Expert Witness Profiler

Tag: Scheduling Order

  • Psychology Expert Witness’ Opinion on Parental Gatekeeping Excluded Due to Procedural Violations

    Psychology Expert Witness’ Opinion on Parental Gatekeeping Excluded Due to Procedural Violations

    On October 25, 2024, Petitioner Prasanna Sankaranarayanan filed a petition seeking the return of the parties’ minor son, S.A., to his habitual residence. The petition claims that Respondent Dhivya Sashidhar unlawfully took S.A. from Singapore to the United States on October 14, 2024. On November 1, 2024, Sashidhar was served with the summons and complaint in Redmond, Washington.

    Hague Convention cases are typically expedited, with a six-week resolution period recommended. In this case, the Court held a telephone conference with the parties on November 22, 2024, and scheduled an evidentiary hearing for January 6, 2025.

    After the conference, the Court issued a scheduling order that outlined deadlines for filings and disclosures, as proposed by the parties. However, the parties later disagreed on whether the deadlines applied to both sides.

    On December 27, 2024, Sashidhar filed a motion to exclude Petitioner’s psychology expert witness, Peter Favaro. Sashidhar argued that Sankaranarayanan had violated the scheduling order by disclosing the expert witness after the deadlines for such disclosures had passed.

    Psychology Expert Witness

    Psychology Expert Witness

    Peter Favaro is a psychologist licensed in the state of New York and has been in private practice since 1986. His area of expertise is psychology within court-related matters. Since 1986, he has been privately hired or court-appointed to thousands of cases to provide evaluation and expert opinion in matters involving domestic violence, custody disputes, and child abuse. He also offers court-related services such as supervised visitation, family mediation, anger management, family therapy, civility training, and parenting coordination. Additionally, he has been appointed or hired on cases involving the 1980 Hague Child Abduction Convention.

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

    Discussion by the Court

    A. The Parties’ Arguments

    1. Respondent’s Position

    In its motion, the Respondent sought to exclude the testimony and report of Peter Favaro, Petitioner’s psychology expert witness.

    On December 10, 2024, Petitioner’s counsel emailed Respondent’s counsel to reveal that they had retained Favaro as a rebuttal expert. However, Petitioner had not disclosed Favaro in their initial filings. Following this, Respondent arranged for the child to meet with Favaro on three consecutive days for an evaluation.

    Respondent argued that Favaro should be considered an affirmative expert, not just a rebuttal expert, as Petitioner claimed. Respondent pointed to several factors to support this argument:

    1. The report’s title did not suggest it was a rebuttal report
    2. The content included definitive conclusions, and
    3. The opinions went beyond simply addressing the Respondent’s expert reports.

    In fact, according to the Respondent, Favaro’s report claimed that the Respondent may have been exerting undue influence over the child and potentially mistreating the child.

    Additionally, Respondent asserted that the disclosure of Favaro’s report on December 23, 2024, was untimely and caused significant prejudice. The late disclosure left Respondent with insufficient time to retain a rebuttal expert to challenge Favaro’s conclusions. Furthermore, Respondent was unable to depose Favaro before the Court’s deposition deadline, further hindering its ability to respond effectively.

    2. Petitioner’s Position

    Petitioner argued that they complied with the Court’s scheduling order, as the dates and language were meant for Respondent to disclose experts and serve expert reports. Petitioner opposed the motion to exclude, stating that the order did not set specific dates for Petitioner’s affirmative or rebuttal experts. Therefore, Petitioner claimed they had not missed any deadlines.

    Petitioner further maintained that Favaro was solely a rebuttal expert, a child forensic psychologist retained to address Respondent’s affirmative defenses of grave risk and mature child. Petitioner emphasized that Favaro’s report was properly disclosed on December 23, 2024.

    B. Analysis

    1. The Scheduling Order

    The Court needed to determine whether the expert disclosure deadline applied to both parties. The parties interpreted the scheduling order differently. The order required Respondent to serve expert disclosures by December 2, 2024, and initial expert reports by December 9, 2024. However, the order did not specify deadlines for Petitioner’s affirmative expert disclosures. It only mentioned that both parties were to serve rebuttal expert reports by December 20, 2024.

    The minute entry accompanying the order outlined the schedule, including expert disclosures, initial reports, and rebuttal reports, but it did not address the timing for Petitioner’s disclosures. The entry and the order were silent about rebuttal expert disclosure.

    Petitioner’s attempt to distinguish between the scheduling order’s text and the minute entry was viewed as an attempt at gamesmanship. The Court found the minute entry to be an integral part of the order. If Petitioner found any confusion, they could have sought clarification instead of using the discrepancy for tactical advantage. The Court found the order’s deadlines to be clear and applicable to both parties.

    Petitioner’s claim that they did not know if experts were needed after December 2, 2024, was deemed disingenuous. During the November telephone conference, Petitioner’s counsel repeatedly discussed experts. Respondent’s counsel had also indicated that an expert had been retained and was ready for disclosure.

    The Court concluded that the expert disclosure deadline applied equally to both parties. Petitioner was aware of Respondent’s expert well before the disclosure deadline, as discussed in the telephone conference. The Court then considered the disclosures for both affirmative and rebuttal experts.

    1. Affirmative Expert Testimony

    Although Petitioner argued that all of the testimony was purely rebuttal, the Court was not fully convinced. The 20-page expert report was detailed and appeared to offer opinions and conclusions beyond those necessary for rebutting the affirmative defenses. For instance, Favaro’s opinion that Respondent’s “parental gatekeeping” amounted to maltreatment of the child did not address the grave risk or mature child defenses. As a result, the Court determined that the scope of Favaro’s report went beyond rebuttal testimony. Therefore, Petitioner had untimely disclosed Favaro as an affirmative expert witness.

    2. Rebuttal Expert Testimony

    Since the scheduling order did not specify deadlines for disclosing rebuttal experts, the Court considered the timeframes typically outlined in the Federal Rules of Civil Procedure. According to these Federal Rule of Civil Procedure 26(a)(2)(D)(ii), a rebuttal expert may be disclosed within 30 days after the other party’s expert disclosure, provided the evidence is intended solely to contradict or rebut the other party’s evidence on the same subject. However, this guideline offered limited guidance in this case due to the tight deadlines in expedited Hague Petition cases. Given the silence in the scheduling order and the inapplicability of the Federal Rules, the Court turned to other authorities to resolve the issue.

    Persuasive cases from this District and elsewhere suggested that the party with the burden of proof, in this case, the party asserting an affirmative defense, should disclose its expert testimony before the opposing party discloses an expert to rebut it. The Court referenced several cases supporting this approach.

    Based on this guidance and the lack of clarity in the scheduling order, the Court concluded that Petitioner’s disclosure of Favaro on December 10, 2024, shortly after Respondent served affirmative expert reports, was appropriate. Therefore, the Court determined that Petitioner had timely disclosed Favaro as a rebuttal expert.

    3. Sanctions

    Petitioner has failed to demonstrate that disclosure for any affirmative testimony was substantially justified or harmless. To the extent Favaro’s opinions exceed the scope of Respondent’s affirmative defenses, the late disclosure is harmful to Respondent’s ability to prepare for the evidentiary hearing. The Court will not infer that the violation is harmless from Respondent not deposing one expert to be definitive that Respondent would not have deposed Favaro if properly disclosed as an affirmative expert witness.

    Similarly, in light of the lengthy discussions about experts during the telephone conference, Petitioner cannot reasonably maintain that the knowledge about experts did not arise until December 2, 2024. Therefore, the Court concluded that sanctions are warranted because Petitioner has not shown that the discovery violation was substantially justified or harmless.

    The Court observed that Favaro’s testimony is important to resolving this matter on the merits, but the Court still finds that sanctions are warranted in this matter. Accordingly, the Court will limit Dr. Favaro’s testimony and opinions in the report solely to rebuttal opinions. “[A] rebuttal expert cannot offer evidence that does not contradict or rebut another expert’s disclosure merely because [the expert] also has also offered some proper rebuttal [evidence].”

    Held

    The Court granted in part and denied in part Respondent’s motion to exclude Petitioner’s expert witness Peter Favaro’s testimony.

     It excludes any of Favaro’s testimony or portions of the report that exceed the scope of rebuttal testimony for Respondent’s affirmative defense. 

    The Court directed Petitioner to provide Respondent an articulation of Favaro’s rebuttal testimony by January 4, 2025 at 12:00 pm (PST). 

    Key Takeaway:

    Portions of Peter Favaro’s report exceeded the scope of permissible rebuttal testimony and the Court deemed the disclosure of his affirmative expert opinions untimely. While the Court accepted Favaro’s rebuttal testimony, it excluded his opinions on matters unrelated to the grave risk or mature child affirmative defenses—such as allegations of “parental gatekeeping” and maltreatment.

    Case Details:

    Case caption: Sankaranarayanan V. Sashidhar
    Docket Number: 2:24cv1745
    Court: United States District Court for the Western District of Washington
    Dated: January 3, 2025
  • Management Consulting Expert Witness’ Rebuttal Report on Breach of Warranty Counterclaim Admitted

    Management Consulting Expert Witness’ Rebuttal Report on Breach of Warranty Counterclaim Admitted

    This case involves contract disputes. The first contract between Plaintiff, SIS, LLC (“SIS”)  and Defendant, Orion Group Holdings, Inc. was the Professional Services Agreement (“PSA”). It was entered into in June 2010. Under the PSA, Plaintiff provided software consulting services for Defendant. After over ten years of performance under the PSA, the parties entered into a second agreement, the SaaS Services Agreement (“SaaS Agreement”), which was to last five years. It was entered into in 2020. Under that agreement, Plaintiff provided Defendant with different software, including but not limited to Microsoft Dynamics 365, which Defendant purchased as part of a project to implement a new enterprise-wide software system.

    Eventually, a disagreement occurred, and Defendant stopped payment under the SaaS Agreement. Defendant only paid one of the five required payments. Plaintiff sued Defendant to recover the remaining payments. As part of Defendant’s answer, it asserted a counterclaim. The counterclaim alleges that Plaintiff’s “services” under the PSA failed in their entirety.”

    Plaintiff argues that (1) the PSA makes no warranties as a matter of law, and (2) Defendant failed to plead compliance with a condition precedent to recovery.

    Pursuant to the First Amended Scheduling Order (the “Scheduling Order”), SIS
    designated its two experts on January 5, 2023. Neither expert served the required report.

    James Bowman and Mark Kershteyn had been designated to testify whether the professional services rendered by SIS to Orion under the parties’ Professional Services Agreement, especially those intended to aid Orion in selecting, purchasing, and utilizing the Microsoft and SIS software defined as “Services” in the parties’ SaaS Agreement, (1) met or exceeded industry standards, (2) complied with all federal, state, local laws, statutes, and ordinances, and (3) otherwise fulfilled all warranties made by SIS to Orion regarding those professional services.

    The Court addressed the Motion to Strike concerning Bowman’s designation as a liability expert and his report (the “Bowman Report”). The motion sought to strike the report for three main reasons: (i) the report was served on June 16, 2023, five months beyond the deadline specified in the Court’s Agreed Scheduling Order; (ii) Bowman failed to demonstrate his competence to render liability expert opinions; and (iii) the report was deemed wholly conclusory without citing any evidence, thereby violating Rule 702 of the Federal Rules of Evidence and Rule 26(a)(2) of the Federal Rules of Civil Procedure.

    Additionally, although Kershteyn was timely designated, he never served a report. SIS was deemed to have no excuse for its failure to produce Kershteyn’s report on any topic. Despite subsequent interrogatories revealing SIS’ alleged damage claim as $2,186,316, representing the remaining contract balance for the last four years of the SaaS Agreement, Kershteyn asserted that SIS’ lost net profit was “irrelevant.” SIS refused to produce its lost profits evidence, contrary to the legal standard for breach of contract damages. Consequently, Kershteyn’s damages methodology was considered fundamentally flawed as a matter of law. Orion also objected to SIS’ designation of Mark Kershteyn and moved to strike the same.

    Management Consulting Expert Witness

    James Bowman has more than 40 years of experience as an executive, entrepreneur and thought leader in the technology services arena, including 17 years as president and CEO of SBS Group where he oversaw growth from a small, local partner to a leading international Microsoft solution provider. He has demonstrated acumen in consulting services, sales, marketing, and daily operations overseeing multiple business units. He boasts of extensive experience within the Professional Services, Distribution, and Manufacturing industries.

    Discussions by the Court

    Orion sought to strike the expert designation and report of James Bowman (“Bowman”), who was designated as SIS’ expert for rebutting liability in relation to Orion’s breach of warranty counterclaim. Orion argued that Bowman’s report was both untimely and conclusory. Furthermore, Orion asserted that Bowman lacked the competence required to provide liability expert opinions under the Daubert standard. The Court initially addressed the issue of Bowman’s competence to testify as an expert under Daubert.

    Under Daubert, trial courts are tasked with a gatekeeping function to assess the scientific validity of expert testimony and its applicability to the facts in question. The text outlines Rule 702 criteria, stating that a qualified expert can testify if their specialized knowledge assists the trier of fact, rests on sufficient facts and reliable principles, and the witness has reliably applied those principles to the case’s facts. The proponent of expert testimony must demonstrate its reliability by a preponderance of the evidence.

    The Court examined Bowman’s credentials, revealing that he served as Chairman of the Board at Velosio, a competitor of SIS and Microsoft’s largest independently owned solution provider for Business Applications. Bowman’s resume indicated his role as Chief Revenue Officer at Velosio from 2018 to 2021, overseeing Sales, Marketing, and Cloud efforts, acting as the primary relationship manager for Velosio’s Microsoft connection, and liaising with service/implementation teams. SIS contended that Bowman was qualified to testify as an expert based on his extensive work experience, attendance at industry conferences, participation in industry organizations, and involvement in sales and acquisitions.

    The Court determined that Bowman’s background and experience were satisfactory, establishing by a preponderance of the evidence that he was qualified to testify as a rebuttal expert regarding SIS’ performance under the PSA. The Court cited Federal Rule of Evidence 702(a)-(d), emphasizing Bowman’s “knowledge, skill, experience, training, or education.” SIS pointed out that Bowman possessed over thirty years of industry experience and had participated in “more than 500 implementations,” including those relevant to the ongoing lawsuit.

    According to the First Amended Scheduling Order, the deadline for designating Plaintiff’s experts and providing reports was January 5, 2023. SIS conceded that Bowman did not submit an expert report by the specified date. However, SIS argued that Bowman’s report was intended solely for rebuttal, addressing Orion’s counterclaim, and was thus timely filed on June 16, 2023. The Court, in the Amended Order Granting Defendant’s Unopposed Motion, allowed Plaintiff’s designated retained expert to serve a rebuttal report within 30 days after Defendant’s expert reports were served. Orion contended that the report was untimely and should be dismissed due to not meeting the original January deadline. The Court determined that Bowman was explicitly designated as a rebuttal expert witness, and therefore, his rebuttal report, filed on June 16, 2023, was considered timely within the 30-day window following Orion’s submission of expert reports on May 19, 2023.

    Orion raised concerns about the content of Bowman’s report, asserting that it did not adequately establish or address the designated components: industry standards, compliance, and warranties. Orion further argued that Bowman failed to cite any evidence and did not rebut any portion of Orion’s liability expert, Greg Crouse, or mention Crouse’s report. In the appendix to his rebuttal report filed on June 16, 2023, Bowman provided a list of documents he relied on, including recordings of internal meetings between SIS and Orion during the relevant period. SIS countered by highlighting that Bowman’s opinions were firmly grounded in a Statement of Facts, wherein he precisely identified the basis for each observation.

    The Court rejected Orion’s motion to strike Bowman’s rebuttal report but issued a caution. Bowman was restricted to providing testimony exclusively in rebuttal. During the trial, he was confined to presenting opinions that were both outlined in his report and specifically offered as direct rebuttals to Orion’s designated liability expert concerning the breach of warranty counterclaim.

    SIS designated Mark Kershteyn (“Kershteyn”), a co-owner of SIS, to serve as a fact witness concerning SIS’ damages under the SaaS Agreement. Additionally, Kershteyn was designated as a non-retained expert to provide testimony on SIS’ standard of performance under the PSA. According to Rule 26(a)(2)(C), a witness who is not “retained or specially employed to provide expert testimony in the case” is classified as a non-retained witness and is not required to file a report. The distinction lies in the fact that a retained expert is recruited solely to offer expert testimony without prior personal knowledge of the case’s facts, while a non-retained expert’s testimony stems from their direct involvement in the events leading to the litigation.

    As a non-retained expert witness, Kershteyn was not obligated to provide an expert report on the issue of SIS’ standard of performance under the PSA. Similarly, he was not required to submit a report on SIS’ damages under the PSA, as he qualified as a lay witness testifying from personal knowledge of the transaction. Orion contended that Kershteyn’s interrogatory responses on the issue of damages should be excluded due to his alleged failure to identify SIS’ claimed lost profits. The Court, in a previous ruling, had already stated that Kershteyn’s affidavit was enough to raise a genuine issue of fact as to direct lost profits damages associated with the alleged breach.

    Therefore, Kershteyn, as a non-retained expert, was not mandated to submit a report on Orion’s breach of warranty counterclaim. Additionally, Kershteyn was permitted to testify as a lay witness regarding SIS’ alleged damages based on the SaaS Agreement.

    Held

    The Court denied Orion’s Motion to Strike SIS’ Designation of Experts and the Expert Report submitted by James Bowman. 

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    In this case involving contract disputes between SIS, LLC (“SIS”) and Orion Group Holdings, Inc., the Court addressed challenges to expert testimony provided by James Bowman and Mark Kershteyn. The dispute centered around SIS’ performance under the Professional Services Agreement (PSA) and the SaaS Services Agreement (SaaS Agreement). Bowman, designated as an expert for rebutting liability in Orion’s breach of warranty counterclaim, faced objections over his competence to render liability expert opinions. Kershteyn, a co-owner of SIS, served as a fact witness and non-retained expert. The Court determined that Kershteyn was not required to serve an expert report as a non-retained expert on Orion’s breach of warranty counterclaim.The key takeaway underscores the Court’s careful consideration of objections related to expert testimony, ensuring compliance with procedural rules and evaluating the sufficiency of evidence presented in the context of contract disputes.

    Case Details

    Case Caption Sis, Llc V. Orion Group Holdings, Inc. Et Al
    Docket Number 4:22cv891
    Court United States District Court, Texas Southern
    Citation 2023 U.S. Dist. LEXIS 233454
    Order Date   December 21, 2023