Plaintiff, Wendy Marie Henshaw alleged that she slipped and fell on a liquid substance on Defendant Wal-Mart’s premises on October 28, 2021.
Henshaw filed a motion to strike Defendant’s expert witness Dr. Marc Fredric Glickstein. Henshaw noted that Defendant timely served its expert witness disclosure and listed Glickstein as an expert in diagnostic radiology; however, Defendant did not provide Plaintiff with Glickstein’s report.
Defendant contended that Glickstein has not yet prepared a report. Since Defendant is in the process of obtaining records and diagnostic studies for his review, the report will be provided to Plaintiff once it is completed.
Radiology Expert Witness
Marc Glickstein, MD, FACR, is a partner in a large private practice radiology group, on the senior medical staff of 8 area hospitals, and an assistant clinical professor of Radiology at University of CT School of Medicine. He has over 27 years of active clinical involvement in Neuroradiology, as well as General Radiology including MRI, Mammography, CT, and Ultrasound.
Rule 26 clearly states that, “Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness.” Rule 37 makes it clear that the party that failed to comply with Rule 26(a) bears the burden of establishing that its non-disclosure was either substantially justified or harmless.
The Court held that Defendant has both failed to comply with Rule 26(a) and failed to show that its non-disclosure was either substantially justified or harmless. Consequently, Defendant will be prohibited from using Glickstein to supply evidence on a motion, at a hearing, or at trial.
Held
The Court granted Plaintiff Wendy Marie Henshaw’s motion to strike Defendant’s expert, Dr. Marc Frederic Glickstein. Consequently, Glickstein was stricken from Defendant’s expert witness disclosure.
Key Takeaway:
Despite timely serving its expert witness disclosure, Defendant did not provide Plaintiff with Glickstein’s report. Defendant also failed to show that its non-disclosure was either substantially justified or harmless.
In February 2016, Plaintiffs-Appellants Scott Miller and Michael Spaulding, two Seattle Police officers, fatally shot Che Andre Taylor, a Black man, as they tried to arrest him. Four days after the shooting, Defendant-Appellee Kshama Sawant, then a member of the Seattle City Council, told a crowd of protestors in front of the Seattle Police Department Headquarters that Taylor’s shooting was a “blatant murder at the hands of the police.” Following an inquest into Taylor’s killing, prosecutors declined to file criminal charges against Miller and Spaulding on the ground that there was insufficient evidence to prove that they killed Taylor with the requisite “malice” to be guilty of criminal homicide, as required by Washington law. Roughly three months after the inquest concluded, Sawant told a crowd of protestors that Taylor was “murdered by the police.”
Miller and Spaulding filed suit in federal court, alleging state law claims for defamation and outrage (i.e., intentional infliction of emotional distress), as well as “federal defamation,” against Sawant.
The district court dismissed the “federal defamation” claim when it granted Sawant’s motion for partial judgment on the pleadings, but chose to exercise supplemental jurisdiction over the remaining state law defamation and outrage claims. The district court granted Sawant’s motion for summary judgment as to the state law defamation and outrage claims, and Miller and Spaulding appealed the district court’s grant of that motion.
The appellate court affirmed the district court’s grant of Sawant’s motion for summary judgment but considered whether the district court erred when it granted Sawant’s motion for recovery of expert witness deposition expenses, which included fees for time spent in preparation for deposition.
Law Enforcement Expert Witness
Professor Gregory Gilbertson (Ret.) is an expert witness in police practices. He specializes in police use of force, false arrest, officer misconduct, criminal and self-defense casework. He is also a former SWAT team officer, senior patrolman, stakeout squad officer, juvenile investigator, school resource officer, private investigator, and Guardian ad Litem.
Lisa Daugaard is an American criminal justice reform activist. She is the director of the nonprofit organization Public Defender Association and a commissioner of the Community Police Commission in Seattle. She received a 2019 MacArthur Fellowship for her criminal justice reform work.
Sawant sought payment of the fees her expert witnesses had incurred in responding to Miller and Spaulding’s discovery
In December 2022, Miller and Spaulding deposed two witnesses who Sawant identified as experts in her initial disclosures. Sawant had retained the identified experts as potential defense witnesses. That same month, Sawant sent Miller and Spaulding the experts’ invoices and requested payment for the fees her expert witnesses had incurred in responding to Miller and Spaulding’s discovery, including time spent preparing for the deposition. Sawant sought payment of the fees pursuant to Federal Rule of Civil Procedure 26(b)(4)(E).
However, Miller and Spaulding failed to provide payment. Sawant covered the costs after Plaintiffs refused to pay, and filed a motion to compel payment.
As relevant here, the expert witness deposition fees Sawant sought included compensation for time the witnesses had spent preparing for their depositions.
Specifically, Sawant sought $1,367.50 for Professor Gregory Gilbertson’s expert witness deposition fees and $1,770.00 for Lisa Daugaard’s expert witness deposition fees.
In June 2023, the district court granted Sawant’s motion, noting there is no clear guidance from the Ninth Circuit regarding whether the reimbursement of preparation time is permitted under Rule 26, but concluding that Sawant’s request was reasonable, that awarding the fees “falls squarely within the ambit of Rule 26(b)(4)(E),” and that no manifest injustice would result from awarding the fees.
Miller and Spaulding’s objected to the admissibility of Daugaard’s opinions
To begin with, the plain text of Rule 26 provides that a district court “must require” that a deposing party pay “a reasonable fee for time spent in responding to discovery” by “an expert whose opinions may be presented at trial.” The Court held that Miller and Spaulding’s objection to the admissibility of Daugaard’s opinions did not obviate their obligation to pay Daugaard a reasonable fee under Rule 26.
Expert witness deposition preparation fees that were awarded to Sawant were reasonable and their award did not result in manifest injustice
Miller and Spaulding also argued that the district court erred when it granted Sawant’s motion for expert witness deposition fees for Gilbertson’s and Daugaard’s time spent preparing for their depositions. That is, Miller and Spaulding maintained that Rule 26(b)(4)(E) permitted expert fees only for time spent during a deposition, and not for time spent preparing for a deposition.
The Court held that Miller and Spaulding’s suggestion that such fees are never recoverable cannot be squared with Rule 26’s plain text, which requires the “party seeking discovery” to “pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A).”
Moreover, Miller and Spaulding raised several policy concerns based on “costs and incentives” and “the potential for abuse” if deposition preparation fees are recoverable. But the policy concerns they raised are addressed by Rule 26’s existing textual limitations on recoverable fees: namely, that fees must be “reasonable,” and their award must not result in “manifest injustice.” Gilbertson spent only 2.5 hours preparing and Daugaard only 2.2 hours, and Miller and Spaulding did not contest the fairness of Gilbertson’s and Daugaard’s hourly rates.
Held
In conclusion, the appellate court concluded that the district court did not err when it granted Sawant’s motion for recovery of her expert witnesses’ deposition fees.
Key Takeaway:
Therefore, the plain text of Federal Rule of Civil Procedure 26 allows for the recovery of reasonable expenses for the time an expert witness, whose opinions may be presented at trial, spends preparing for a deposition. Plaintiffs’ objection to the admissibility of the expert’s opinions did not obviate their obligation to pay the expert a reasonable fee under Rule 26.
Case Details:
Case Caption:
Scott Miller V. Kshama Sawant
Docket Number:
2:18cv506
Court:
United States Court of Appeals for the Ninth Circuit
Plaintiff, a long-time employee of Chevron, filed his First Amended Complaint on August 22, 2023 and alleged that Chevron’s Pascagoula Refinery had been marred by racism and sexism, that his contributions to the company exceeded his compensation, and that “discriminatory practices have prevented him from being promoted.”
The issue before the Court is whether the expert witness report for Plaintiff’s damages expert should be stricken. On July 19, 2024, Plaintiff designated Charles Baum as a damages expert and provided Defendant with a copy of Baum’s expert report.
Defendant argued that Baum’s report ran afoul of Fed. R. Civ. P. 26(a)(2)(B)(ii) as the report “failed to identify all the documents upon which Baum relied in forming his expert opinions.” Specifically, Defendant contended that the following documents relied upon by Plaintiff’s expert were not clearly identified in the expert report nor were they produced by Plaintiff: (i) Income tax statement for [Plaintiff] for 2023 (ii) Chevron employee savings investment plan (January 1, 2014) (iii) Chevron employment benefits for [Plaintiff] (various dates).
Economics Expert Witness
Charles L. Baum II is a professor of economics and finance at Middle Tennessee State University. Moreover, he has a Ph.D. in economics from the University of North Carolina at Chapel Hill. In addition, he holds both a B.A. in political science and a B.A. in economics from Wake Forest University.
Regarding the “Income Tax Statement for [Plaintiff] for 2023,” Defendant claimed that Plaintiff has not produced any tax-related records for 2023.
The Court held that Defendant should not be obligated to engage in guesswork as to which document may (or may not) be the “Income Tax Statement for [Plaintiff] for 2023” relied upon in Baum’s expert report. Nor should the Court. Accordingly, the Court found that the document identified as “Income Tax Statement for [Plaintiff] for 2023” was not properly disclosed in Baum’s expert report.
Chevron employee savings investment plan (January 1, 2014)” and “Chevron employment benefits for [Plaintiff] (various dates)
As to the other documents, Defendant asserted that Plaintiff has not produced any employee savings investment plan dated January 1, 2024, nor any documents related to “employment benefits” for any date.
It is Plaintiff’s obligation under Fed. R. Civ. P. 26(a)(2)(B)(ii) to disclose “the facts or data considered by” Baum in forming his opinion. Plaintiff has not convinced the Court that he provided Defendant with the documents titled “Income tax statement for [Plaintiff] for 2023,” “Chevron employee savings investment plan (January 1, 2014),” or “Chevron employment benefits for [Plaintiff] (various dates)” as relied upon in Baum’s expert report.
Authority to Strike
Under Rule 37(c)(1), a party who fails to provide information required by Rule 26(a) “is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.”
Turning to the first factor, and as noted above, Plaintiff does not explicitly dispute whether he provided the documents at issue that were relied upon in Baum’s expert report. Rather, he contends that Defendant either possessed the documents at issue or that it was obligated to produce them. Plaintiff ignores the mandates of Fed. R. Civ. P. 26(a)(2)(B)(ii) which demands that he provide the documents relied upon in Baum’s written report. This factor weighs in favor of exclusion.
As for the second factor, Baum’s testimony is certainly important. Baum is the only expert designated by Plaintiff to support any evaluation of damages in this matter. This factor weighs against exclusion.
As for the third factor, Defendant contends that, without an adequate report, it has been prejudiced. Specifically, Defendant argues that it has been prevented from “adequate[ly] prepar[ing] for its expert designation, which is due August 20, 2024.” This factor slightly favors exclusion, but, as discussed below, any such prejudice can be cured. Finally, the Court may cure any prejudice to Defendant by allowing Plaintiff to supplement Baum’s report and by granting an extension of Defendant’s expert designation deadline.
On balance, the Court found that striking Baum’s report is too harsh a remedy under the circumstances.
Held
In conclusion, the Court granted in part and denied in part the Defendant Chevron U.S.A., Inc.’s motion to strike the report of Plaintiff’s expert economist, Charles Baum.
Key Takeaway:
First, the mere fact that the information relied upon in the report is public information does not absolve Plaintiff from disclosing it.
Second, Plaintiff ignored the mandates of Fed. R. Civ. P. 26(a)(2)(B)(ii) which demanded that he provide the documents relied upon in Baum’s written report.
Case Caption:
Harness V. Chevron U.S.A., Inc.
Docket Number:
1:23cv210
Court:
United States District Court, Mississippi Southern
This action stems from a trip and fall incident that occurred on July 19, 2019, while Plaintiff, Carolyn Simmons was walking and tripped along a dangerous and defective sidewalk located in front of Rite Aid in Ridgeland, South Carolina. The Defendant, Rite Aid of South Carolina, Inc., Walgreens, and Sitaras and Tzioros Properties, Inc., (hereafter referred to as “Defendant”), is a national drug store chain located in Ridgeland, State of South Carolina.
Defendant Sitaras and Tzioros Properties, Inc.’s (hereafter “Defendant”) filed a motion to exclude the testimony of Plaintiff’s expert Gerald Neal.
Construction Expert Witness
Gerald Neal is licensed general contractor with eighteen years of experience in project management and facilities engineering. Moreover, he has extensive experience constructing and renovating homes, offices, apartments, restaurants, and churches.
While the case was still pending in state court, Plaintiff identified Neal as an expert witness and indicated, in response to Defendants’ interrogatories, that Neal was “compiling” documents and would forward these upon receipt.
After the case was removed to United States District Court, the Plaintiff’s expert report was due by March 26, 2024. According to Defendant’s motion, no expert report meeting Rule 26(a)(2)(B) requirements had been produced by Plaintiff under the Court’s scheduling order.
Also, Neal was deposed while the case was still pending in state court. Besides, he stated in his deposition that he lacked certain important information that was necessary to finalize his opinions. Specifically, Neal testified that he needed the date of the building’s certificate of occupancy because that would determine the specific building code that was applicable to this incident.
Subsequently, Defendant filed its motion to exclude more than two months after the deadline in the scheduling order for the production of expert reports. Defendant’s assertions that it has never been provided an expert report from Neal and that his deposition testimony was “incomplete and inconclusive” have gone unchallenged by Plaintiff since no response to the motion to exclude was filed.
Ultimately, the Court found that no good cause or substantial justification has been shown for the failure to timely produce an expert report and the failure to comply has not been shown to be harmless.
Held
To conclude, the Court granted Defendant’s motion to exclude the testimony of Gerald Neal as an expert witness at trial.
Key Takeaway:
To conclude, the Court found that no good cause or substantial justification had been shown for the failure to timely produce an expert report. Furthermore, the failure to comply has not been shown to be harmless.
In short, when considering a motion to exclude an expert witness for failure to produce a required expert report, the Court must address two applicable rules. First, Fed. R. Civ. P. 16(b)(4) provides that a scheduling order may be modified only “for good cause and with the judge’s consent.” Second, even where a timely expert report has not been produced, an expert will not be excluded so long as the failure to timely produce the report is “substantially justified or is harmless,” as per Fed. R. Civ. P. 37(c)(1).
Plaintiff Kevin Strickland filed this lawsuit against the Kansas City, Missouri, Board of Police Commissioners and five Kansas City police officers for alleged unconstitutional conduct that resulted in his wrongful conviction.
On June 21, 2024, Plaintiff issued its police practices expert, Russell Fischer’s supplemental report. The supplemental report is 2.5 pages long, and the revisions are made based on three third-party deposition transcripts that Fischer states were not available to him at the time of his initial report dated April 5, 2024. The relevant deposition transcripts are those of Pete Edlund (deposed on April 3); Alfred Gordon (deposed on May 13); and Bridgett Gordon (deposed on May 13). Pete Edlund was a KCPD homicide detective who investigated the 1978 triple homicide. Alfred and Bridgett Gordon were both interviewed by the KCPD during the triple homicide investigation.
Defendants moved to strike the supplemental report, arguing it contained new opinions untimely disclosed in violation of Rule 26(e).
Law Enforcement Expert Witness
Russell Fischer retired as the Chief of the Criminal Investigations Division specifically in charge of all investigative matters relating to homicide, robbery, sex crimes, domestic crimes and related functions task force operations.
The Court held that the parties’ pretrial disclosures under Rule 26(a)(3) were not yet due, so the issue was whether the Supplemental Report contained “entirely new opinions” as Defendants alleged or rather newly discovered information that merely “completed” the initial report. To begin with, Defendants failed to provide specific examples of how the Supplemental Report provided “entirely new opinions,” and the Court found none. Both reports opined on whether officers deviated from minimally acceptable police practices during the homicide investigation. The Supplemental Report merely considered Alfred and Bridgett Gordon and Pete Edlund’s version of events in opining on the same.
Defendants also took issue with the fact the Supplemental Report was disclosed after the discovery deadline passed and after Defendants’ deadline to depose Fischer. While the timing was not ideal, Plaintiff maintained two of the three deposition transcripts were not available until the day discovery closed, making it impossible to provide the Supplemental Report beforehand. Plaintiff also added that Defendants have never attempted to take Fischer’s deposition to date.
The Court denied the Defendants’ motion since finding supplementation will best serve the purposes of Rule 26.
To ensure Defendants were not disadvantaged in any way, the Court permitted Defendants to depose Fischer out of time.
Held
The Court denied the Defendants’ motion to strike as untimely and improper the supplemental report of Plaintiff’s expert witness, Russell Fischer.
Key Takeaway:
Rule 26(e)(1) provides that “a party who has made a disclosure under Rule 26(a) must supplement or correct its disclosure in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.”
However, Rule 26(e) does not provide a vehicle for parties to merely “revise or change its disclosures,” “to bolster an expert’s opinion,” or “to present entirely new theories.”
Case Details:
Case Caption:
Strickland V. Kansas City, Missouri Board Of Police Commissioners Et Al
This Federal Tort Claims Act (FTCA) case arises out of an accident that occurred on January 5, 2021 between Plaintiff Avery Stinson and a U.S. Postal Service tractor-trailer driven by Stewart Henry. When the accident occurred, Plaintiff was operating a bicycle on a sidewalk and attempting to cross an intersection. At the same time, a U.S. Postal Service tractor-trailer was traveling in the same direction parallel to the sidewalk and initiated a right turn at the same intersection.The bicycle collided with the trailer portion of the tractor-trailer, and Plaintiff sustained injuries as a result of the accident.
Dean Nance has applied his training, experience, and skills in Accident Reconstruction on 100’s of motor vehicle crashes as a member of the Texas Department of Public Safety as a Trooper. During his service with the Texas Department of Public Safety, he completed all 6 Levels of training in Accident Reconstruction. He owns an Accident Reconstruction Investigations Company, and is licensed through the Texas Department of Public Safety Private Security Bureau as a Private Investigations Company.
Nance is also a member of professional societies which specialize in Accident Reconstruction: (TAARS) Texas Association of Accident Reconstruction Specialist, The Laser Scanner Forum, The American Association of Notaries, The Khan Academy of Science and Engineering, and The Crash Forum Group.
Nance’s report failed to meet the requirements of Rule 26(a)(2)
Defendant argued that Nance’s report failed to provide “a complete statement of all opinions the witness will express and the basis and reasons for them” and “the facts or data considered by the witness in forming them” as required by Rule 26.
The Court held that Nance’s report listed his qualifications as an accident reconstructionist and the evidence he reviewed and the tasks he performed in reaching his conclusions. For example, the report stated that Nance “documented the crash scene” and “made a map of the crash scene location using Google Earth Pro.” The report identified materials he consulted such as excerpts from J.J. Keller Truck Driving Training Manual and Smith System Driver Study Guide.
Plaintiff also provided Nance’s curriculum vitae, listing professional experience, specialized training and certificates, awards received, and state and federal court testimony as an accident reconstructionist.
Defendant also moved to strike Nance’s opinions in his report on the ground that the report “promoted an objectively false narrative without evidentiary support.” However, Defendant’s objection to Nance’s report as a “false narrative” amounted to a dispute regarding the facts Nance considered and the conclusions he reached. The Court held that these objections were not a basis to exclude his testimony under Rule 26(a)(2)(B).
Nance’s opinions were “conclusory, lacked evidentiary support, and were unreliable and inadmissible” under Rule 702 and Daubert
Defendant’s motion to exclude Nance’s testimony under Rule 702 and Daubert did not challenge Nance’s qualifications. Instead, Defendant argued that Nance’s “disregard of the evidence and his objectively false narrative” warranted the exclusion of his testimony.
The Court held that objections like those raised by Defendant “relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility.”
Held
The Court denied the Defendant’s motion to exclude Plaintiffs’ expert Dean Nance.
Key Takeaways:
The factfinder generally should “hear the expert’s testimony and decide whether the predicate facts are accurate.”
Since the case will be tried before a judge and not a jury, most of the safeguards provided for in Daubert are not as essential.
The first-party lawsuit originated from a collision involving multiple vehicles on May 2, 2017. Plaintiffs Steve Watkins (“Mr. Watkins”) and Lisa Watkins (“Ms. Watkins”) were traveling in a vehicle in Harris County, Texas, when they were struck from behind and pushed into the vehicle in front of them. They were in the process of taking Ms. Watkins for a medical procedure. The Watkins asserted that another driver, Lucas Love, was at fault for the accident, and that he was “underinsured.” Mr. Watkins suffered a broken thumb. Mr. Watkins sought underinsured motorist (“UIM”) coverage benefits from Hartford Accident and Indemnity Company (“Hartford”) for his alleged injuries, and Ms. Watkins asserted a bystander claim.
The Watkins had designated Dr. Shelly N. Savant, MD, CLCP, to provide expert testimony and a life care plan for Steve Watkins. Savant also purported to opine regarding Mr. Watkins’s prognosis, diagnostic and therapeutic necessities, and the alleged causal connection between his injuries and the accident. She had provided a life care plan, which included a plan for future medical treatment, an opinion on causation, opinions regarding the diagnosis and treatment history of Steve Watkins, and an estimate of the costs of purported future medical treatment.
Hartford filed a motion to exclude the testimony of Shelly Savant, claiming Savant was not qualified to testify as an expert on causation because her opinions were not based upon a reliable foundation and were nothing more than speculation.
Hartford also contended that Savant’s disclosure failed to comply with Federal Rule of Civil Procedure Rule 26 because the Watkins had not provided the facts or data considered by Savant in arriving at her opinions in this case. According to Hartford, without reliable factual data, Savant’s testimony contained analytical gaps and was speculation.
Life Care Planning Expert Witness
Shelly N. Savant is a board-certified neurologist and psychiatrist practicing in the private sector since 2005. As a neurologist and psychiatrist, she has the specialized skills and knowledge to diagnose and provide medical treatment for a diverse range of problems, including neurological and psychiatric emergencies as well as long-term care of chronic illnesses.
She is also a certified life care planner and, as part of her private practice, she performs medical evaluations (interviews and/or examinations) for the purpose of providing additional medical opinions relating to diagnoses, prognosis, diagnostic and therapeutic necessities, and causation in the fields of neurology and psychiatry as well as develop life care plans for evaluees at the request of the referral sources.
Discussion by the Court
Moreover, Hartford argued that Savant’s testimony and purported life care plan were at odds with Mr. Watkins’ advice from medical providers and at odds with his own behavior. For instance, Dr. Varon, Mr. Watkins’s surgeon, did not include any recommendations for long-term medications, nor did he provide a referral for pain management in any of his records. Yet, Savant found a need for Mr. Watkins to undergo physical therapy, occupational therapy, blood tests, MRIs, x-rays, long-term pain medication, orthopedic surgery, primary care, pain psychology evaluations, and steroid injections for the rest of his life despite the fact that Mr. Watkins had not sought any of the treatments that Savant stated would be necessary since the accident on May 2, 2017.
Mr. Watkins noted that Savant’s deposition had not yet taken place at the time of Hartford’s motion to strike, and that any flaws in Savant’s initial disclosure did not prejudice Hartford because Hartford was still able to hire an expert and provide a rebuttal report. Mr. Watkins maintained that Savant was qualified and had reliably applied the life planning principles and methodology to this case. She was both a board-certified neurologist and psychiatrist and a Certified Life Care Planner, had substantial post-graduate medical training in life care planning, and was a member of the International Association of Rehabilitation Professionals.
The Court found that excluding Savant’s testimony was not the proper remedy for the Rule 26 deficiencies alleged by Hartford because it had adequate notice of the facts relied upon by Savant and was able to designate a counter-expert.
Assuming that Watkins could demonstrate that Savant applied her expertise to case specific-facts, the Court declared it best to resolve Hartford’s objections through cross-examination at trial.
Held
The Court denied Hartford’s motion to exclude testimony of Plaintiff’s expert Shelly Savant.
Key Takeaway:
The Court does not consider a Rule 26 deficiency if the opposing party had adequate notice of the facts the expert in question relied upon, especially to the extent of being able to designate a counter-expert.
Case Details:
Case Caption:
Watkins Et Al V. Hartford Accident And Indemnity Company
Plaintiff Duane Anthony Beyenhof alleged that his former employer Defendant Schwan’s Consumer Brands, Inc. (“Schwan’s”) wrongfully terminated him in retaliation for reporting illegal activity at work and because of his age.
Schwan’s claimed he was terminated for not wearing a seatbelt in violation of Defendant Schwan’s Consumer Brands, Inc.’s (“Schwan’s” or “Defendant”) zero tolerance Seat Belt Policy.
Defendant Schwan’s Consumer Brands, Inc. requested the Court to issue an order in limine excluding the testimony of and any reference to the expert reports of Plaintiff Duane Beyenhof’s designated experts, Heather H. Xitco and Anthony E. Reading as they did not meet the admissibility requirement of the Federal Rules of Evidence (“FRE”) 702 and would have presented evidence that was needlessly cumulative and unduly prejudicial to Defendant.
Psychology Expert Witness
Anthony E. Reading is a licensed psychologist in the State of California. He is a Clinical Professor in the Department of Psychiatry at the David Geffen School of Medicine at UCLA. He is a member of the American Psychological Association, the California State Psychological Association, the British Psychological Society.
Click here to purchase Anthony Reading’s Expert Challenge Study and learn about the 86 cases where his testimony has been subjected to a challenge.
Finance Expert Witness
Heather H. Xitco is a Principal with Dolan Xitco that provides litigation support, financial analysis, and expert testimony. She holds a Bachelor’s degree in Economics from the University of Southern California and a Master’s in Business Administration, with an emphasis in Finance, from the University of San Diego. She is a practicing Certified Public Accountant in California with a Certification in Financial Forensics (CFF).
Heather Xitco’s testimony has been challenged in more than 50 cases in the past. You can click here to order an Expert Challenge Study on Ms. Xitco and learn all about the grounds of challenge, outcomes, retaining and opposing attorneys and more.
Discussion by the Court
Under Federal Rule of Evidence 703, an expert witness can base opinions upon inadmissible hearsay evidence if that evidence is reasonably relied upon by experts in the same field on the same subject. Here, Defendant was concerned that both Xitco and Reading relied on Plaintiff’s statements to form their opinions.
Court Should Exclude the Testimonies Of The Plaintiff’s Experts because They Do Not Offer Any Testimony that is Sufficiently beyond Common Experience or Knowledge That Would Assist the Trier of Fact
The Plaintiffs retained Xitco to “present evidence related to Plaintiff’s economic damages, including past, present, and future lost wages and benefits, and Defendant’s finances.”
The Defendant argued that in determining Plaintiff’s lost earnings and benefits, Xitco merely relied on his previous wages, bonus, and benefits, and then factored in an estimated 2% growth based on his past wage increases. Accordingly, the calculations in Xitco’s report were simple mathematical calculations that a non-expert witness can just as easily explain and a juror can calculate.
The Defendant alleged that Readings’ Rule 26 Report was essentially an overview of his initial—and only—consultation with Plaintiff. He based his conclusion of Plaintiff experiencing a Major Depressive Disorder following his termination on Plaintiff’s self-reported feelings. Reading failed to exhibit the level of care required in his field due to his singular visit with Plaintiff.
After reviewing the reports, the Court found that the evidence relied upon is of the kind reasonably relied upon by experts in the same fields on the same subjects.
The Court held that Defendant’s concerns about the reliability of Reading’s methods concerned the weight of the testimony, not the admissibility. It also found that Xitco’s expert testimony assisted the jury under Rule 702 by aiding the understanding of damages.
The Court should exclude Reading Because Plaintiff Failed to Comply to FRCP Rule 26(a)(2)(A-D)
Defendant filed a motion to exclude specifically Reading’s expert testimony and report because Plaintiff failed to comply with Federal Rule of Civil Procedure 26(a)(2)(A-D). Concerning failure to comply with Federal Rule of Civil Procedure 26(a)(2)(A-D), federal courts have the discretion to exclude expert witness testimony due to an untimely or inadequate expert disclosure.
The Court held that exclusion of the entire testimony would be unjustified, considering Plaintiff provided Reading’s Report on April 20, 2023, a year before the set trial date on March 5, 2024. Defendant had ample time to review the supplemental testimony.
Held
The Court denied the motions to exclude Finance Expert Witness Heather Xitco and Psychology Expert Witness Anthony Reading.
The Court dismissed the case on March 04, 2023.
Key Takeaways:
Admissibility under Federal Rule of Evidence 702: The Court resorts to exclusion only when the expert’s opinions lack fundamental support. The Court held that Defendant’s concerns about the reliability of Reading’s methods concerned the weight of the testimony, not the admissibility. It also found that Xitco’s expert testimony assisted the jury under Rule 702 by aiding the understanding of damages.
Compliance with FRCP Rule 26(a)(2)(A-D): Federal courts have the discretion to exclude expert witness testimony due to an untimely or inadequate expert disclosure. But excluding Reading’s Report was unjustified considering any errors were clearly harmless since Defendants had ample time to remedy any concerns.
Blackhawk Mining, LLC and Pine Branch Mining, LLC (“the Mining Companies”) had operations in Breathitt County, Kentucky. Between July 25 and July 30, 2022, communities across eastern Kentucky suffered historic rainfall that led to “one of the most significant, deadly floods” in the Commonwealth’s history. The floods resulted in significant damage to property and the tragic loss of life. The Plaintiffs, including Eugene Baker, in this matter owned property in the River Caney Watershed, a mountainous community in Breathitt County. Each property was alleged to have experienced damage from the flooding. Many property owners resided along Caney Creek, which was situated down the mountain from where the Mining Companies maintained operations.
About a month after the floods had ravaged the area, the Plaintiffs filed this action alleging that the Defendants’ mining activities had increased stormwater runoff into the watershed during the historic rainfall, thus playing a causal role in the damage. In other words, they claimed that the Mining Companies had caused the damage they experienced from the floods by failing to operate safely.
Prior to the expert disclosure deadline, the Plaintiffs identified one expert witness, D. Scott Simonton, together with his report entitled “Preliminary Opinion, Caney Creek Flooding, Breathitt County, KY.” Simonton was retained to opine as to whether mining activities in the watershed increased flood peak flows and flood damage during the event.
Simonton’s preliminary report contained the following five parts: (i) a background section describing the event; (ii) an analysis of mining impacts and hydrology; (iii) an overview of mining in the Caney Creek Watershed; (iv) initial opinions on the Caney Creek flood; and (v) a summary of initial conclusions.
The Mining Companies argued that Simonton’s opinions lacked reliability under Rule 702 of the Federal Rule of Evidence because they were not based on reliable principles and methods, nor were they supported by sufficient facts and data. Additionally, they claimed that the opinions outlined in the report failed to meet the disclosure requirements of Rule 26(a) of the Federal Rules of Civil Procedure.
Environmental Engineering Expert Witness
D. Scott Simonton is a professional engineer having received a Ph.D. from the University of New Mexico. He has more than 30 years of experience “in state environmental and public health protection regulatory agencies, private consulting, and academia.” He specializes in environmental forensics, environmental site and risk assessment, mining impacts, hydrology, and environmental engineering design, as well as regulatory compliance including permitting, compliance plans, inspections and audits. He has provided expert testimony and project management for complex environmental cases.
Discussion by the Court
The Mining Companies argued that Simonton’s opinions were not reliable as he did not conduct flood modeling, which they claimed is the accepted methodology for determining if land disturbances caused or worsened flooding. They pointed out that computer-based hydrologic models have been deemed essential in various water disputes by many courts. Additionally, the studies reviewed and conducted by Simonton in his preliminary report also highlighted flood modeling as a useful tool, indicating its potential as an industry standard. Although the Court observed that the method was not required for a Court to admit an expert’s opinions, Simonton himself recognized the enlarged importance of hydrologist modeling to show that changes in surface land conditions from mining operations caused an increase in water runoff considering three of the five studies he cited involved hydrologic modeling. It was noted that Simonton previously testified that an expert in his field cannot reach conclusions about the impacts of surface disturbances on flooding without first conducting modeling of some kind.
The Plaintiffs responded by claiming that hydrologic modeling “was not an end-all requirement of the admissibility of expert testimony.” They even described the assertion that modeling was the industry standard in cases like this one as a “gross misunderstanding of industry practices.” However, the Court observed that they offered no reliable authorities to support this assertion.
The Plaintiffs defended Simonton’s methods, asserting that they involved classical engineering techniques such as aerial observation, third-party eye-witness accounts, and a review of his own modeling and permit files. However, they did not specifically assure the Court of the reliability of these methods. Instead, they dedicated a significant portion of their brief to argue that Simonton’s findings suggested per se negligence.
The Court found it challenging to support the reliability of an expert whose opinions lacked sophisticated modeling or site-specific testing regarding the impacts of water flows on mined surfaces. It noted that the absence of testing was a red flag against certifying the expert’s opinions. Without more than citations of past studies and unscientific opinions based solely on first-hand observations, the Court raised concerns about the reliability of the expert’s conclusions. It suggested that supplementing the expert’s report with additional data might have strengthened the reliability of the opinions.
The Mining Companies then contended that Simonton’s opinions were primarily based on examinations of water flows impacting terrain in locations other than the River Caney Watershed. They questioned the relevance of the studies upon which Simonton purportedly relied, arguing that he could not apply the principles and methods tested in separate locations with unique topological characteristics and conditions to the instant case without some form of testing in order to provide a connection. Essentially, the Mining Companies argued that Simonton’s report failed across the board, as he attempted to use results from studies and publications regarding other locations to establish a link between mining and flood damage in this case. Notably, the Plaintiffs did not dispute this observation. However, they claimed that the Mining Companies neglected to acknowledge Simonton’s firsthand analysis of the site and the generally acknowledged usefulness of outside studies to confirm or deny a scientific hypothesis. In other words, the Plaintiffs claimed that the studies provided Simonton with a reliable basis to form conclusions because they examined storm water’s impacts on similar topography in the Appalachian Mountains subject to surface and strip mining. But the Court observed that the studies Simonton briefly detailed in his preliminary report were presented in remarkably general terms–and often involved hydrologic testing or modeling to reach conclusions.
The Court observed that though Simonton cited first-hand aerial observations of the Caney Creek flooding in the weeks after the event, as well reviews of relevant precipitation data and examinations of Google Earth imaging over an extended period, a lack of demonstrable testing or modeling based specifically on the mining sites that purportedly led to the devastation was why Simonton’s report fell victim to the kind of “anecdotal evidence” and “improper extrapolation” that warranted exclusion.
The Mining Companies claimed that Simonton presented no analysis of water flows (pre or post mining) and completely failed to consider an obvious alternative cause of the Plaintiffs’ claimed damages other than waterflow caused by a land disturbance. To sum it up, the Mining Companies contended that Simonton’s report failed to properly exclude potential alternative causes of the damage that Plaintiffs had suffered. However, the Plaintiffs argued that Simonton’s consideration of how “the heavy rainfall had a disparate effect when compared to an undisturbed watershed” amounted to his exclusion of the rainfall as the primary causal factor in causing the flood damage. While Simonton may have implicitly ruled out alternative causes in the process of concluding that the Mining Companies were to blame for exacerbating the flooding, the fact that his report was merely preliminary may explain why he did not explicitly rule out, for example, the historic rainfall as causal in clearer detail.
Simonton’s preliminary report was found to be deficient in several key aspects: it lacked sufficient data regarding the specific mining sites in question, did not employ any scientific modeling or testing, and struggled to reliably apply principles and methods to the case’s facts with the reliance on extrapolations from studies conducted on sites outside of the River Caney Watershed held to be problematic.
The Mining Companies argued that Simonton’s report lacked a complete statement of his opinions, along with a clear basis and reasons for those opinions. Despite being labeled as “preliminary,” Simonton’s report provided a summary of opinions based on his initial evaluation of the terrain, sediment control structures, and sedimentary conditions in the Caney Creek area. However, the issue arose because Simonton presented these opinions as an “summary of initial preliminary opinions” without further supplementation. Rule 26 of the Federal Rules of Civil Procedure mandates the disclosure of a complete statement of all opinions the witness will express, which the Plaintiffs failed to fulfill. The Court emphasized that requiring the full disclosure of expert opinions enables opposing parties to adequately prepare their cases and helps triers of fact ensure that the expert’s opinion does not mislead or confuse the jury. Therefore, the Court found the Plaintiffs’ disclosure to be deficient in this regard.
The Mining Companies argued that Simonton’s preliminary report was not only incomplete but also reached various conclusions without identifying the reasoning behind them. They observed that Simonton concluded that mining had occurred in the River Caney Watershed, hydrologic modeling had been conducted in areas outside of this particular watershed, erosion had occurred in the watershed, and the surface area of a nearby sediment pond had experienced a reduction. However, Simonton did not provide a direct basis regarding how he reached these conclusions. It was noted that the studies Simonton referenced indicated that surface mining and improper design, construction, or maintenance of sediment and runoff controls may lead to additional damage caused by flooding. To the extent he relied upon that body of information (which was presented in an entirely separate section of his report) in forming his conclusions, Simonton’s report likely complied with the rule’s subpart. But compliance here did not change the fact that Simonton provided only a “preliminary” summary of conclusions despite the command that experts must disclose opinions they may offer in their entirety.
The Mining Companies argued that the Plaintiffs failed to produce all the facts and data considered by Simonton or the exhibits which Simonton claimed supported his opinions. In response, the Plaintiffs claimed the counsel had forwarded all information referenced in Simonton’s report. However, the Mining Companies noted that this information was provided only after they filed their motion to exclude, and months after the deadline for providing expert disclosures had passed. Despite the Plaintiffs’ assertion that much of the information considered by Simonton was available in the public domain, the Court emphasized that the duty to produce relevant information during discovery is enforced by a deadline. The Court held that deadlines are significant, regardless of any belief by the Plaintiffs that disclosing selective information at their chosen time could remedy a Rule 26(a) deficiency.
The Court also noted that Simonton failed to provide a full accounting of the cases in which he participated during the previous four years as per the requirements of Rule 26.
The Court held that the Plaintiffs’ failure to comply with this disclosure requirement was not harmless considering they failed to provide a complete statement of all opinions that Simonton planned to express, the facts and data he considered in reaching his opinions, and an accurate list of all other cases in which he testified as an expert.
Held
The Court granted the Defendants’ motion to exclude the proposed expert opinions of D. Scott Simonton.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways:
Experts should employ accepted methodologies relevant to the case, and failure to consider alternative causes of damages can undermine the credibility of their opinions. Parties have a duty to disclose all relevant facts, data, and opinions of their expert witnesses in a timely manner as per Rule 26 of the Federal Rules of Civil Procedure. Experts should provide a clear and transparent account of their findings, including the basis for their conclusions and any supporting evidence or data. Deadlines for expert disclosures and the production of relevant information during discovery are enforceable and significant, and courts may not overlook non-compliance with these requirements, even if the party believes the deficiency to be harmless. Additionally, experts should disclose their participation in relevant cases during the previous four years as required by Rule 26. Overall, expert witnesses should maintain impartiality and objectivity in their analysis and conclusions to ensure their testimony is not misleading or confusing to the trier of fact.
This lawsuit originated from the damage Hurricane Laura caused to First United Pentecostal Church of DeRidder (FUPC), a church in DeRidder, Louisiana, on August 27, 2020. Throughout the relevant period, the church was insured under a policy issued by Church Mutual Insurance Company (Church Mutual). Following the storm, FUPC engaged in a contract with Plaintiff Alex Howard, operating as ServiceMaster by Howard (ServiceMaster-Howard), a company based out of Alabama. The contract involved emergency cleaning, water mitigation, and restoration services. ServiceMaster-Howard subsequently filed a lawsuit against FUPC in this Court, asserting that both FUPC and Church Mutual had sanctioned the work but failed to settle the invoices. In response, FUPC filed cross-claims against Church Mutual, citing the latter’s alleged failure to promptly and adequately reimburse FUPC for losses covered under the insurance policy.
The case went through the Court’s Streamlined Settlement Process for first-party insurance claims from Hurricanes Laura and Delta, but did not resolve. It was originally set for a jury trial in April 2023, but the Court granted Church Mutual’s motion to continue the trial to allow more time for discovery. The new trial date was set for November 2023.
FUPC timely designated Keith Meranto as an expert witness, specifying him as a general contractor. The designation indicated that Meranto would testify in alignment with his report and expertise, encompassing Hurricane damage to the First United Church and Family Life Center, including reconstruction costs. The attached report featured a two-paragraph narrative and provided estimates for the rebuilding of both the church and Family Life Center.
On October 4, 2023, FUPC submitted supplemental discovery responses, which included the December 2022 contract between FUPC and Meranto Construction for the reconstruction and renovation of the church. Additionally, payment applications and invoices from December 2022 onward for the ongoing project were provided. The contract referred to a “Budgetary Schedule of Values” and an “attached schematic proposal,” outlining the scope of the church’s remodeling project. These documents, along with associated design plans, were only disclosed to Church Mutual on October 9, 2023. Meranto’s estimate for the entire project amounted to $3.7 million, whereas the estimate for hurricane repairs provided by the Plaintiff’s public adjuster was $1.5 million. On October 10, Meranto underwent deposition, during which he affirmed that he did not provide any opinions on causation. He also acknowledged that his involvement with the church extended beyond hurricane damage, and he could not distinguish between hurricane repair work and other renovations in his estimate.
Church Mutual filed a motion seeking the exclusion of all expert opinion evidence from Meranto, contending that his original report failed to establish his expertise in accordance with Rule 26(b)(2), Federal Rule of Evidence 702, and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The argument also asserted that Meranto’s opinions lacked relevance to the ongoing litigation. In response, the Plaintiff opposed the motion, asserting that Meranto was qualified to provide an estimate of repair costs and had cooperated to the best of his abilities in supplying documents to the defense counsel.
Construction Expert Witness
Keith Meranto has over 14 years of experience in construction and project management roles. He currently serves as the Owner/Construction Manager of Meranto Construction. Meranto has an extensive expertise in various areas including general contracting, project management, quantity take-offs, and design-build projects.
Discussions by the Court
Under the Federal Rules of Civil Procedure, a party is required to disclose the identity of any expert witness intended for trial, accompanied by a written report prepared and signed by the witness, as outlined in Fed. R. Civ. P. 26(a)(2)(B). This report is mandated to include a comprehensive statement of all opinions the witness would express, along with the basis and reasons for those opinions, as specified in Rule 26(a)(2)(B)(i). The rule does not restrict an expert’s testimony to merely reading the report; rather, it anticipated that the expert would supplement, elaborate upon, and explain the report in oral testimony, quoting Thompson v. Doane Pet Care Co., 470 F.3d 1201, 1203 (6th Cir. 2006). However, the Court held that a complete report is required to provide the substance of the testimony the expert intended to offer along with the reasons supporting it, citing Rule 26 Advisory Committee Note, 1983 Amendments. These requirements aimed to prevent unfair surprise. Consequently, an expert who failed to provide a report in compliance with Rule 26(a) should not have been allowed to testify unless such failure was deemed harmless, citing Fed. R. Civ. P. 37(c)(1).
The trial Court, following Daubert and Kumho Tire, acts as a gatekeeper in assessing the relevance and reliability of expert testimony. Federal Rule of Evidence 702 outlines three criteria for evaluating expert challenges: 1) expert qualifications; 2) relevance of proposed testimony; and 3) reliability of principles and methodology. The proponent bears the burden of proving admissibility. The Court has wide discretion, with rejection of expert testimony being the exception. The Court’s gatekeeping role doesn’t replace the jury but complements the traditional adversarial system. Cross-examination and presentation of contrary evidence are the primary means to address admissible but shaky expert evidence.
Church Mutual Insurance Company alleged that Meranto’s report for the first United Pentecostal Church in Deridder failed to meet the mandatory requirements outlined in Rule 26(a). The report, consisting of a mere two-paragraph narrative, was notably lacking in crucial details. It briefly mentioned Meranto Construction being summoned by Pastor Lewis to assess damage sustained by the church and gym due to a hurricane, without specifying the nature of the damage or its cause, be it from hurricanes Laura or Delta, pre-existing issues, or wear and tear. Additionally, the report did not elucidate the methodology used to ascertain the cause of the damage, the rationale behind the budgetary figures, the materials earmarked for use, or the involvement of vendors and subcontractors in supplying materials and labor. Furthermore, it omitted crucial aspects such as contracts or bids acquired from vendors/subcontractors forming the pricing foundation, the scope of renovations or upgrades planned, necessary work mandated by codes or ordinances, and the specifics of the permitting application submitted for a project of this scale.
Meranto’s testimony during the proceedings underscored his clear lack of opinion regarding the property’s extent of hurricane damage. He emphasized that his work’s scope was solely defined by the tasks requested by his client, FUPC, disregarding any considerations related to damage assessment. Notably, he explicitly stated: firstly, his absence of an opinion on the magnitude of hurricane damage; secondly, the disparity between his contracted budget and the actual cost required for hurricane repairs; thirdly, FUPC’s specific requests for upgrades and remodeling distinct from hurricane-related fixes; fourthly, his inability to provide an estimated budget exclusively dedicated to hurricane repairs; and finally, his lack of awareness regarding the allocation within his budget for ordinance and code compliance, despite acknowledging that these expenses exceeded $100,000, reaching the policy sub-limit of $100,000.
The Court observed that Meranto’s report, though brief, left no question about his qualifications as a contractor or his proficiency in cost estimation. However, both his report and testimony indicated that his estimate lacked credibility as a measure of repair costs for covered damages. Consequently, there was a significant risk that it could confuse or mislead the jury. The Plaintiff was advised to rely instead on the repair cost estimate from its public adjuster and invoices for completed work that could be directly linked to the damages.
Held
The Court granted Church Mutual’s motion in limine and barred Keith Meranto from offering any expert testimony in the case. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
Firstly, adherence to Rule 26(a) is paramount, demanding comprehensive reports from expert witnesses to prevent unexpected revelations during trial. Secondly, courts assume the role of gatekeepers, evaluating the relevance, reliability, and admissibility of expert testimony as per Federal Rule of Evidence 702, emphasizing expert qualifications, relevance, and methodological reliability. The burden of proving admissibility rests with the proponent, allowing courts wide discretion while maintaining the exceptionality of rejecting such testimony. This gatekeeping role serves to complement the adversarial system, enabling cross-examination and contrary evidence presentation to counterbalance uncertain expert evidence. Mandatory report requirements necessitate detailed opinions, methodologies, and supporting reasons, crucial in avoiding jury confusion or misinterpretation. Highlighting an expert’s limitations and scope prevents misconceptions about testimony credibility. In cases involving repair estimates, reliance on credible assessments directly linked to damages, such as those from public adjusters or invoices tied to damages, is advisable. Ultimately, ensuring clarity, relevance, and direct applicability of expert testimony to the case’s factual context helps prevent potential confusion or misleading interpretations for the jury.
