Expert Witness Profiler

Tag: terminated

  • Lost Wages Expert’s Commission Calculations Admitted

    Lost Wages Expert’s Commission Calculations Admitted

    Jenessa Dubey was employed by Concentric Healthcare Solutions, LLC from August 2016 until her termination on December 2, 2021. She has filed a lawsuit against Concentric and Robert Bales, alleging sex-based discrimination, sexual harassment, and unpaid wages.

    The case focuses on Dubey’s claims that, over several years, Bales engaged in conduct that created a hostile work environment during her time at the company.

    Plaintiff retained a damages expert, Mr. Nathaniel Curtis, to calculate her lost earnings resulting from Defendants’ actions. As a result, Concentric and Robert Bales filed a motion to exclude Curtis under Federal Rule of Evidence 702 and Daubert V. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

    Lost Wages Expert Witness

    Nathaniel Curtis is typically engaged to analyze lost earnings related to complex labor discrimination and wrongful termination disputes.

    He holds an MBA, a Master’s Degree in Business Administration, and a Bachelor’s in “Business Ecology.” He serves as the Chief Financial Officer of a private engineering firm with over 150 employees based in Arizona.

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

    Discussion by the Court

    Curtis opined that the present value of Plaintiff’s lost earnings resulting from Defendants’ conduct is approximately $5.4 million as of January 1, 2024, based on documents produced by the parties, and information obtained from research efforts.

    Curtis is Qualified under Rule 702

    The Court found that Curtis is qualified to testify as an economics expert based on his education and professional experience. He holds an MBA in Business Administration and a Bachelor’s degree in Business Ecology, which satisfy the educational requirements under Rule 702. In addition, he has over ten years of experience providing expert analysis in similar cases. Therefore, the Court concluded that Curtis met the threshold qualifications to testify as an expert and will not exclude him at this pretrial stage.

    Whether Curtis’ Testimony Will Assist the Jury

    Defendants next argued that Curtis’ opinions about lost earning capacity are not helpful to the jury because the Plaintiff does not claim that her earning capacity was harmed. In response, Plaintiff contended that Curtis intends to testify only about the amount of her lost future earnings due to her wrongful termination by Concentric.

    There appeared to be a misunderstanding between the parties regarding the scope of Curtis’ intended testimony. In his report, Curtis stated that he was engaged to “calculate [Plaintiff’s] lost earnings resulting from Defendants’ actions as described in [her] complaint.” During his deposition, he was asked about the following statement: “[t]he relevant issue is [Plaintiff’s] earning capacity as a professional, not her earning capacity at Concentric.” When asked why her earning capacity at Concentric was not considered relevant, Curtis explained: “It’s not that it’s not relevant. It’s not the goal. The goal isn’t to say what she would have earned at Concentric. It’s to understand what her earnings capacity was.”

    The Court found that Curtis’ testimony will assist the jury because he will provide “knowledge beyond the trier of fact’s common knowledge.” The Defendants’ objections go to the weight of Curtis’ testimony and the evidence supporting it—not to its admissibility.

    Sufficient Facts and Data

    Defendant next argued that Curtis’ testimony relied on insufficient facts and data in violation of Rule 702(b). However, the Court found that Curtis’ opinions are drawn from sufficient factual grounds. Curtis stated in his report that, in developing his opinions, he reviewed documents produced by the parties, and information obtained from research efforts related to this report.

    Curtis has also included an exhibit detailing the documents he relied upon which includes check stubs and an offer letter. Plaintiff also noted in her response that Curtis relied upon records of Plaintiff’s historical compensation and commissions and data regarding compensation conditions in the specific industry at the relevant time. She also argued that Defendant’s expert also relied upon these same documents to reach his opinion.

    Defendants argued in their Reply that Curtis “only reviewed two commission payments to predict Plaintiff’s commissions for the remainder of her career” and that this limited review of two commission payments “is insufficient to predict almost 25 years of commissions.”

    Defendant essentially argued that Plaintiff’s commission payments and wage data were reviewed in a vacuum. Yet, according to Curtis, they were reviewed in conjunction with other documents, evidence and statistics from the Bureau of Labor. Cutis then utilized these facts, data and assumptions to reach a conclusion as to Plaintiff’s lost wages. These facts and data, reviewed in the aggregate, establish sufficient factual grounds from which Curtis could form an opinion and draw conclusions from.

    Reliable Principals and Methods

    Defendant argued that Curtis’ opinions regarding Plaintiff’s future earning capacity and expected growth rate in the “Actual Scenario” employed an unreliable methodology.

    Curtis employed a But-For Scenario and an Actual Scenario to calculate Plaintiff’s damages. He states that “the Actual Scenario differs from the But-For Scenario by assuming that [Plaintiff] will experience abnormal wage increases and commission increases in her new position because workers commonly experience several years of above average earnings increases when they pursue long-term and stable employment.”

    Curtis also stated that that “with respect to the Plaintiff’s lost commissions, I reviewed Plaintiff’s pay stubs, which revealed commissions in September 2021 of $16,308 and in October 2021 of $18,011. Using historical earnings, and specifically recent historical earnings, is a generally accepted and testable data source used by experts to calculate lost earnings in wrongful termination disputes.”

    Defendants objected to Curtis’ calculations regarding earning capacity growth and commissions. They also argued that he failed to explain the basis for his assumption of a 10% annual commission. However, an expert “may, in appropriate circumstances, rely on assumptions when formulating opinions.”

    While Defendants argued that Curtis did not take Plaintiff’s specific job into consideration in determining what rate was appropriate, the Court held that Curtis’ opinions are indeed the product of reliable principles and methods such that he can testify under Rule 702. It should be attacked by cross examination at trial—not exclusion beforehand.

    Held

    The Court denied the Defendants’ Daubert motion to exclude Plaintiff Jenessa Dubey’s expert, Nathaniel Curtis, MBA.

    Key Takeaway:

    Curtis has applied reliable principles to form his hypothesis. It is not for the Court to gauge whether that hypothesis is ultimately correct, so long as his opinion stays “within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology.”

    Case Details:

    Case Caption: Dubey V. Concentric Healthcare Solutions LLC Et Al
    Docket Number: 2:22cv2044
    Court Name: United States District Court, Arizona
    Order Date: June 12, 2025
  • Nursing Expert’s Testimony Would Not Assist the Jury in Determining Whether the Plaintiff has a Disability

    Nursing Expert’s Testimony Would Not Assist the Jury in Determining Whether the Plaintiff has a Disability

    Bernice McLaurin has sued her former employer, the Veterans Affairs Medical Center (VAMC) in Jackson, Mississippi, claiming racial discrimination and discrimination based on an unspecified medical disability. McLaurin, an African-American, was hired as a clinical pharmacist at the G.V. Sonny Montgomery Medical Center in Jackson (VAMC) on May 12, 2019, with a one-year probationary period. Her employment was terminated on May 8, 2020, with the stated reason being her absence without leave (AWOL) and failure to return to work after being directed.

    In substantiation of her claimed disability, the Plaintiff has furnished an expert report prepared by Ticonna Purdle, a nurse practitioner. Within this report, Purdle opines that the Plaintiff’s medical documentation indicates chronic airway symptoms post work-related exposure to Peridox. Purdle further notes the Plaintiff’s diagnosis of bronchiolitis and the pulmonologist’s findings of allergic rhinitis, postnasal drip, shortness of breath, and respiratory symptoms suggestive of asthma. Additionally, Purdle states that the Plaintiff experiences chronic cough and respiratory symptoms, and she attributes these conditions to exposure to Peridox.

    The Defendant, however, disputes Purdle’s conclusions, maintaining that she lacked the ability to substantiate the Plaintiff’s disability or the connection between Peridox exposure and her respiratory issues. As a result, the Defendant has filed a motion to exclude Purdle’s opinion, asserting its failure to satisfy Daubert‘s relevance standard.

    Nursing Expert Witness

    Ticonna Purdle, the founder of Nursing Speaks Incorporated and an advanced practice nurse, is also an American Heart Association (AHA) CPR instructor, a nurse practitioner, and a member of the American Public Health Association and Sigma Theta Tau International, the honor society of nursing. With over 20 years of experience in long-term, acute, and outpatient healthcare settings, she brings a wealth of expertise to her field.

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

    Discussion by the Court

    The Defendant presented excerpts from Ticonna Purdle’s deposition. In her testimony, Purdle acknowledged that while the Plaintiff reported symptoms suggestive of a chronic inflammatory airway condition, and her medical records “indicate a possible chronic respiratory inflammatory condition,” she was unaware of any formal respiratory diagnosis for the Plaintiff. Purdle also agreed that a January 26, 2020 CT scan initially suggested “findings supportive of respiratory bronchiolitis,” an inflammation of the small airways in the lungs, but the Plaintiff’s pulmonologist subsequently reported she did “not appreciate evidence of respiratory bronchiolitis” from the February CT scan, which was otherwise “unremarkable except for a single tiny granuloma right mid lung.”

    Furthermore, Purdle stated that despite various potential diagnoses noted in the medical records, she “[could not] infer a condition based off of the record review and the current information I have today” and could not confirm the Plaintiff’s suffering from a respiratory condition. Considering these candid admissions by Purdle, it is clear her testimony would not assist the jury in determining whether the Plaintiff has a disability. Consequently, the Court granted the motion to exclude her report and opinion. The Plaintiff’s complaint in this cause was dismissed with prejudice by the Court.

    Held

    The Court granted the Defendant’s motion exclude the testimony of Plaintiff’s expert, Ticonna Purdle.

    Key Takeaway:

    Bernice McLaurin’s lawsuit against the Veterans Affairs Medical Center (VAMC) for racial discrimination and disability discrimination was ultimately dismissed. The Court granted the VAMC’s motion to exclude the expert testimony of McLaurin’s nursing expert, Ticonna Purdle, because Purdle’s own deposition testimony revealed that the Plaintiff has not been diagnosed with any respiratory condition, and the medical records do not otherwise tend to demonstrate the existence of a disability based on Plaintiff’s alleged respiratory symptoms. 

    Case Details:

    Case Caption: McLaurin V. McDonough
    Docket Number: 3:23cv281
    Court: United States District Court, Mississippi Southern
    Order Date: February 13, 2025
  • Business Valuation Expert Witness’ Financial Projections Admitted

    Business Valuation Expert Witness’ Financial Projections Admitted

    Plaintiff American Northwest Distributors Inc. (“ANW”) was the Washington distributor of Four Roses bourbon, produced by Defendant Four Roses Distillery LLC (“Four Roses”), for about five years from 2015-2020. In 2020, after a pattern of late payments from ANW, Four Roses terminated the distribution agreement and switched to a competitor, Young’s Market Company, LLC (“Young’s Market”). ANW went to arbitration with Young’s Market, as provided for in Washington’s statutes regulating liquor distribution, and the arbitrator awarded ANW what she found to be the fair market value of ANW’s lost distribution rights.

    After the arbitration, ANW sued Four Roses, claiming Four Roses had breached the parties’ contract and interfered with ANW’s other business relationships, causing ANW damages beyond what it received from Young’s Market in arbitration. Four Roses counterclaimed for invoices ANW had never paid.

    ANW has retained Neil Beaton to analyze and determine the damages it has incurred as the result of Four Roses’ wrongful termination of ANW’s distribution agreement.

    Four Roses filed a motion to exclude ANW’s expert witness, Neil J. Beaton. Four Roses first argued that Beaton’s testimony regarding ANW’s lost profits is inadmissible because ANW cannot recover those profits as a matter of law, so that any testimony on this issue is “not helpful to the trier of fact.” The Court held that ANW may seek such recovery under common law contract claims and Four Roses’ argument on this point is unpersuasive. Four Roses also contended that Beaton’s testimony is a “rehash” of the damages he attested to in arbitration. While there may be overlap in Beaton’s financial figures, there are genuine disputes between the parties as to how that impacts the damages analysis in this case.

    Business Valuation Expert Witness

    Neil Beaton is a Managing Director with Alvarez & Marsal Valuation Services in Seattle. He specializes in the valuation of public and privately held businesses and intangible assets for purposes of litigation support (lost profits claims, marriage dissolutions and others), acquisitions, sales, buy-sell agreements, ESOPs, incentive stock options and estate planning and taxation. He also performs economic analysis for personal injury claims, wrongful termination and wrongful death actions.

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

    Discussion by the Court

    Four Roses also questioned the reliability of Beaton’s financial projections, asserting that they are overly optimistic and lack “reasonable certainty.” The Court held that while Beaton’s projections may be “optimistic,” that does not make his testimony unreliable if he lays an acceptable foundation for those calculations.

    Beaton has disclosed his assumptions and methodology for projecting lost profits, and Four Roses has not shown that those methods lack a reliable basis in the knowledge and experience of Beaton’s discipline. Four Roses can challenge Beaton’s approach at trial, but his choice of assumptions does not render his testimony inadmissible—only more or less persuasive when evaluated as a whole.

    The judge at arbitration took a similar approach, recognizing that Beaton held undeniable expertise in business valuation—but the assumptions upon which he applied that expertise did not lead to a persuasive conclusion. 

    As the judge at arbitration recognized, business valuation “is as much an art as a science.” Four Roses did not challenge Beaton’s methods—it questioned the growth assumptions and discretionary factors that were necessary to financial projections and challenged the figures he arrived at.

    Beaton’s convoyed sales estimate relied on the assumption that Four Roses’ conduct interfered with ANW’s sales relationships. Beaton’s testimony regarding “convoyed sales,” however, is no longer relevant, even if it could be considered reliable (an issue the Court need not decide). Beaton opines that ANW’s sales of Four Roses products motivated its customers to buy more products overall—such that Four Roses’ termination negatively impacted these purchases. In light of the Court’s determination, however, that Four Roses did not tortiously interfere with ANW’s other business relationships, Beaton’s “convoyed sales” testimony is no longer relevant and will be excluded. 

    Held

    In conclusion, the Court denied Four Roses’ motion to strike the testimony of Neil J. Beaton as to testimony regarding lost profits and other damages and granted it as to testimony regarding ANW’s loss of “convoyed sales.”

    Key Takeaway:

    The Court has “broad latitude” in determining an expert’s reliability and finds no reason to question the reliability or relevance of Beaton’s testimony on lost profits under Rule 702. Moreover, Beaton has disclosed his assumptions and methodology for projecting lost profits, and Four Roses has not shown that those methods lack a reliable basis in the knowledge and experience of Beaton’s discipline.

    Case Details:

    Case Caption: American Northwest Distributors Inc V. Four Roses Distillery Llc
    Docket Number: 2:22cv1265
    Court: United States District Court for the Western District of Washington
    Order Date: August 20, 2024
  • Psychology Expert Witness’ Depression Diagnosis Upheld

    Psychology Expert Witness’ Depression Diagnosis Upheld

    Plaintiff Duane Anthony Beyenhof alleged that his former employer Defendant Schwan’s Consumer Brands, Inc. (“Schwan’s”) wrongfully terminated him in retaliation for reporting illegal activity at work and because of his age.

    Schwan’s claimed he was terminated for not wearing a seatbelt in violation of Defendant Schwan’s Consumer Brands, Inc.’s (“Schwan’s” or “Defendant”) zero tolerance Seat Belt Policy.

    Defendant Schwan’s Consumer Brands, Inc. requested the Court to issue an order in limine excluding the testimony of and any reference to the expert reports of Plaintiff Duane Beyenhof’s designated experts, Heather H. Xitco and Anthony E. Reading as they did not meet the admissibility requirement of the Federal Rules of Evidence (“FRE”) 702 and would have presented evidence that was needlessly cumulative and unduly prejudicial to Defendant.

    Psychology Expert Witness

    Anthony E. Reading is a licensed psychologist in the State of California. He is a Clinical Professor in the Department of Psychiatry at the David Geffen School of Medicine at UCLA. He is a member of the American Psychological Association, the California State Psychological Association, the British Psychological Society.

    Click here to purchase Anthony Reading’s Expert Challenge Study and learn about the 86 cases where his testimony has been subjected to a challenge.

    Finance Expert Witness

    Heather H. Xitco is a Principal with Dolan Xitco that provides litigation support, financial analysis, and expert testimony. She holds a Bachelor’s degree in Economics from the University of Southern California and a Master’s in Business Administration, with an emphasis in Finance, from the University of San Diego. She is a practicing Certified Public Accountant in California with a Certification in Financial Forensics (CFF).

    Heather Xitco’s testimony has been challenged in more than 50 cases in the past. You can click here to order an Expert Challenge Study on Ms. Xitco and learn all about the grounds of challenge, outcomes, retaining and opposing attorneys and more.

    Discussion by the Court

    Under Federal Rule of Evidence 703, an expert witness can base opinions upon inadmissible hearsay evidence if that evidence is reasonably relied upon by experts in the same field on the same subject. Here, Defendant was concerned that both Xitco and Reading relied on Plaintiff’s statements to form their opinions. 

    Court Should Exclude the Testimonies Of The Plaintiff’s Experts because They Do Not Offer Any Testimony that is Sufficiently beyond Common Experience or Knowledge That Would Assist the Trier of Fact

    The Plaintiffs retained Xitco to “present evidence related to Plaintiff’s economic damages, including past, present, and future lost wages and benefits, and Defendant’s finances.”

    The Defendant argued that in determining Plaintiff’s lost earnings and benefits, Xitco merely relied on his previous wages, bonus, and benefits, and then factored in an estimated 2% growth based on his past wage increases. Accordingly, the calculations in Xitco’s report were simple mathematical calculations that a non-expert witness can just as easily explain and a juror can calculate.

    The Defendant alleged that Readings’ Rule 26 Report was essentially an overview of his initial—and only—consultation with Plaintiff. He based his conclusion of Plaintiff experiencing a Major Depressive Disorder following his termination on Plaintiff’s self-reported feelings. Reading failed to exhibit the level of care required in his field due to his singular visit with Plaintiff.

    After reviewing the reports, the Court found that the evidence relied upon is of the kind reasonably relied upon by experts in the same fields on the same subjects.

    The Court held that Defendant’s concerns about the reliability of Reading’s methods concerned the weight of the testimony, not the admissibility. It also found that Xitco’s expert testimony assisted the jury under Rule 702 by aiding the understanding of damages.

    The Court should exclude Reading Because Plaintiff Failed to Comply to FRCP Rule 26(a)(2)(A-D)

    Defendant filed a motion to exclude specifically Reading’s expert testimony and report because Plaintiff failed to comply with Federal Rule of Civil Procedure 26(a)(2)(A-D). Concerning failure to comply with Federal Rule of Civil Procedure 26(a)(2)(A-D), federal courts have the discretion to exclude expert witness testimony due to an untimely or inadequate expert disclosure.

    The Court held that exclusion of the entire testimony would be unjustified, considering Plaintiff provided Reading’s Report on April 20, 2023, a year before the set trial date on March 5, 2024. Defendant had ample time to review the supplemental testimony. 

    Held

    The Court denied the motions to exclude Finance Expert Witness Heather Xitco and Psychology Expert Witness Anthony Reading.

    The Court dismissed the case on March 04, 2023.

    Key Takeaways:

    1. Admissibility under Federal Rule of Evidence 702: The Court resorts to exclusion only when the expert’s opinions lack fundamental support. The Court held that Defendant’s concerns about the reliability of Reading’s methods concerned the weight of the testimony, not the admissibility. It also found that Xitco’s expert testimony assisted the jury under Rule 702 by aiding the understanding of damages.
    2. Compliance with FRCP Rule 26(a)(2)(A-D):  Federal courts have the discretion to exclude expert witness testimony due to an untimely or inadequate expert disclosure. But excluding Reading’s Report was unjustified considering any errors were clearly harmless since Defendants had ample time to remedy any concerns.

    Case Details:

    Case Caption: Beyenhof V. Schwans Consumer Brands, Inc. Et Al
    Docket Number: 2:22cv192
    Court: United States District Court, California Central
    Citation: 2024 U.S. Dist. LEXIS 48635
    Order Date: February 14, 2024