A district judge in Indiana held that it did not require an insurance litigation expert’s assistance to interpret contract language considering no party in this case appeared to dispute the actual language of the policy.
Plaintiff Brenda Marie Stephens is a real-estate appraiser and is the President of Plaintiff Accent Consulting Group (collectively, “Ms. Stephens”). Ms. Stephens demanded that Defendant Great American Assurance Company (“Great American”) provide legal representation for her under an insurance policy (the “Policy”) it issued related to a professional disciplinary hearing and Great American refused. After Ms. Stephens successfully defended herself in the hearing, incurring legal costs, she and Accent Consulting initiated this litigation against Great American. With leave of Court, Great American filed a counterclaim against Ms. Stephens and Accent Consulting, alleging that Ms. Stephens’ insurance application contained a misrepresentation — specifically, that she was not subject to any complaint, investigation, or disciplinary hearing even though she was.
The parties filed Cross-Motions for Summary Judgment. In Great American’s Cross-Motion for Summary Judgment, it requested that the Court strike the expert testimony of Ms. Stephens’ expert, Professor William Warfel.
Insurance Expert Witness
William Warfel is a professor of insurance and risk management at Indiana State University where he teaches classes such as Property/Liability Insurance, Health Insurance, Life Insurance, Introduction to Risk and Insurance, Commercial Liability Insurance, and Insurance Seminar.
Great American argued that Warfel was not “qualified” to offer expert opinions on real estate appraisal disciplinary actions and “merely attempted to explain the legal effect of” the Policy.
The Court observed that Ms. Stephens did not file any response to Great American’s Cross Motion for Summary Judgment, which contained the motion to strike the expert testimony. Well after the deadline, Ms. Stephens filed an unauthorized “sur-reply.” The sur-reply did not address the motion to strike expert testimony and instead argued that Great American had not demonstrated prejudice from allegedly late notice of her insurance claim.
The Court held that Warfel’s expert opinion is largely a rehashing of Ms. Stephens’ arguments. For example, Warfel opined that “the trigger of coverage issue must be evaluated within the context of the insuring agreement,” that “the underlying claim against [Ms.] Stephens became ripe once The Office of the Indiana Attorney General filed its original Formal Complaint against her,” and that “an expectation that an insured must report to the carrier all Consumer Complaints against the insured is entirely unreasonable.”
The Court did not require Warfel’s opinion since no party in this case appeared to dispute the actual language of the policy, and the interpretation of a contract is a question of law for the Court.
Held
The Court granted Great American’s motion to strike the expert opinion of Professor William Warfel as well as Great American’s cross-motion for summary judgment.
The policy was rescinded and Great American was ordered to return $1,109.00 in premiums to Accent Consulting Group, Inc.
Key Takeaway:
The Court, citing Delta Mining Corp. v. Big Rivers Elec. Corp., 18 F.3d 1398, held that “Absent any need to clarify or define terms of art, science or trade, expert opinion testimony to interpret contract language is inadmissible.” In other words, the Court may not resort to extrinsic evidence unless terms are ambiguous.
Case Details:
Case Caption:
Accent Consulting Group, Incorporated Et Al V. Great American Assurance Company
This case arises from an incident at Darling’s plant in Kuna, Idaho. Darling is an animal processing company headquartered in Texas, with operations in several states including Idaho. Reymundo Cruz was employed as a maintenance worker at the Kuna plant in 2020 when he was fatally injured while repairing a machine called a “cow pusher” or “cow shovel.” This machine was designed and installed in 2010 by two Darling employees, Jose Guerrero and the decedent, Cruz.
The cow shovel utilized pneumatic pressure to push cattle carcasses into a grinder, posing potential hazards to workers. Typically, safety measures such as lockout-tagout were implemented to prevent unexpected start-ups or energy releases during maintenance. Surprisingly, the use and maintenance of the cow shovel did not specifically mandate these safety procedures.
On April 7, 2020, Cruz was performing a repair on the cow shovel when the pressurized air caused the metal rods of the machine to extend, crushing Cruz. He died from his injuries several days later. After Cruz’s death in April 2020, OSHA inspected the Kuna plant and issued one repeat citation and five serious citations for failing to implement safety precautions and properly control hazardous energy sources.
Cruz’s spouse, children, and stepchildren filed a Complaint in Idaho State Court alleging negligence, negligence per se, and wrongful death against Darling.
Darling removed the case to federal court and moved for summary judgment on all claims against it. Plaintiff filed motions to strike the reports of Adam Aleksander and Bradley Giles.
The motions to strike filed in this case were construed as objections pursuant to Rule 56(c)(2).
OSHA/Workplace Safety Expert Witness
Bradley Giles has extensive experience with OSHA, as shown by his CV. Notably, he is a graduate member of the Institution of Occupational Safety and Health. He is also a professional member of the American Society of Safety Engineers, a Certified Safety Professional, a Safety Trained Supervisor, and possesses a Master of Science Degree in Industrial Safety. All told, he “has over 40 years of Environmental, Safety, Health & Security (ESH&S) management.”
SafetyEngineering Expert Witness
Adam Aleksander is a Mechanical and Industrial Engineer, with degrees from California State Univ. San Jose, Univ. of Colorado, and a Ph.D. from Texas A&M Univ. and is a licensed Professional Engineer in multiple States. His PhD training is in Human Factors Engineering and Safety Engineering.
During a career spanning 50 years, he has wide experience in material handling, process energy systems, biomass boilers and STG’s, and investigative forensic engineering.
Discussion by the Court
Motion for Summary Judgment
Plaintiffs, here, argued that Darling’s conduct fell within the exception for unprovoked physical aggression. This exception applies where an employer “(1) committed an offensive action or hostile attack (2) aimed at the bodily integrity of the employee with (3) an unprovoked, i.e., general, intent to injure an employee.”
Darling argued it did not know or consciously disregard any risk to employee life and limb because Cruz’s actions were not foreseeable. It argued Cruz received training on lockout-tagout protocol, knew how to operate the cow shovel, and that Cruz could have repaired the machine safely.
Plaintiffs conceded that their negligence per se claim could not fall within the exclusive remedy exception.
However, Darling was aware of its obligation to implement certain safety protocols when a machine, such as the cow shovel, used hazardous energy.
Darling routinely conducted periodic safety inspections at the Kuna plant to ensure compliance with safety requirements, but it did not identify the cow shovel as a hazardous energy source or implement safety protocols specific to the machine until after Cruz’s death.
Accordingly, the Court granted in part and denied in part Darling’s motion for summary judgment.
Evidentiary Objections
Giles Report
The Plaintiffs objected to OSHA/Workplace Safety Expert Witness Giles’ report for several reasons. They insisted on its inadmissibility because it was attached to the declaration of defense counsel who lacked the requisite personal knowledge of a declarant. Darling had, “out of an abundance of caution,” submitted a declaration from their expert. The Court found that this rendered the objection moot.
The Plaintiffs also objected to several portions of the Giles report as speculative or improperly opining on Cruz’s state of mind. Relevant here, was Giles’ conclusion that Cruz chose to conduct the repair in the manner he did because a safer alternative existed. It did not persuade the Court that this conclusion amounted to an opinion on Cruz’s state of mind. Even to the extent it did opine on Cruz’s state of mind, the Court relied only on the Giles report for its opinion that an alternate method existed to approach the machine, which certainly did not opine on Cruz’s state of mind. The Court found that Giles reviewed the material in this case and inspected the Kuna plant and cow shovel.
Aleksander Report
Darling objected to portions of Safety Engineering Expert Witness Aleksander’s report, arguing it was speculative and offered an opinion on an ultimate issue. The Court did not rely on Aleksander’s statements that Darling “deliberately and intentionally ignored the hazard,” so it did not evaluate whether it opined on an ultimate issue. The Court, however, overruled the objections to the Aleksander Report as speculative. Aleksander’s opinions were based on depositions, OSHA citations, and his personal observations of the plant. Much like Darling’s expert, this provided sufficient foundation to render his opinion non-speculative.
Held
The Court granted in part and denied in part Darling’s motion for summary judgment. The Court denied the motions to strike the reports of Safety Engineering Expert Witness Adam Aleksander and OSHA/Workplace Safety Expert Witness Bradley Giles.
It has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways:
Speculation and Opinion: Both reports encountered objections regarding speculative content and opinions on ultimate issues. While the Court did not rely on certain statements from Aleksander suggesting Darling’s intent, it overruled objections to the report as speculative due to the foundation provided by depositions, OSHA citations, and personal observations. This underscores the need for experts to ground their opinions in factual evidence rather than speculation.
State of Mind Opinions: Giles’ report faced objections regarding opinions on Cruz’s state of mind. However, the Court determined that the conclusion about Cruz’s choice of repair method did not constitute an opinion on his state of mind, particularly since it relied on factual observations rather than subjective interpretation. This emphasizes the importance of distinguishing between factual observations and speculative opinions on individuals’ mental states in expert testimony.
Case Details:
Case Caption:
Perez, Et Al. V. Darling Ingredients, Inc., Et Al.
Plaintiffs are 31 professional models, actresses, and social media influencers who each earn a living promoting and licensing their image, likeness, and/or identity (collectively, “Image”) to select clients, commercial brands, and media and entertainment outlets, which rely on Plaintiffs to promote, endorse, and sponsor agreed-to goods and services. Plaintiff filed a lawsuit against Orange Lantern, Inc. and Mark Pessolano, alleging violations of the Lanham Act.
Orange Lantern previously operated the Magic Lantern night club and Pessolano was one Orange Lantern’s owners. Plaintiffs have alleged that Defendants posted images of Plaintiffs to Magic Lantern’s Facebook page between July 16, 2012, and November 21, 2018, without their consent or knowledge, making Defendants liable.
Plaintiffs retained Stephen Chamberlin as the Image Consulting and Valuation Expert Witness and Thomas Maronick as the Marketing Expert Witness in this case. Defendant filed a motion to exclude the expert opinions of both Chamberlin and Maronick which the Court subsequently denied.
Both parties also filed motions for summary judgment, each side arguing that there were no disputes of material fact and asserting entitlement to judgment as a matter of law.
Image Consulting and Valuation Expert Witness
Stephen Chamberlin has over thirty years of experience as an agent for professional models and has negotiated numerous contracts for models to appear in advertising. He served in leadership roles at prominent talent agencies including LA Models Management, Warning Management Inc., and Michele Pommier Models. Chamberlin has also represented high-profile celebrity models and talent including Tyra Banks, Claudia Schiffer, and Paris Hilton.
Marketing Expert Witness
Thomas Maronick is an Emeritus Professor of Marketing at Towson University College of Business and Economics where he taught marketing, strategy, and research courses from 1987 to 2017. He also held faculty positions at the University of Baltimore School of Business and Virginia Commonwealth University. Maronick served as the Director of the Office of Impact Evaluation at the Federal Trade Commission from 1980 to 1997. Since 1997, he has worked as a marketing consultant and expert witness, providing services in over 150 cases involving consumer litigation, advertising, trademarks, and survey research.
Discussion by the Court
Chamberlin testified about the rates the Plaintiff would have charged to appear on the Facebook postings. Maronick analyzed the consumer confusion created by the social media postings.
Plaintiffs contended that the opinions offered by Chamberlin and Maronick met the admissibility requirements of Rule 702, and Defendants’ arguments, while framed as objections to methodology, actually concerned questions of weight and credibility that could not be resolved at summary judgment.
Motion to Strike Chamberlin
When the Defendant argued that Chamberlin lacked professional experience negotiating contracts with strip clubs, the Court noted that Chamberlin’s professional background qualified him to opine considering he has negotiated numerous contracts for models to appear in advertising. Moreover, Plaintiffs did not agree to license their images to any strip clubs during the relevant period.
Chamberlin admitted that he did not apply an objective formula to arrive at his opinions but asserted that the methods he used were still reliable. Defendants did not dispute that modeling contracts were negotiated based on an individualized balancing of multiple criteria. Chamberlin listed the criteria he used and explained various assumptions he made when negotiating rates for individual models to appear in specific advertising. It was clear that Chamberlin had reviewed the posted images, spoke with each of the Plaintiffs, and reviewed the Plaintiff’s work history before reaching his opinions.
Court’s Ruling on the Motion to Strike Chamberlin
The Court held that objections to the accuracy of Chamberlin’s statements about the criteria he considered when negotiating modeling rates or the sufficiency of the facts reviewed before rendering his opinion may be presented to the trier of fact, but they did not warrant his disqualification at this stage of the litigation.
Motion to Strike Maronick
The Court deemed Marketing Expert Witness Maronick more than qualified to design and conduct consumer surveys and interpret the results.
He designed an online survey that could administer to “a sample of consumers in the target market for gentlemen’s clubs in Massachusetts” and used it to determine the perceptions of consumers regarding women shown in social media postings by the Magic Lantern.
Specifically, the survey aimed to ascertain whether the women had any affiliation with the club, approved the use of their images, were paid for the use of their images by the Magic Lantern Club, and participated in some or any of the events or activities at the Magic Lantern Club.
Maronick listed the following conclusions:
a large majority of consumers considering whether to visit a gentleman’s club consider the women working there to be an important factor in their decision;
consumers are likely to believe that women shown in ads posted by the Magic Lantern have agreed to endorse or sponsor the Magic Lantern, have a connection with the Magic Lantern, have approved the use of their images, have been paid to promote the Magic Lantern, and have participated in activities at the Magic Lantern
such consumers are likely to believe the Magic Lantern posted images of women in order to convey to potential consumers that they would see similar looking women if they visited the Magic Lantern
Court’s Ruling on the Motion to Strike Maronick
The Court held that Marketing Expert Witness Maronick designed the survey and administered it in a way that gathered data consistent with the limited scope of the inquiry. The Court found Maronick’s opinions to be within the scope of the inquiry and well-supported by the survey data.
Defendants were free to take up any objections they had with regard to Maronick’s survey data at trial but the Court found no basis to exclude Maronick’s testimony.
The Court denied Plaintiff’s motion for summary judgment but granted in part and denied in part the Defendant’s motion for summary judgment.
Held
The Court denied the Defendant’s motions to exclude the testimony of Stephen Chamberlin and Thomas Maronick.
The Court stayed the case because it certified a question to the Massachusetts Supreme Judicial Court (“SJC”) regarding how the Massachusetts discovery rule should apply to Plaintiffs’ defamation claims based on Facebook postings made more than three years before they filed their original complaint.
Key Takeaways:
Reliability: The Court considered Chamberlin’s methods, although lacking an objective formula reliable due to his thoroughness in considering various criteria and reviewing relevant facts. The Court also deemed Maronick’s survey methodology and conclusions consistent with the limited scope of the inquiry and well-supported by the survey data.
Qualifications: The Court held that Chamberlin’s background negotiating numerous contracts for models to appear in advertising was relevant.
Tom’s a wholly-owned subsidiary of Tom’s of Maine Holdings, Inc., which, in turn, was a wholly-owned subsidiary of Colgate. Tom’s specialized in manufacturing personal care products, such as toothpaste and deodorant. The company marketed numerous toothpaste flavors and deodorant varieties as “natural”, which included 34 toothpaste flavors and 17 deodorant varieties, all of which were promoted as “natural” on their respective packaging. The packaging of each toothpaste and deodorant product featured a representation claiming the product’s “natural” nature.
Anne De Lacour, Andrea Wright, and Loree Moran, individually and on behalf of all others similarly situated (collectively, Plaintiffs), argued that the use of the word “natural” by the Colgate-Palmolive Co., and Tom’s of Maine Inc. (collectively, Defendants) on these products was false and misleading. They contended that the products in question contained ingredients, such as aluminum chloralhydrate, glycerin, propylene glycol, sodium lauryl sulphate, sorbitol, and xylitol, which were deemed “synthetic and/or highly chemically processed.” The Plaintiffs asserted that they suffered harm as a result of relying on Tom’s “natural” representations, as they were led to purchase the products at a premium price.
The Plaintiffs sought damages on behalf of themselves and three distinct classes – the “California Class,” the “Florida Class,” and the “New York Class.” Their claims were based on various legal provisions, including California’s Consumer Legal Remedies Act (“CLRA”), False Advertising Law (“FAL”), and Unfair Competition Law (“UCL”). In addition, the lawsuit invoked Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), New York’s General Business Law (“NYGBL”), and a claim for breach of express warranty.
After the discovery phase concluded, the Defendants filed motions for summary judgment, motions to exclude the Plaintiffs’ experts, Dr. Zhaohui Zhou, Brian M. Sowers, J. Michael Dennis and Colin B. Weir, and a motion for class decertification.
Market Research Expert Witness
Brian M. Sowers is a Principal at Applied Marketing Science, Inc. (AMS), a distinguished market research and consulting firm. With a career spanning since 1996, he has amassed extensive expertise in market research. Prior to AMS, Sowers held research positions at the Forbes Consulting Group. Throughout his career, he personally designed and executed numerous market research surveys across diverse modalities and populations. Sowers holds a Bachelor of Arts in History from Roanoke College and earned a Master of Business Administration from the University of Colorado.
Chemistry Expert Witness
Zhaohui Sunny Zhou holds a Bachelor of Science degree in Organic Chemistry from Peking University, Beijing, China, and a Ph.D. in Bioorganic Chemistry from The Scripps Research Institute, California. Zhou is currently serving as a Professor in the Department of Chemistry and Chemical Biology at Northeastern University, and also holds positions as Faculty Fellow of the Barnett Institute of Chemical and Biological Analysis and Affiliated Faculty of Bioengineering and Biology. With expertise in chemistry, biochemistry, and chemical biology, Zhou conducts research and teaches various aspects of chemistry related to natural products and derivatives.
Political Science Expert Witness
J. Michael Dennis holds a B.A. and an M.A. in Government from the University of Texas. He then earned his Ph.D. in Political Science from the University of Chicago. Dennis is currently the Senior Vice President at NORC and is also the President and Owner of JMDSTAT Consulting Inc. Prior to this, Dennis held the position of a Managing Director at GfK Custom Research LLC. With over 25 years of experience, Dennis specializes in designing and conducting surveys focused on the opinions, perceptions, attitudes, preferences, and values of consumers, voters, members of association, and citizens.
Economics Expert Witness
Colin B. Weir holds an MBA with honors from Northeastern University and a Bachelor of Arts degree in Business Economics from the College of Wooster. Weir has provided consulting expertise on diverse consumer and wholesale products cases, specializing in calculating damages for various product categories such as food, household appliances, herbal remedies, health/beauty care products, electronics, furniture, and computers. Weir is currently serving as the President at Economics and Technology, Inc., his work involves a range of economic analyses, including econometric and statistical analysis, multiple regression, surveys, statistical sampling, micro- and macroeconomic modeling, and accounting.
Discussion by the Court
Plaintiffs asserted that Tom’s labeling of its toothpaste and deodorant products as “natural” was deceptive, alleging the inclusion of synthetic or highly chemically processed ingredients. They sought damages under various legal provisions. To succeed, Plaintiffs had to prove that a “reasonable consumer” would likely be misled by Tom’s use of “natural.” The reasonable consumer standard required a probability that a significant portion of the public could be misled. In their evidence, Plaintiffs relied on an expert report, governmental guidance, definitions by Named Plaintiffs, internal documents, and Tom’s employees’ testimony. The admissibility and sufficiency of this evidence were challenged in the context of Tom’s Motion for Summary Judgment.
Expert Sowers, responsible for designing surveys on toothpaste and deodorant, aimed to assess consumer perceptions of Tom’s “natural” claims. Respondents viewed products with the contested labeling and answered a series of questions, focusing on whether the term “natural” conveyed the presence of “only natural ingredients,” “some natural and some artificial ingredients,” or “no natural ingredients” (only artificial). However, criticisms arose concerning the flaw in Sowers’s approach. He defined “natural” and “artificial” solely in relation to each other and failed to provide clear definitions, rendering the terms ambiguous. This lack of clarity undermined the meaningful interpretation of respondents’ answers, leading to the exclusion of Sowers’s report and testimony in the litigation.
Plaintiffs engaged Expert Zhou to opine on the “scientific merit” of Tom’s use of the word “natural” in describing its toothpastes and deodorants. Defendants contended he lacked the expertise to assess whether toothpaste and deodorant ingredients were “natural.”
Experts Dennis and Weir were engaged by the Plaintiff to provide evidence of classwide injury. Dennis conducted two surveys, one for Tom’s toothpastes and another for Tom’s deodorants. Based on those surveys, Dennis contended he could isolate a “price premium,” or portion of the market price consumers paid, that was attributable to the “natural” claim at issue. Weir, in turn, endorsed Dennis’s analysis and then used simple multiplication to calculate Plaintiffs’ claimed “price premium damages” (price premium x units sold) and “statutory damages” ($550 x units sold). Defendant argued that Dennis’ conjoint analysis suffered from numerous fatal defects and alleged that Dennis doctored the respondents’ answers. Defendant also added that Weir’s opinions were inadmissible on account of the lack of a specialized degree in the field of retail pricing.
Firstly, in their attempt to illustrate a reasonable consumer’s perception of “natural,” Plaintiffs cited governmental guidance, Named Plaintiffs’ definitions, Tom’s internal documents, and the testimony of Tom’s employees. However, this evidence fell short of establishing that a reasonable consumer interpreted Tom’s use of “natural” as an assurance that its products lacked synthetic or highly chemically processed ingredients. Instead, the evidence indicated diverse interpretations of the term “natural.”
There was no governmental guidance specifically addressing the use of “natural” labeling on personal care products, as acknowledged by Plaintiffs. The most relevant guidance pertained to food products, with differing interpretations from various agencies. In 1982, the United States Department of Agriculture defined “natural” for meat and poultry products as free of artificial flavors, colorings, chemical preservatives, and not more than minimally processed. The United States Food and Drug Administration (FDA) around 1988 stated that “natural” meant nothing artificial or synthetic had been included or added to the product beyond normal expectations. In 2015, the FDA sought public comments on the use of “natural” on food product labeling, receiving over 7,000 comments reflecting diverse interpretations, including “organic,” “minimally processed,” “chemical-free,” “hormone-free,” “non-GMO,” and “not ‘artificial’/’synthetic.’” Despite the comments, the FDA did not establish a formal definition for the term.
Given the absence of governmental guidance specifically addressing the use of “natural” labeling on personal care products and the lack of a consistent definition for “natural” in food products, Plaintiffs were unable to rely on governmental guidance to establish a reasonable consumer’s understanding of the term. This limitation was noted in a similar case, In re Kind, 627 F. Supp. 3d at 284, where it was emphasized that Plaintiffs could not depend on an objective, regulatory definition of “All Natural” to demonstrate a reasonable consumer’s understanding due to the nonexistence of such a definition.
Secondly, Plaintiffs’ reliance on Named Plaintiffs’ testimony to establish a reasonable consumer’s understanding of “natural” was deemed inadequate. The Named Plaintiffs failed to provide evidence indicating that their perspectives on the term aligned with those of a reasonable consumer, as opposed to reflecting their individual subjective beliefs. CitingHughes v. Ester C Co., 330 F. Supp. 3d 862, 872 (E.D.N.Y. 2018), the Court concluded that the Plaintiffs’ “conclusory allegations and ‘anecdotal’ testimony” were insufficient to create a genuine issue of material fact regarding deception.
Thirdly, Plaintiffs’ reliance on Tom’s internal documents and the testimony of Defendants’ employees to substantiate their theory of deception was rejected. Tom’s internal documents did not offer a foundation for determining a reasonable consumer’s understanding of “natural.” The statements made by Defendants’ employees were deemed reflective of individual views rather than representing the collective understanding of a reasonable consumer regarding the term “natural.”
Plaintiffs’ failure to present evidence supporting the claim that a reasonable consumer interprets “natural” as alleged resulted in the absence of a triable issue of fact regarding deception. Consequently, Defendants were deemed entitled to summary judgment concerning Plaintiffs’ claims under CLRA, FAL, UCL, FDUTPA, NYGBL, and breach of express warranty.
The remaining motions to exclude the reports and testimony of the experts Zhaohui Sunny Zhou, Colin B. Weir and J. Michael Dennis were denied as moot.
Defendants sought to decertify the classes, emphasizing the district Court’s obligation to monitor class decisions as the evidentiary record evolves. The Court may decertify a class if Rule 23 requirements are not met. A crucial Rule 23(b)(3) requirement is that common questions of law or fact must predominate over individual ones. Through the course of discovery, it became evident that Plaintiffs lacked support for their claim that reasonable consumers understood Tom’s use of “natural” to imply the absence of synthetic or highly chemically processed ingredients. The absence of generalized proof of deception led to a lack of common issues of fact, prompting the Court to decertify the classes.
Held
The Court issued a final ruling on January 04, 2024 granting Tom’s motion for summary judgment. Defendants’ motion to exclude the opinions of Sowers was also granted. Furthermore, Defendants’ motion to decertify the classes was granted. Lastly, any remaining motions by Defendants, including the motions to exclude Zhaohui Zhou, J. Michael Dennis and Colin B. Weir were denied as moot, implying that these motions were no longer relevant or necessary for consideration.
Key Takeaway
In the legal proceedings against Tom’s and Colgate, the expert testimony of Brian M. Sowers played a pivotal role in assessing consumer perceptions of the “natural” labeling on toothpaste and deodorant products. Sowers designed surveys to gauge how consumers understood the term “natural,” and his conclusions were challenged during the litigation. The Court ultimately excluded Sowers’s report and testimony, highlighting flaws in his approach. The Court found that Sowers defined “natural” and “artificial” solely in relation to each other, leading to ambiguity in respondents’ answers. This lack of clarity undermined the reliability of Sowers’s findings, contributing to the Court’s decision to grant summary judgment in favor of the Defendants. The exclusion of Sowers’s expert testimony reinforced the importance of clear definitions and methodologies in expert reports to establish a meaningful understanding of consumer perceptions in deceptive labeling cases.
This case arose from a fire at the vacant home of Richard F. Vetter and Bryan Miner (collectively, “Plaintiffs”) on March 9, 2021. The Plaintiffs were renovating their home and had applied Varathane Classic Wood Stain, manufactured by Defendant Rust-Oleum Corporation, to their wood floors. After applying the stain, they left the applicators saturated in the product at the home. A fire then occurred, which Plaintiffs alleged was caused by the spontaneous combustion of the applicators soaked with Varathane. In response, the Defendant, for the purpose of the pending motions, does not contest the Plaintiffs’ claim that the rags caught fire spontaneously.
Following the incident, the Burlington County Fire Marshal conducted an investigation and concluded that the probable ignition sequence involved the spontaneous combustion of stain-soaked rags and rollers, leading to the ignition of available combustible material in the area and resulting in a self-sustaining fire. All wood stains, including Varathane, are composed of drying oils, semi-drying oils, and drying agents to properly cure the product. These substances undergo oxidation while they cure, or dry, releasing heat. The presence of drying agents accelerates oxidation. If the heat generated during this process is unable to escape, there exists a potential risk of spontaneous combustion.
The Varathane wood stain label featured a warning about the risk of spontaneous combustion, along with instructions on how to prevent such incidents. The front of the product label included a prominent warning stating that the liquid and vapor are combustible, with potential harm if swallowed. The back panel contained a specific caution outlined in red, emphasizing the danger of spontaneous combustion for items like rags and steel wool if improperly discarded. The warning instructed users to place such materials in a sealed, water-filled, metal container immediately after use. Additionally, disposal guidelines were provided, advising users to dispose of contaminated absorbent, container, and unused contents in compliance with local, state, and federal regulations.
As a result of the fire incident, the Plaintiffs initiated legal action by asserting claims against the Defendant. These claims included strict liability, negligence, and breach of implied warranty. The basis for all these claims was the alleged failure to provide adequate warnings and a design defect related to spontaneous combustion. More specifically, the Plaintiffs contended that the Varathane label did not contain sufficient warning regarding the risk of spontaneous combustion. Furthermore, they argued that Varathane should have been designed to eliminate any potential risk of spontaneous combustion.
The Plaintiffs enlisted the services of engineering expert Jennifer Morningstar, who authored reports examining the involvement of Varathane in the fire that occurred at the Plaintiffs’ home in March 2021. Morningstar underwent a deposition on January 10, 2023.
In her report, Morningstar provided an explanation of the spontaneous combustion process and the role of drying oils and agents in that process. She specifically discussed the drying oils present in the Defendant’s wood stain product. Morningstar’s opinion highlighted the hazard of spontaneous combustion in oil-based wood stains due to the curing reaction of the drying oils. She recommended eliminating this hazard by excluding drying oils and agents from the product. Morningstar pointed out that wood stains, including those sold by the Defendant, could use water as a carrying medium for pigment instead of oil, categorizing them as waterborne, water-based, or acrylic. According to her, stains in this category, lacking drying oils and agents, did not pose the hazard of spontaneous combustion associated with their use.
In formulating her opinion, Morningstar relied on a report from the National Fire Protection Association and several studies discussing waterborne coating wood stains, among other documents. Her ultimate opinion, as outlined in her report, asserted that Rust-Oleum’s Varathane Classic Penetrating Wood Stain was defectively designed because a reasonably safer design, in the form of a waterborne substitute product, existed. Morningstar contended that this alternative product would have prevented harm without substantially impairing the reasonably anticipated or intended function of Varathane. She emphasized the clear safety benefits of altering the design, outweighing any potential disadvantages associated with the proposed alternative design, including any diminished usefulness. This opinion was reiterated in her rebuttal report, where she explained that the presence of water in waterborne wood stains is what eliminates the spontaneous combustion hazard from these substances.
Defendant moved for summary judgment, arguing the claims were preempted by federal law and that its warnings were adequate. Defendant also moved to preclude testimony from Plaintiffs’ expert Jennifer Morningstar. Plaintiffs cross-moved for partial summary judgment on the affirmative defenses.
Chemical Engineering Expert Witness
Jennifer Morningstar, a professional engineer licensed in 2017 and Certified Fire and Explosion Investigator. She is President and Senior Consulting Engineer of Warren Forensics, where she performs specialized consulting related to property loss and unintentional injuries resulting from industrial accidents, fire, and explosions. Morningstar has an undergraduate degree in chemical engineering from Virginia Polytechnic Institute and State University, as well as a Masters of Business Administration from the University of South Carolina. As an expert witness, Morningstar has been deposed several times in litigation matters. She also has experience, as a chemical engineer, working on the production of chemical products involving polymer and polymerization, though not specifically involving wood stains. She also has general experience with drying oils and additives.
Discussions by the Court
The Defendant filed a motion to preclude Morningstar from offering testimony, asserting that she lacked the qualifications to provide opinions on oil-based or water-based wood stains. The motion contended that Morningstar’s testimony was not grounded in reliable methodologies.
The admissibility of expert witness testimony in this case was governed by Federal Rule of Evidence 702 and the Daubert standard, which outlines three factors: the expert’s qualifications, the reliability of their methodology, and whether the testimony is pertinent to the matters at issue in the case. Citing, In re Paoli R.R. Yard PCB Litig. (In Re Paoli I), 35 F.3d 717, 741-43 (3d Cir. 1994), the Third Circuit emphasized the preference for admitting evidence sure to be of potential assistance to the trier of fact, but maintained the obligation to ensure reliability. Rule 702 was recently amended to require a demonstration from the proponent that the proffered testimony is more likely than not to meet admissibility requirements.
The Defendant contested the qualifications and reliability of Morningstar, focusing on the first two factors in the Daubert analysis. The Court, henceforth, limited its analysis to these aspects. Regarding Morningstar’s qualifications, the Defendant argued that she was not qualified to express opinions on oil-based wood stains. In contrast, the Plaintiffs asserted that Morningstar, being a chemical engineer, was well-qualified to provide opinions on various aspects, including the spontaneous combustion phenomenon, the composition of the Defendant’s product, its chemical propensity for hazards, a review of spontaneous combustion events related to such products, and the feasibility of an alternative, safer design for wood finishes. The Court sided with the Plaintiffs, agreeing with Morningstar’s qualifications in this context.
The Court, in evaluating the qualifications for an expert, emphasized a liberal approach, acknowledging that a broad range of knowledge, skills, and training could qualify an individual. The Third Circuit had previously expressed satisfaction with generalized qualifications. The Court deemed it an abuse of discretion to exclude testimony merely based on the expert not being considered the best qualified or lacking specific specialization. Despite the Defendant’s argument that Morningstar lacked a postgraduate degree and specific experience with wood stains, the Court did not narrowly interpret the requisite experience for qualifying as an expert in this case.
Morningstar possessed a chemical engineering degree, held a professional engineering license, and was certified as a fire and explosion investigator. With a background and experience that included serving as an expert witness in other lawsuits, she had specifically provided expertise in two cases concerning the involvement of wood stains in house fires. Given her qualifications and expertise, the Court determined that Morningstar was certainly qualified to express opinions on topics such as the process of spontaneous combustion, the role of drying agents in that process, the presence of drying agents in wood stains, and the existence of alternative products in the market. The Court held that these subjects fell within the scope of her background as a chemical engineer and fire and explosion investigator.
The Court noted that the strengths and weaknesses of an expert’s qualifications are typically considered in evaluating the weight of their testimony rather than its admissibility, citing Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996). Morningstar’s opinion in this case included the assertion that there was already an alternative product available on the market. The Court concluded that in Morningstar’s case, no such issues concerning the practicality of the recommended safety features and their familiarity with the relevant safety standards were present, as she opined that the water-based wood stain, already on the market, served as a viable alternative to the oil-based wood stain.
In assessing the reliability of Morningstar’s opinion, the Court applied the standard that when an expert testifies to scientific knowledge, their opinions must be grounded in scientific methods rather than subjective belief or unsupported speculation. The expert should have sound grounds for their belief. The Court considered the following factors to determine the reliability of expert opinions. These factors include whether the method involves a testable hypothesis, has undergone peer review, has a known or potential rate of error, maintains standards, is generally accepted, relates to established reliable methods, reflects the qualifications of the expert, and has non-judicial applications.
Courts possess considerable discretion in determining the reliability of expert opinions, as highlighted in Betterbox Commc’ns Ltd. v. BB Techs., Inc., 300 F.3d 325, 329 (3d Cir. 2002). In cases involving defective design, the Court typically considers various factors to assess reliability. These factors include federal design and performance standards, standards established by independent organizations, relevant literature, evidence of industry practice, product design and accident history, illustrative charts and diagrams, data from scientific testing, the feasibility of suggested modifications, and the risk-utility of such modifications.
The Plaintiffs contended that certain considerations in assessing reliability have limited relevance in this case. Morningstar’s opinion asserted that an existing product on the market was comparable to and safer than Varathane, without proposing new modifications. Therefore, factors such as the feasibility of suggested modifications and the risk-utility of those suggested modifications were deemed not particularly useful in this context.
The Defendant’s representation of Morningstar’s overall opinion is deemed inaccurate by the Court. Morningstar opined that Varathane’s risks could be mitigated with the existence of a safer design. While she did not explicitly mention the Consumer Product Safety Commission (CPSC) or its lack of cautionary labels for spontaneous combustion risk, the Court did not consider this omission as detrimental to the reliability of her opinion. Morningstar’s focus was not on mandating label identification of spontaneous combustion risk for Varathane. Instead, she asserted that the risk was reduced in water-based wood stains, an existing market product. Morningstar relied on the Safety Hierarchy, a standard she considered universally known, to support her opinion that the risk presented by oil-based wood stains could be eliminated. Additionally, she referred to literature, fire incident reports, and data to discuss the frequency of fires involving oil-based wood stains. Morningstar also delved into the distinctions in product design and substances between oil- and water-based wood stains.
The absence of any testing conducted by Morningstar does not automatically cast doubt on the reliability of her opinion, according to the Court, citing In re Rail Freight Fuel Surcharge Antitrust Litig., 292 F. Supp. 3d. 14, 76-77 (D.D.C. 2017), that rejected similar arguments, the Court stated that challenges related to the absence of certain analyses do not qualify as Daubert arguments, as they do not inherently question the reliability of the work performed by the expert. Overall, the Plaintiffs successfully demonstrated that it was more likely than not that Morningstar’s testimony met the admissibility requirements under Rule 702. The Court expressed confidence in the ability of the Defendant’s counsel to conduct vigorous cross-examination, present contrary evidence, and provide careful instructions on the burden of proof, allowing a jury to determine the weight afforded to Morningstar’s opinion. However, the Court agreed that Morningstar could not testify to the defective design of the product as it constituted an impermissible legal conclusion at the time of trial.
The Defendant filed a motion for summary judgment, asserting that State Farm-which it argues to be the real party in interest—having twice previously litigated this issue unsuccessfully, is now collaterally estopped from contesting the preemption of its warnings claim by the Federal Hazardous Substances Act (FHSA), that Plaintiffs’ claim is preempted by the FHSA, and that the Varathane label provides sufficient warning under the FHSA. Additionally, the Defendant argued that the Plaintiffs lacked necessary expert testimony to support their design defect claim, and even if Morningstar’s testimony was admitted, it would not satisfy the burden to establish a design defect. In response, the Plaintiffs filed a cross-motion for summary judgment on their failure-to-warn claim, contending that the FHSA does not preempt their claims. The Court determined that summary judgment was appropriate for Plaintiffs’ failure-to-warn claim but denied summary judgment for Plaintiffs’ defective design claim.
The Defendant asserted that the Plaintiffs’ failure-to-warn claim is both expressly and impliedly preempted by the Federal Hazardous Substances Act (FHSA). In response, the Plaintiffs filed a cross-motion seeking summary judgment on any affirmative defense asserting preemption or limitation by the FHSA. The Court aligned with the Defendant’s position, in line with the consensus of many other federal Courts, and concluded that the Plaintiffs’ claim was preempted by the FHSA.
Held
The Court granted in part and denied in part Rust-Oleum’s motion to preclude Plaintiff’s Expert Jennifer Morningstar’s testimony. The Court granted in part and denied in part Rust-Oleum’s motion for summary judgment, granting judgment on the failure-to-warn claim but denied summary judgment as to Plaintiffs’ defective design claim. The Court denied Plaintiffs’ cross-motion for partial summary judgment. 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 a legal case involving a fire allegedly caused by a wood stain product, the admissibility of expert testimony played a crucial role. The Court, guided by Federal Rule of Evidence 702 and the Daubert standard, assessed the qualifications and reliability of the engineering expert, Jennifer Morningstar. Despite the Defendant’s challenges to Morningstar’s qualifications, emphasizing her lack of postgraduate degree and specific experience with wood stains, the Court adopted a liberal approach in evaluating qualifications. Morningstar’s chemical engineering degree, professional engineering license, certification as a fire and explosion investigator, and prior experience as an expert witness in similar cases were deemed sufficient. The Court emphasized that the strengths and weaknesses of an expert’s qualifications are factors for weighing testimony, not excluding it.
Regarding the reliability of Morningstar’s opinion, the Court applied factors such as testability, peer review, error rate, standards, general acceptance, relationship to established methods, expert qualifications, and non-judicial uses. Morningstar’s reliance on existing market products as alternatives and her focus on eliminating risks rather than proposing modifications influenced the Court’s assessment. The Court acknowledged Morningstar’s use of established standards like the Safety Hierarchy and her reference to literature, fire incident reports, and data in forming her opinions. The absence of testing conducted by Morningstar was not deemed a decisive factor against reliability.
Ultimately, the Court found that Morningstar’s testimony met the admissibility requirements under Rule 702. The Court expressed confidence in the adversarial process, emphasizing the role of vigorous cross-examination, presentation of contrary evidence, and careful jury instructions in assessing the weight of Morningstar’s opinions. However, the Court ruled that Morningstar could not testify to the defective design of the product as it constituted an impermissible legal conclusion.
The case involved a dispute over insurance coverage concerning damages resulting from a roof leak in a residential property. Great Lakes Insurance SE, the Defendant, denied the Plaintiff’s claim, contending that the leak stemmed from rot, wear and tear, and an accumulation of pine needles—causes not covered under the policy. The crux of the matter for the Defendant’s motion for summary judgment was whether the Plaintiff could demonstrate that the leak arose from a storm, a covered cause of loss. The Court ruled in favor of summary judgment, determining that the Plaintiff failed to present sufficient evidence to establish that the loss fell within the policy coverage, thereby supporting the Defendant’s decision to deny the claim.
Apex REI Series, LLC, managed by Rahim Meghani, owned and leased a residential property in Humble, Texas. Great Lakes Insurance SE provided insurance coverage for the property from January 1, 2020, to January 1, 2021, safeguarding against “direct physical loss” unless specifically excluded or limited in the policy.
The insurance policy contained exclusions barring coverage for damages caused, directly or indirectly, by “surface water,” “fungus,” wet or dry rot, and bacteria. Additionally, the policy imposed limitations, specifying that damage to the interior of any building or structure, or personal property within, resulting from rain, snow, sleet, ice, sand, or dust—whether wind-driven or not—was not covered unless the building or structure initially sustained damage to its roof or walls due to a Covered Cause of Loss. In essence, coverage for interior damage resulting from rain, snow, or similar elements required prior damage to the roof or walls caused by a covered incident, through which the rain, snow, sleet, ice sand or dust entered. Put simply, the insurance policy didn’t provide coverage for damage caused by water entering the property through the roof, unless the leak itself resulted from a “Covered Cause of Loss,” specifically a direct physical loss like a windstorm or hailstorm.
In April 2020, tenants informed Meghani about water seeping into the home through the roof, leading to interior damage. Meghani promptly filed a claim with Great Lakes, citing April 6, 2020, as the date of loss. Great Lakes appointed an adjuster who assessed the property without inspecting the roof directly. Upon the adjuster’s findings attributing the interior damage to surface water in the backyard and mold growth—both excluded causes under the policy—Great Lakes rejected the claim.
Around June or July 2020, Meghani requested a second inspection of the property. Interestingly, without a direct request from Meghani, Great Lakes initiated a new claim, dating it June 30, 2020. They then appointed a second adjuster to conduct a reinspection of the property. This subsequent assessment by the adjuster determined that the roof leak hadn’t been a result of a storm and that neither wind nor hail had caused damage to the roof.
In October 2020, Great Lakes appointed a third adjuster to examine the property. This adjuster’s report highlighted findings of “rotted fascia” and “heavy rot on the roof decking.” Additionally, observations noted “heavy granule loss and reduced pliability of the shingles.” The adjuster also remarked that the roof vents seemed to be part of the original construction of the home.
In December 2020, Great Lakes denied the June 30, 2020, claim, explaining that the leak had been caused by rot, wear and tear, and lack of maintenance—all excluded causes of loss under the policy.
Following the denial, Meghani engaged OnPoint Claim Recovery to assess the property damage. OnPoint conducted an inspection and tasked adjuster Ana Nguyen with preparing a loss estimate and report. Nguyen’s assessment attributed the primary cause of the property damage to an “intense wind and hailstorm.”
However, in July 2021, Great Lakes enlisted an engineer to inspect the property. The engineer’s findings diverged, asserting that the roof leak hadn’t stemmed from a windstorm or hailstorm but rather from “pine needles that had accumulated within the roof valley.”
Plaintiff, Apex REI Series, LLC asserted claims for breach of contract, violations of the Texas Insurance Code, § 542.051 et seq., and breach of the duty of good faith and fair dealing against the Defendant, Great Lakes Insurance SE, seeking damages for “the loss of the benefits that should have been paid pursuant to the Policy.”
Great Lakes has moved for summary judgment, and to exclude Ana Nguyen’s expert testimony, report, and estimate.
Insurance Coverage Expert Witness
Ana Nguyen is the Founder and CEO of OnPoint Claim Recovery Services. She is a Licensed Professional Public Adjuster, among other roles, with over 20 years of administrative and managerial experience in the insurance and healthcare sectors. Ana Nguyen has helped victims of flood damage, roof damage and other home damages recovery claims.
Discussion by the Court
According to Texas law, the insured is responsible for demonstrating that a loss falls within the coverage specified in an insurance policy. Once the insurer demonstrates that an exclusion is applicable, the insured must then prove the application of an exception to that exclusion. This was established in the case Fiess v. State Farm Lloyds, 392 F.3d 802, 807 (5th Cir. 2004).
Great Lakes contends that Apex failed to provide evidence that the property sustained damage due to a covered loss within the policy period. They highlighted Meghani’s deposition testimony, noting his lack of recollection regarding specific weather events in April and June 2020, along with Apex’s failure to determine the precise cause of the leak. Great Lakes argued that Meghani’s testimony about a roof leak causing interior damage during the policy period lacked legal sufficiency.
In response, Apex asserted that pinpointing the exact date of loss wasn’t a requirement. They emphasized that every date associated with the claim for roof and property interior damage fell within the policy period. Apex relied on Meghani’s testimony, affirming the prompt filing of the claim following tenant reports and the absence of prior roof or water issues before April 2020. Additionally, they referenced the expert report, estimate, and affidavit from Nguyen to support their position.
Nguyen’s affidavit highlighted that, drawing upon expertise and experience as an adjuster, along with an assessment of Property photos and scope notes from an OnPoint Claim Recovery field adjuster, the evaluation led to a conclusion. Nguyen stated that, considering conversations with Meghani, who possessed knowledge of the Property’s condition before and after the storm, along with the claim’s history, the observed damage detailed in the estimate pointed to being a result of a wind and/or hail storm occurring within the policy period.
Nguyen’s report concluded that the “primary cause” of the property damage was an “intense wind and hailstorm.” This determination was based on findings from a weather report by HailTrace, indicating significant weather conditions with winds reaching 60 mph and hail up to 1.25 inches—conditions capable of causing substantial property damage at the time when the homeowner noticed the damage and leaks. Nguyen also observed that hailstones had created notable dents and punctures on the roof, causing several shingles to be dislodged and exposing the underlying wood. Additionally, there were golf ball-sized indentations on the soft metals, aligning with the reported hail impact.
Rule 702 “charges trial courts to act as ‘gate-keepers,’ making a ‘preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.’”
Great Lakes submitted a motion to exclude Nguyen’s report, estimate, and affidavit based on Federal Rule of Civil Procedure 702. Their argument centered on the assertion that Nguyen’s opinion attributing the damage to a wind or hailstorm during the policy period was considered conclusory. They contended that Nguyen’s conclusion contradicted Meghani’s testimony, leading them to seek the exclusion of Nguyen’s findings and statements from consideration.
The Court determined that Nguyen’s causation opinion lacked specificity and was unduly conclusory. Nguyen’s assertion regarding the damage’s cause rested on her general “skills, knowledge, training, and experience,” without detailing specific observations supporting the conclusion of wind or hail as the cause. Despite referencing a weather report from HailTrace, Nguyen didn’t provide the report’s data or specific dates of relevant wind or hail events. The Court found that that Nguyen’s causation opinion was “connected to existing data only by [her] ipse dixit.”The Court deemed Nguyen’s causation opinions as unsupported and consequently, her report, estimate, and affidavit were excluded from the summary judgment record.
Without Nguyen’s causation opinion, Apex lacked substantial evidence to support its position on the cause of the damage. Meghani’s deposition testimony only indicated that the roof began leaking when reported by tenants in April 2020, falling short of establishing the damage resulted from a covered loss during the policy period. Under the policy, water damage from a roof leak is covered if caused by a “Covered Cause of Loss,” such as a wind or hailstorm. However, all evidence, excluding Nguyen’s inadmissible opinion, indicated that the cause wasn’t covered.
Great Lakes’ adjuster attributed the roof leak to “heavy rot” in the roof decking surrounding the HVAC Vent, also noting “wear and tear,” improper maintenance, and repairs as contributing factors. Furthermore, another adjuster from Great Lakes found no wind or hail damage to the roof. The engineer hired by Great Lakes similarly concluded that neither wind nor hail had caused roof damage, attributing the leak to pine needles accumulating within the roof valley. Apex did not contest that these identified causes were not covered losses under the policy terms. Therefore, considering the evidence, it supported the conclusion that the identified causes were not within the policy coverage.
The Court noted that Apex failed to raise a factual dispute material to determining whether the property was damaged by a covered loss during the policy period.
Great Lakes contends that Apex’s extra-contractual claims beyond breach of contract should be dismissed since Apex’s breach of contract claim itself lacks merit, and Apex hasn’t presented any distinct injury apart from the loss of policy benefits. Apex acknowledges its sole injury as the loss of policy benefits but argues that its extra-contractual claims persist based on the assertion that there’s sufficient evidence linking the damages to a storm within the policy period.
However, according to legal standards, an Insurance Plaintiff can pursue extra-contractual claims distinct from the breach of the insurance policy only if the alleged statutory violations led to an injury separate from the right to recover policy benefits. As clarified, Apex’s breach of contract claim doesn’t stand legally, and Apex hasn’t put forward any separate injury beyond the denial of policy benefits. Consequently, the Court deems summary judgment appropriate concerning Apex’s extra-contractual claims.
Held
The Court granted Great Lakes’ motion for summary judgment as well as motion to exclude Ana Nguyen’s expert testimony, report, and estimate.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways:
Expert testimony in insurance claims plays a critical role in establishing causation and substantiating claims within the policy coverage.
In this case, Nguyen’s expertise as an adjuster was essential in linking the property damage to a wind or hailstorm during the policy period. However, the Court excluded Nguyen’s opinions, finding them lacking in specificity and overly conclusory. Without Nguyen’s testimony, Apex struggled to provide substantial evidence supporting their claim of a covered loss.
The exclusion of Nguyen’s opinions left Apex reliant solely on Meghani’s deposition testimony, which fell short in establishing the damage as a covered loss within the policy period. While Apex contested the exclusion, arguing that pinpointing the exact date of loss wasn’t obligatory and emphasizing that reported dates fell within the policy period, this was insufficient without expert testimony to substantiate the claim.
The insurer, Great Lakes, reinforced their stance by presenting adjusters’ and an engineer’s assessments that attributed the roof leak to causes not covered under the policy. These findings, unchallenged by Apex, further undermined the assertion of a covered loss during the policy period.
Ultimately, the exclusion of crucial expert testimony weakened Apex’s position in demonstrating a covered loss, leading the court to rule in favor of Great Lakes on both the breach of contract and extra-contractual claims due to the absence of sufficient evidence and distinct injury beyond the denial of policy benefits.
Freedom Arms manufactured the Model 83 Revolver, a single-action handgun firing a .454 Casull cartridge, designed for defense against large animals. This revolver incorporated a manual safety feature to prevent accidental discharge. The accompanying manual, available online or through various channels, contained numerous warnings against mishandling and provided explicit instructions on using the safety features. The safety mechanism of the Model 83 revolver involved drawing the hammer into the “safety bar” or “safety notch” position. This action engaged a “hammer block” to prevent the hammer from striking the firing pin and accidentally discharging the weapon. The manual consistently emphasized in bold and capitalized text the critical warning to never handle the Casull revolver with a live cartridge in the cylinder chamber aligned with the barrel and firing pin unless fully prepared to shoot at a target. The manual also included step-by-step instructions on how to engage the “hammer block” safely. It also explicitly advised against carrying the revolver in the field with a live cartridge in the chamber aligned with the barrel and firing pin. The company’s warranty guaranteed the firearm’s quality to the original purchaser, defining terms and limitations, and explicitly stating that the written limited warranty superseded any other implied warranties, such as merchantability or fitness for a specific purpose.
William Hyter bought a used Freedom Arms Model 83 handgun for bear protection but didn’t receive any manuals or instructions upon purchase. Despite his prior experience with firearms, he didn’t seek information about this specific revolver. While metal detecting with his son in a rocky-bottomed creek in bear territory, the handgun fell from his shoulder holster, striking a rock and accidentally firing a bullet into his shoulder. All chambers of the revolver were loaded with live rounds, the safety was disengaged, and the hammer rested directly over a live cartridge when the incident occurred.
After his injury, on October 30, 2019, William and Sandra Hyter filed this action. In their Complaint, they asserted eight causes of action against the Defendants: (1) strict liability, (2) failure to warn, (3) breach of implied and actual warranty, (4) failure to recall/retrofit, (5) violation of consumer protection laws, (6) ultra-hazardous activity, (7) negligence, and (8) punitive damages. Later, Plaintiffs withdrew their cause of action for “ultra-hazardous activity.”
Defendant Freedom Arms, Inc. (“Freedom Arms”), moved in limine to preclude Plaintiffs William and Sandra Hyter’s (“Plaintiffs” or “the Hyters”) expert, Jack Belk and for summary judgment on the Hyter’s claims. Plaintiffs responded in opposition to summary judgment and cross-moved for summary judgment in their favor.
Firearms Expert Witness
Jack Belk Jr. is a firearms expert witness from Idaho. He graduated from the Law Enforcement Minimum Standards School in 1970. Currently, Jack Belk specializes in building, modifying and designing fine sporting firearms as well as analyzing firearms designs and functions.
Discussion by the Court
Belk, as the expert witness presented by the Plaintiffs, outlined two purported design flaws in the Model 83: the absence of a “transfer bar” safety and a “cylinder gap” for checking loaded status. He detailed his methodology in reaching these conclusions, having examined the Model 83 physically and via video. His analysis led him to identify three potential scenarios where the firearm could discharge without trigger manipulation, specifically emphasizing the risk of a “drop fire” incident if the gun fell with the hammer on the firing pin. Belk also discussed alternative designs, referencing the Model 97 and suggesting that a “transfer bar” safety, present in the Model 97, could potentially be implemented in the Model 83 to mitigate or eliminate the risk of unintended discharges.
The Court determined that while Belk suggested the feasibility of incorporating a “transfer bar” safety system from one Freedom Arms handgun to the Model 83, his analysis lacked depth. Although noting structural similarities between the firearms, Belk didn’t substantiate why or how this safety system could be integrated into the Model 83. This analytical gap hindered the Court’s ability to evaluate the scientific validity of his conclusion. Similarly, Belk’s assertion regarding the absence of a “cylinder gap” suffered from the same flaw. Merely identifying a feature in one firearm couldn’t support the argument that its absence in another constituted a design flaw without further analysis or reasoning.
Defendants contended that Belk should be prohibited from asserting that any purported defect directly caused Hyter’s injury due to his lack of employing a specific methodology to evaluate causation. While the Court comprehended the methodology Belk applied—drawing inferences from firearm features and technical experience to derive conclusions about causation—the Plaintiffs failed to establish its reliability as an admissible methodology for presentation to a jury.
Defendants sought to prevent Belk from providing an opinion on the adequacy of warnings for the Model 83 revolver, claiming he lacked qualification for such an assessment. Belk clarified that he did not intend to offer an opinion on this matter, which was evident in his expert report. The Court declined to preemptively exclude an opinion that hadn’t been presented. However, if Belk were to attempt such testimony during trial, Defendants retained the right to object at that time.
Defendants argued to exclude several of Belk’s opinions as irrelevant. The Court agreed that Belk’s opinion about the Model 83’s lack of a “cylinder gap” was irrelevant. Additionally, the Court found Belk’s opinion on causation, specifically regarding a “drop fire” causing Hyter’s injuries, lacked proven reliability. Concerning Belk’s opinion on the Model 83 firing without a trigger pull, the Court agreed that certain aspects—such as the firearm discharging upon impact when held or if the hammer was manipulated—were not relevant to this case. However, Belk’s opinion that the Model 83 could “drop fire,” consistent with the incident where Hyter’s firearm discharged upon being dropped and striking a rock, was deemed relevant. Nonetheless, Belk’s opinions about other ways the Model 83 could fire without a trigger pull were deemed irrelevant to the matter at hand.
Defendants sought to exclude Belk’s opinions under Federal Rule of Evidence 403, claiming they were unfairly prejudicial, risked confusing the issues, and might mislead the jury. Despite narrowing the scope of Belk’s permissible opinions, the Court opted not to impose further restrictions on Belk’s testimony under Rule 403 at that juncture. However, the Court permitted Defendants to renew any Rule 403 objections during Belk’s actual trial testimony if they found it necessary.
Freedom Arms moved for summary judgment dismissing each of Plaintiffs’ strict liability, failure to warn, breach of implied and actual warranty, failure to recall/retrofit, violation of consumer protection laws, ultra-hazardous activity, negligence and punitive damages claims. Plaintiffs withdrew their ultrahazardous activity claim.
Freedom Arms’ motion for summary judgment was granted in part and denied in part by the Court with Plaintiffs’ strict liability claim surviving summary judgment.
Plaintiffs filed a cross-motion for summary judgment, contending that a prior judgment against Freedom Arms in an Ohio case should dictate the outcome of their design defect claim in this case. Additionally, they argued for summary judgment in their favor on multiple fronts: the failure to retrofit or recall claim, breach of warranties claim, causation, negligence claim, strict liability claim, and punitive damages. Freedom Arms countered, stating that Plaintiffs misinterpreted and misapplied the principles of claim and issue preclusion in their argument.
The Court noted that according to Ohio law, for offensive application of issue preclusion, mutuality of parties is crucial, requiring all present parties to be bound by the prior judgment. Plaintiffs sought to use issue preclusion against Freedom Arms but failed to demonstrate mutuality, as the prior judgment in Taylor v. Freedom Arms involved different parties and a distinct incident. Claim preclusion didn’t apply either because the claims in the current case were not part of the same factual background as those in Taylor v. Freedom Arms. The Taylor case involved an incident where a coat snag caused the revolver’s hammer to partially draw back and discharge, a circumstance entirely separate from the incident in the present case.
The Court held that Plaintiffs were not entitled to summary judgment on the Defendant’s duty to retrofit or recall claim or on the issues of breach of warranties, causation, comparative fault, strict liability, negligence, or punitive damages.
Held
Freedom Arm’s Motion in Limine to preclude Jack Belk was granted. Freedom Arm’s Motion for Summary Judgment was granted in part and denied in part. Plaintiffs’ Cross-Motion for Summary Judgment was denied. 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, the credibility and admissibility of expert witness testimony, specifically that of Jack Belk, emerged as a pivotal aspect. Belk’s testimony centered on purported design flaws in the Model 83 revolver, including the absence of a “transfer bar” safety and a “cylinder gap.” However, the Court scrutinized the depth and scientific validity of Belk’s analysis. It highlighted a critical analytical gap, particularly regarding the integration of safety systems from one firearm to another, which hindered the assessment of Belk’s conclusions. The Court underscored the necessity for expert opinions to be substantiated with comprehensive reasoning and analysis to be deemed reliable for jury consideration.
Moreover, the Court ruled on the relevance of Belk’s opinions, excluding certain aspects that lacked relevance to the case, such as opinions on the “cylinder gap.” Additionally, the Court scrutinized Belk’s opinions on causation, especially regarding the potential scenarios of the Model 83 discharging without trigger manipulation, emphasizing the importance of a methodology’s reliability in establishing causation.
The Court’s decision not to restrict Belk’s testimony under Rule 403 highlighted the balance between potentially prejudicial or confusing evidence and the need for a comprehensive evaluation during trial. This case emphasized the pivotal role and stringent criteria for the admissibility of expert witness testimony, underscoring the necessity for methodological rigor, relevance, and scientific validity in supporting expert conclusions before presentation to a jury.
This legal dispute stemmed from American Carbon Corporation (ACC) allegedly breaching a lease granting exclusive mining rights for coal owned by Big Sandy in Pike County, Kentucky. ACC was allowed to mine the “Demised Coal,” defined as mineable and merchantable coal within the property boundaries. In return, ACC was obligated to diligently mine, pay royalties, and reimburse tax payments for the coal.
The lease expired on February 1, 2021, and during the entire five-year term, ACC did not conduct any coal mining. ACC also failed to fulfill financial obligations such as paying minimum annual royalties, deficiency payments, or tax reimbursements to Big Sandy. Approximately three months post-expiration, ACC notified Big Sandy via email that it considered the Demised Coal unmineable and unmerchantable without a capital investment from Big Sandy, using this as justification to excuse itself from lease obligations. ACC consistently argued it was not obliged to perform duties due to the coal’s alleged unmineable and unmerchantable state. Subsequently, on October 25, 2021, Big Sandy initiated legal action in this Court, alleging three counts of breach of contract. The lawsuit sought pre-judgment and post-judgment interest along with attorneys’ fees.
To support its position, ACC presented Bill Johnson as an expert. Big Sandy filed a motion for summary judgment as well as a motion to exclude Johnson’s testimony, citing ACC’s failure to disclose crucial information as required by Federal Rule of Civil Procedure 26(a)(2)(B)(ii). Big Sandy contended that Johnson’s expert opinions were unreliable, irrelevant, and lacked disclosed supporting evidence, urging the Court to exclude them.
Big Sandy claimed ACC breached the Lease by failing to diligently mine the Demised Coal, pay deficiency payments, and reimburse tax payments related to the coal. Big Sandy sought summary judgment on the diligent mining claim, asserting that mineability and merchantability were objective inquiries under Kentucky law. They argued ACC did not use the alternative dispute process outlined in the lease and was estopped from contesting its mineability or merchantability claims due to earlier representations.
Regarding deficiency and tax payments, Big Sandy argued no agreement excused these payments, seeking interest and attorney’s fees if successful. ACC countered that the coal was not mineable or merchantable without a substantial loan from Big Sandy, citing market turmoil and the pandemic. ACC argued that a March 7, 2017 email exchange provided notice that the coal was not mineable and merchantable, and formally altered ACC’s obligation to pay Big Sandy the royalties and tax payments. Additionally, ACC argued that an oral agreement, despite falling under the Statute of Frauds, could act as a waiver, excusing ACC from fulfilling its obligations.
The Court ruled ACC’s belief in profitability was not relevant to mineability or merchantability. ACC admitted no physical conditions hindered mining. ACC points to no provision in the lease that excused its obligation to diligently mine the Demised Coal unless it would be unprofitable to do so.
ACC had relied on Mark Jensen’s deposition, a corporate representative, to support an oral agreement related to minimum royalties. However, Jensen’s deposition didn’t explicitly mention an oral agreement to suspend deficiency or tax payments. Instead, he indicated an oral agreement tied to production forecasts and minimums based on an anticipated loan to restart the mine. ACC failed to clarify the impact of this on provision § 4.7 of the lease, which mandated deficiency payments if Production Royalties fell below the Minimum Annual Royalty.
Even if there was an oral modification regarding minimum calculations, ACC didn’t explain how this alteration affected its obligation to pay deficiencies and taxes as per the lease. The link between the oral agreement on production forecasts and minimums and the modification of ACC’s payment obligations for deficiencies and taxes, as specified in the lease, remained unclarified in ACC’s Response.
However, both parties acknowledged a disagreement over material facts, preventing a summary judgment on Big Sandy’s breach of contract regarding damages for the diligent mining claim. Consequently, the issue of damages was scheduled to be settled in subsequent proceedings, and no judgment favoring Big Sandy would be entered until resolution of the Plaintiff’s claim for damages.
Mining Engineering Expert Witness
Bill Johnson has a Bachelor’s degree in Mining Engineering from the University of Kentucky and holds Professional Engineer certifications in multiple states, including Kentucky. He is the owner of Mountain Professional Services—an engineering consulting firm. He worked in the coal industry as a Mine Manager and Engineer for 32 years. He has extensive managerial skills overseeing all facets of the Mining, Permitting, and Reclamation process.
Discussions by the Court
Big Sandy persisted in seeking the exclusion of Johnson’s opinion, citing several reasons. They argued that Johnson’s opinion relied on market conditions rather than the physical characteristics of the coal, thus applying an incorrect standard and rendering the opinion unhelpful to the fact-finder. Additionally, Big Sandy claimed that Johnson hadn’t conducted a proper calculation regarding the profitability of mining the Demised Coal, thereby lacking support for his opinion based on market conditions. They also alleged that Johnson’s conclusions were drawn from undisclosed documents that were withheld in violation of Civil Rules, and further asserted that the remaining parts of Johnson’s opinions, aimed at rebutting those of Big Sandy’s expert David Newman, lacked any substantiating evidence from the record.
ACC defended Johnson’s opinions, asserting their reliability without the need for specific calculations. They argued that the lack of disclosures regarding the underlying data relied upon by Johnson was inconsequential, pointing out that Big Sandy hadn’t disclosed the underlying data from its expert witness. ACC emphasized that there was no attempt from Big Sandy to compel Johnson or the Defendant to provide additional information regarding the matter.
The Court found that Johnson’s opinions weren’t considered in the summary judgment analysis, which would warrant granting the Motion to Exclude. ACC had only briefly referenced Johnson’s testimony in response to the Motion for Summary Judgment, highlighting a material dispute regarding damages that required separate proceedings. Although ACC mentioned Johnson’s concerns about the damage calculations based on David Newman’s report, no specific citations from Johnson’s report supported these claims upon review. Johnson’s report primarily stated an opinion that none of the coal in Newman’s calculations was mineable or merchantable due to coal pricing and recovery percentages during a specific timeframe. ACC’s assertion of Johnson raising legitimate issues regarding damage calculations did not align with the content of Johnson’s report.
ACC had acknowledged that it wasn’t contending any defects rendered the Demised Coal unmineable or unmerchantable. They clarified that profitability wasn’t a factor in determining the coal’s mineability or merchantability according to Kentucky standards. This acknowledgment led to the conclusion that Johnson’s expert report wouldn’t assist the fact-finder in comprehending the evidence or deciding relevant facts. As a result, it could be excluded on these grounds.
Even if Johnson’s report had been considered in the Court’s analysis of the Motion for Summary Judgment, it was evident that ACC had not adhered to the rules regarding expert disclosures. Johnson, in his expert report, mentioned reviewing specific documents but revealed in his deposition that he had reviewed additional undisclosed materials, including documents from a Dropbox and his former employer, which ACC had not disclosed in written discovery.
ACC did not file a motion to exclude Big Sandy’s expert, so the Court dismissed the argument that ACC’s failure to disclose should be excused due to errors made by Big Sandy. The Court highlighted that this wasn’t a substantial justification or a harmless oversight. Additionally, ACC didn’t provide any legal basis or precedent supporting the idea that a Plaintiff must file a motion to compel information from expert reports before seeking relief in a motion to exclude. The Court pointed out that according to Rules 26(a) and 37(c), as well as Sixth Circuit precedent, failure to make proper disclosures could lead to automatic and mandatory exclusion without justification from the non-compliant party.
Held
Big Sandy’s motion for summary judgment was granted by the Court on each breach of contract claim. The Court also granted Big Sandy’s motion to exclude the testimony of Bill Johnson. However, the Court decided that the matter of damages will be resolved by subsequent proceedings and no judgment in favor of Big Sandy will be entered until the resolution of the Plaintiff’s claim for damages.
Key Takeaways:
The Court found Johnson’s opinions regarding whether the coal was mineable or merchantable to be irrelevant because ACC conceded it was not arguing there were defects with the coal that made it unmineable. Under Kentucky law, profitability is not part of the calculation for whether coal is mineable or merchantable. The Court also found ACC failed to comply with expert disclosure rules under Rule 26(a) by not disclosing all the information Johnson relied on in forming his opinions. ACC did not provide justification for this failure. The Court stated that exclusion of non-disclosed evidence is automatic under Rule 37(c) unless the failure was justified or harmless. Overall, the key takeaways regarding expert testimony are the importance of complying with expert disclosure rules and offering opinions relevant to the specific legal issues in the case. Irrelevant opinions or noncompliance with disclosure requirements can result in exclusion of the expert testimony.
This case arises from a stroke allegedly caused by a chiropractic adjustment performed by Dr. Frederick Stinner. In February 2015, Justin Brutosky began experiencing chronic back, neck, and head pain. To treat these issues, he periodically saw Stinner, a chiropractor at Madison Avenue Chiropractic Center. From early 2015 to September 17, 2018, Stinner performed 39 chiropractic cervical manipulation procedures on Justin. Though a cervical manipulation procedure is a non-invasive one, it does carry risks, including cervical artery dissection that can lead to stroke.
On September 17, 2018, Stinner performed another cervical manipulation on Justin. Within weeks, the 37-year-old Justin suffered an embolic stroke resulting from a cervical artery dissection in the same area of his neck where Stinner had performed the procedure. At the time, Stinner was aware Justin had a family history of stroke but did not know cervical manipulation could cause artery dissection and stroke. As such, he never informed Justin of these risks or suggested alternative treatments.
On September 29, 2020, Justin and his wife Suzana filed suit against Stinner for professional negligence and against Madison Avenue Chiropractic Group for vicarious liability. Suzana also brought a loss of consortium claim against all Defendants.
Defendant filed successive motions to bar the testimony of Plaintiff’s expert witnesses- Santosh B. Murthy and Eric G. Chesloff while the Plaintiff responded by filing a motion for partial summary judgment.
Medical Expert Witnesses
Dr. Santosh Murthy is an Associate Professor of Neurology at Weill Cornell Medical College and serves as the Associate Chief of the Division of Neurocritical Care at New York-Presbyterian Hospital/Weill Cornell. He earned his medical degree from Bangalore Medical College in India and completed his Neurology residency at Baylor College of Medicine. Murthy has a fellowship in Neurocritical Care from the Johns Hopkins University School of Medicine and holds a Masters in Public Health from the University of Texas. He is board certified in Neurology, has authored numerous publications, and received various awards and scholarships in his field.
Dr. Eric Chesloff is a licensed chiropractor in Pennsylvania. He earned his Doctor of Chiropractic degree from the Pennsylvania College of Chiropractic. He also holds a Doctor of Higher Science Education degree from Walden University and a Master of Science degree in Chemistry from Indiana State University. Chesloff has nearly 40 years of experience in private chiropractic practice.
Discussions by the Court
The Court first considered Stinner’s motion to exclude the testimony of Santosh Murthy. Stinner argued that Murthy, a neurologist, could not testify because he is not a chiropractor. He contended New Jersey’s Medical Care Access and Responsibility and Patients First Act (Patients First Act) requires experts to have the same specialty as the Defendant. The Patients First Act used to provide that an expert had to have the same type of practice and possess the same credentials as the Defendant health care provider, unless waived by the Court. However, the Court found that the same-specialty rule only applied if the party against whom or on whose behalf the testimony was offered was a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, and the care or treatment at issue involved that same specialty or subspecialty. Stinner had failed to show that he, being a chiropractor, fell within the category of medical practitioners covered by the Patients First Act. In fact, neither the American Board of Medical Specialties nor the American Osteopathic Association recognized a chiropractic specialty or subspecialty. Stinner did not raise any further arguments in support of his motion to bar Murthy’s testimony, and as a result, the motion was denied.
The Court next examined Stinner’s motion to exclude the testimony of Eric Chesloff. Chesloff is a chiropractor with nearly 40 years of experience. Stinner argued his conclusions improperly relied on other experts’ findings, lacked specificity about the September 17, 2018 procedure. Stinner also pointed to his failure to provide a detailed explanation of his opinion instead of offering a mere conclusion, which was a violation of New Jersey’s net opinion rule.
The Court upheld eight factors which are crucial in assessing the reliability of the expert testimony:
Whether the method had a testable hypothesis.
If the method has undergone peer review.
The known or potential rate of error.
The existence and maintenance of standards controlling the technique’s operation.
Whether the method is generally accepted.
The relationship of the technique to established reliable methods.
The qualifications of the expert witness testifying based on the methodology.
The non-judicial uses of the method.
After the District Court establishes that the testimony of the expert is based on “good grounds”, it is advisable to subject its validity to the adversary process, involving competing expert testimony and thorough cross-examination instead of excluding it from the scrutiny of jurors due to concerns about their ability to comprehend its intricacies or grasp its complexities.
The Court affirmed the reliability of Chesloff’s testimony due to his 40 years of extensive experience. Chesloff had examined pleadings, depositions, interrogatories, photographs, various medical records, and other documents, drafted a report, and opined that the standard chiropractic manipulative procedure was unlikely to cause vascular deficits, but applying excessive force during chiropractic manipulation increased the risk of harm, including arterial dissection. Stinner sought to exclude this testimony, but failed to provide a valid basis under Daubert for doing so.
Stinner’s argument that Chesloff improperly relied on the opinions of other medical practitioners was unfounded. There was no precedent or case law indicating that an expert couldn’t partially rely on the opinions of other experts and medical practitioners. Courts in the district routinely held that experts could consult a mix of objective data and subjective analysis from other experts to create an admissible report, citing I.B.E.W. Local Union 380 Pension Fund v. Buck Consultants. Furthermore, Chesloff’s lack of knowledge regarding the underlying facts went to the weight accorded to his report and testimony, rather than its admissibility.
Chesloff’s testimony was allowed by the Court to help the jury understand three key points: (a) the chiropractic standard of care, (b) the potential harm resulting from failure to adhere to this standard, including arterial dissection and stroke, and (c) the likelihood that Stinner had deviated from the standard of care by using excessive force. The Court deemed testimony from a chiropractor regarding the chiropractic standard of care relevant to the case and therefore permissible.
However, the Court ruled that Chesloff’s conclusions about Stinner’s September 17, 2018 cervical manipulation violating the standard of care and directly causing Justin’s arterial dissection and stroke were impermissible. The Court cited an analytical gap between the manipulation and these conclusions, asserting that they were based primarily on Chesloff’s personal assertions rather than concrete factual evidence. Chesloff’s report relied heavily on his lack of awareness regarding any other “medical predisposition that [Justin] may have had for cervical artery dissection and stroke.”
In summary, the Court allowed Chesloff’s testimony concerning the chiropractic standard of care, the consequences of non-compliance, and the likelihood of Stinner deviating from the standard of care. However, the Court found Chesloff’s testimony asserting that Stinner had indeed violated the standard of care on September 17, 2018, and caused Justin’s stroke to be inadmissible. As a result, the Court granted Stinner’s motion to bar Chesloff’s testimony in part and denied it in part.
In the case at hand, to establish a claim for negligence based on a lack of informed consent, the Plaintiff needed to prove four key elements:
The physician’s failure to meet the reasonably-prudent-patient standard for disclosure.
The occurrence of the undisclosed risk, leading to harm for the Plaintiff.
The decision not to consent to the operation or surgical procedure by a reasonable person under the circumstances, had they been adequately informed.
The operation or surgical procedure being a proximate cause of the Plaintiff’s injuries.
It was uncertain whether the Plaintiffs had sought summary judgment on all four elements of their claim for negligence based on a lack of informed consent. The Court determined that summary judgment was appropriate for the first element but had to be denied for the remaining elements.
Held
The Court denied Stinner’s motion to bar the expert testimony of Santosh B. Murthy. The Court after considering Stinner’s motion to bar the expert testimony of Eric Chesloff, granted this motion in part and denied it in part. Chesloff was permitted to testify regarding the chiropractic standard of care, the consequences of failing to comply with it, and the likelihood of Stinner had deviating from the standard of care. However, Chesloff was not allowed to testify that Stinner had, in fact, violated the standard of care on September 17, 2018, and caused Justin Brutosky’s stroke. Lastly, the Court addressed Plaintiffs’ motion for partial summary judgment. The Court granted this motion with regard to Stinner’s failure to comply with the reasonably prudent patient standard for disclosure. However, the Court denied the motion as it pertained to the remaining elements of Plaintiffs’ claim for professional negligence based on a lack of informed consent.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
This case demonstrates several important considerations for expert witness testimony. First, experts can rely on a mix of objective data and other experts’ analyses, as Chesloff permissibly did. Second, while experts can testify to causation generally, Courts may exclude opinions with too great an analytical gap between the facts and conclusions. Moreover, compliance with the applicable legal standards determines admissibility, including requirements for reliability, fit, and factual support. Here, the Court conducted a robust analysis of these standards. Finally, appropriate expert testimony should aid the factfinder on the disputed issues without invading its role to make ultimate determinations.
This case involved a putative class action lawsuit filed by four Plaintiffs – Nicole Krause-Pettai, Christy Stevens, Kevin Bolden, and Errol Carreon – against Defendant Unilever United States, Inc. The Plaintiffs claimed that they were deceived into buying Unilever’s deodorant and antiperspirant products because the oversized packaging created the illusion that the products contained more than competitors’ same-weight items.
The Plaintiffs brought claims under California’s consumer protection laws – the Consumers Legal Remedies Act (CLRA), False Advertising Law (FAL), and Unfair Competition Law (UCL). They alleged that much of the volume in Unilever’s products was nonfunctional slack fill. The Plaintiffs sought class certification on the basis that Unilever engaged in unfair and deceptive trade practices.
Unilever moved for summary judgment and also filed motions to exclude the testimony of the Plaintiffs’ two expert witnesses, Dr. Sher Paul Singh and Dr. Forrest Morgeson III. Unilever argued that federal law preempted the Plaintiffs’ state law claims regarding slack fill in drugs and cosmetics. This was an issue of first impression in the Ninth Circuit.
Packaging Expert Witness
Sher Paul Singh, Ph.D. is a highly qualified packaging expert with over 26 years of faculty service at the School of Packaging, Michigan State University. He has been widely published on packaging topics, has testified on these subjects, and provided consulting services to companies on a wide range of packaging issues, including those related to slack-fill.
Marketing Expert Witness
Forrest V. Morgeson, III, PhD. is Associate Professor in the Department of Marketing, Eli Broad College of Business, Michigan State University. He also serves as the Co-Director of the Doctoral Program in Marketing. Morgeson teaches marketing management, marketing strategy, and marketing research courses to graduate students. Morgeson’s research focuses on customer satisfaction and customer experience measurement and management. He completed his Ph.D. in 2005 from the University of Pittsburgh.
Discussions by the Court
The Court first addressed the issue of federal preemption. It held that while California’s specific slack fill regulations were preempted by the federal Food, Drug, and Cosmetic Act (FDCA), the Plaintiffs could still bring state claims alleging that the degree of slack fill rendered Unilever’s products misleading under the general federal prohibitions against misleading containers.
The Court then turned to Unilever’s motions to exclude the opinions of both of the Plaintiffs’ expert witnesses – Sher Paul Singh and Forrest Morgeson III.
Singh, serving as an expert witness, asserted that the accused products contained roughly 20% to 25% less product compared to their available capacity, and he categorized this reduction as entirely nonfunctional in nature.
For Singh, the Court found several problems with the facts and data underlying his opinions. First, Singh’s opinions about the “accused products” only seemed to be based on testing two of the three product designs at issue. The data for the third design was omitted due to an alleged “minor copying error.” Second, among the designs Singh did examine, he only looked at two samples of each kind of deodorant or antiperspirant stick. The Court stated that a sample size of two was a statistically weak basis to support such broad conclusions.
Defendant also questioned the the lack of clarity regarding the precise number and types of products that Singh had tested and examined. His testimony on this matter was inconsistent, as he alternately mentioned having sampled “ten sticks total” or conducting tests at two different times with “ten sticks” once and “eight sticks” another time. Additionally, he mentioned having analyzed around “20, 25” sticks, but this data was not documented in his report. The tables he used to summarize his “weight” and “volume” calculations did not provide much insight into the underlying data, and it remained unclear whether his findings were based solely on the five sticks identified in the first table or if there was overlapping data between the two tables. Furthermore, the mention of five brand names suggested the potential inclusion of various products with differing formulations, sizes, and scents. Singh’s testimony regarding the number of product containers he “examined” was similarly inconsistent, with estimates ranging from 30 to 60. He meant for his product photographs next to tape measures to constitute “visible data,” but could not recreate the complete dataset during his deposition.
The Court also found problems with Singh’s testing methodology and application. His report detailed how he determined the “percentage of slack fill” by measuring the relative heights of product containers and their enclosed products. He also mentioned using an “electronic balance” to weigh the deodorant after extracting it from the container. However, it was only during his deposition that he shed light on the process he followed to extract the product from the casings, which yielded unpredictable results. Before extraction, he mentioned placing the deodorant in the freezer for about ten minutes, followed by a refrigerator set to approximately 35 to 45 degrees for an unspecified duration. Some samples did not come out as expected, and some even broke. Additionally, there were instances where the product was left in the bottom of the container, making it impossible to extract. The number of deodorant sticks affected by these procedures remained unknown, and Singh did not clarify how he overcame these practical challenges or ensured a complete specimen for measurement.
Unilever raised concerns, particularly regarding the volume test. They argued that Singh inexplicably removed the twist-bottom dispensing “platform and internal components” before calculating a deodorant container’s space, thereby inflating his “maximum capacity measurements” and failing to account for the volume or space occupied by the removed components. The Plaintiffs did not provide a direct response to this accusation. Instead, they pointed out that both sides’ experts found roughly the same amount of total empty space in their analyses. However, the crucial distinction in the case was nonfunctional empty space, and here, the calculations sharply diverged: Unilever’s expert contended it was 0%, while Singh asserted it was 100%.
In any event, it is unclear which brands and stick designs Singh subjected to this debatable measurement program.
Overall, the Court held that Singh’s opinions failed to meet the reliability requirements of Federal Rule of Evidence 702. His opinions were not based on sufficient facts or data. Nor were his principles and methods reliable or reliably applied. Thus, the Court excluded Singh’s testimony.
Morgeson provided expert opinions regarding consumer behavior, including the following assertions: Firstly, consumers were inclined to spend limited time scrutinizing package labeling information and typically assumed that larger packages contained more product; Secondly, consumers seldom examined or comprehended net weight labeling on product packages; Thirdly, owing to these consumer tendencies and their limited familiarity with slack fill, Morgeson suggested that the features of Unilever product packaging implied that Unilever customers received less product than they had expected.
For Morgeson, the Court questioned whether his general expertise in consumer behavior could be reliably applied to opinions about Unilever’s specific consumers. Morgeson did not gather any facts or data related to the products at issue . He referenced no studies concerning the deodorant and antiperspirant market. The Court held that without a foundation explaining why research on food consumers could be extrapolated to this market, there was too great an analytical gap between Morgeson’s data and opinions.
The Court found that Morgeson applied no discernible scientific methodology. He merely reviewed general materials and prior research. But he did not analyze any specific data related to Unilever’s products or consumers. As such, the Court held that Morgeson’s testimony was not based on sufficient facts or reliable methods, and excluded his opinions.
The Court also granted summary judgment to Unilever on the Plaintiffs’ negligent misrepresentation and fraudulent and unfair prongs claims, because the Plaintiff not only failed to show that general consuming public and targeted consumers would be misled but the Court also could not find any predicate violation of law despite the Plaintiffs’ allegations and the Plaintiffs were also unable to prove the labeling or packaging was false.
Held
In conclusion, the Court granted Unilever’s motions for summary judgment and to exclude expert testimony. It denied the Plaintiffs’ motion for class certification as moot in light of the summary judgment ruling. The Court entered judgment in favor of Unilever on all claims and closed the case on September 30, 2023.
Key Takeaways
– The Court applied the Federal Rules of Evidence 702 analysis to assess whether the expert opinions were admissible. It looked at whether the testimony would help the fact-finder, was based on sufficient data, and applied reliable principles and methods.
– The Court found major deficiencies with the facts, data, methodology, and application used by both of the Plaintiffs’ proposed experts, Singh and Morgeson.
– For Singh, the Court found his testing sample size was too small, his dataset was ambiguous and not properly documented, and his testing methodology yielded unpredictable results.
– For Morgeson, the Court found his general consumer research couldn’t be reliably applied to this specific product market. He had no data points related to deodorant and antiperspirant consumers.
– The Court held that neither expert satisfied the reliability and relevance requirements for expert testimony under Rule 702.
The key takeaway is that Courts will rigorously examine the basis, methods, and fit of proposed expert opinions. Deficiencies in facts, unreliable methodologies, or lack of applicability to the specific issues can warrant exclusion.
