reliable to present to a jury. 

    Tregillis spent paragraphs of his report, supported by citations to the record, discussing the Hanes Transaction and Panini Settlement as well as how he used them in his analysis.

    Tregillis did not use the Hanes Transaction and Panini Settlement as comparable to this case for the purpose of hypothetical license analysis; rather, he uses them in a comparative analysis to determine the value of Jordan’s rights when their use is not subject to any quality assurance or approval clauses.

    B. The “Evidence Indicates” Opinions

    Tregillis offered two “Evidence Indicates” opinions. First, “Evidence indicates that, as Upper Deck values its relationship with Jordan, one of the world’s most iconic athletes and personalities, Upper Deck protects both its rights and Jordan’s rights, while also ensuring it only produces and/or approves high-quality products that feature appropriate and value-enhancing uses of Jordan’s rights of publicity and trademarks.” And second, “Evidence indicates that the use made by Pixels is unauthorized and would not have been authorized by Jordan and/or Upper Deck.” Pixels argued that these opinions are irrelevant and should be excluded.

    The Court found that the two “Evidence Indicates” opinions will aid the jury in understanding Tregillis’ hypothetical license analysis. The “Evidence Indicates” opinions shed light on the fair market value of Jordan’s rights as Pixels used them and demonstrate the necessity of the premium multiplier. More specifically, the opinions will help the jury to understand how Upper Deck and Jordan value Jordan’s rights and typically license them.

    Pixels argued that the second “Evidence Indicates” opinion “is a naked attempt to elevate Upper Deck’s allegations of unauthorized use by Pixels into a liability opinion against Pixels.”

    The Court agreed that Tregillis’ second “Evidence Indicates” opinion goes to brand standards and addresses how the fair market value of Jordan’s rights is impacted when subject to quality assurance and approval clauses.

    However, grounding the second “Evidence Indicates” opinion in language about “authorization” toes the line of embodying a legal conclusion. Accordingly, while the Court found that Tregillis is not offering a legal conclusion, his testimony at trial should make clear that Tregillis is merely assuming Pixels’ liability for the purposes of his analysis and is offering opinions about authorization solely to support his damages analysis, not to offer a legal conclusion. 

      Held

      The Court denied Defendant Pixels.com’s motion to exclude the testimony of Plaintiff The Upper Deck Company’s expert witness, Christian Tregillis.

      Key Takeaway:

      Any lingering doubts as to the negative impact of Tregillis’s testimony can be managed by instructing the jury to follow only the judge’s instructions as to what the law is and to disregard any testimony that is inconsistent with those instructions.

      Case Details:

      Case Caption: The Upper Deck Company V. Pixels.Com, LLC
      Docket Number: 3:24cv923
      Court Name: United States District Court, California Southern
      Order Date: December 09, 2025