Roy Edward Ates, Jr., is a federal prisoner. He alleged that prison officials’ negligence caused him to become infected with COVID and that prison personnel were negligent in providing him medical treatment thereafter.
Defendant retained Dr. Alysse Wurcel as an expert witness. She has assisted Massachusetts sheriffs in their response to COVID beginning in March 2020.
Wurcel opined that the BOP’s medical treatment of Ates from December 2020 forward was “evidence-based, guideline-concordant medical care”.
In reaching this conclusion, she further opined that she “would not classify Ates as having ‘severe debilitating lung damage.’” Considering Wurcel’s opinions, no reasonable jury could find an “intentional failure to perform a duty in reckless disregard of the consequences” with respect to the BOP’s treatment of Ates’ medical conditions from December 2020 forward.
Ates argued that Wurcel’s expert opinion on whether Ates has lung dysfunction is not reliable and should not be considered because Wurcel is not qualified to offer such opinion.
Infectious Disease Expert Witness
Dr. Alysse Gail Wurcel is a physician licensed in Massachusetts to practice as an internal medicine and infectious disease specialist. She has worked in Massachusetts jails as an infectious disease specialist since 2013. She has published over 100 articles in peer-reviewed publications, including articles on COVID.
Through her training and experience, Wurcel is able to recognize symptoms of severe lung damage that would require a referral to a specialist, like a pulmonologist.
She testified, “I know when someone has severe lung damage. I mean, in terms of their oxygenation saturation, in terms of lots of other things, an internal medicine doctor can know when someone has severe lung damage.”
Explaining the basis for such knowledge, Wurcel testified:
I guess, like, this is the existential infectious diseases debate that you get into, in that we are doctors of everything. And if there’s an infection of the lungs, it’s called a pneumonia, and COVID causes, in some people, an infection of the lungs. And so, like, I’m not a lung doctor, but I am a lung doctor when an infection is in it. So any infection hits the lungs, then I’m a lung doctor.
She further explained that “you don’t send every person that believes they have something to a specialist. The internal medicine doctor has a certain level of understanding to triage.”
Wurcel observed multiple exams when Ates’ lungs were clear and his pulse oximetry readings were good. Wurcel further opined that from these and other objective symptoms documented in the medical records, “any internal medicine doctor would look at this case and say this man does not have severe lung damage.”
Analysis
While Wurcel is not a pulmonologist and did not hold herself out to be a specialist on lung dysfunction, her training and experience provided sufficient foundation for her to opine that, based on her review of Ates’ deposition transcript, discovery responses, and medical records, Ates did not have severe lung damage. This opinion supported her conclusion that the BOP provided Ates “evidence-based, guideline concordant medical care.”
Ates contended that Wurcel did not know about or did not take into consideration his claim that his medical records often failed to reflect his complaints of breathing problems. Even accepting Ates’ claim at face value, as the Court must on summary judgment, it did not warrant rejection of Wurcel’s opinions.
Held
The Court admitted the testimony of Defendant’s expert Dr. Alysse Wurcel because she is an experienced physician licensed to practice internal medicine and treat infectious diseases.
Key Takeaway
As Wurcel aptly explained, internal medicine doctors like her regularly make the initial assessment as to whether a patient has symptom that warrant referral to a specialist, such as a pulmonologist. Wurcel unequivocally opined both in her written report and during her deposition that, based on information in Ates’ medical records, she saw no indication that he did in fact have lung damage, or any basis for referring him to an outside specialist for further evaluation.
The Federal Trade Commission contended that Amazon tricked, coerced, and manipulated consumers into subscribing to Amazon Prime. According to the FTC, this was accomplished by failing to disclose the material terms of the subscription clearly and conspicuously and by failing to obtain the consumers’ informed consent before enrolling them. The FTC also alleged that Amazon did not provide simple mechanisms for subscribers to cancel their Prime memberships. The FTC sued Amazon.com, Inc. and three of the company’s executives, Neil Lindsay, Russell Grandinetti, and Jamil Ghani.
Defendants’ expert Craig Rosenberg‘s opening report addresses the FTC’s allegation that Amazon used deceptive practices known as “dark patterns” in user interface design to drive unintended Prime membership.
Rosenberg’s opening report makes several findings. He stated that there is ambiguity in the definition of the term “dark patterns,” it is difficult to measure clarity in user experience design and subjective evaluations are insufficient to measure this clarity, Amazon’s initiatives to enhance clarity demonstrate a commitment to data-driven user experience refinement, Amazon uses empirical evidence to inform design decisions, there are alternative (non-user experience design) explanations for declines in Prime membership subscriptions following clarity-centered changes, and the absence of objective standards for clarity risks penalizing legitimate business practices.
The FTC filed a motion to exclude Rosenberg’s testimony on three grounds. First, it said that his methods are unexplained and unreliable. Second, it said that he is not qualified to testify on the subject of his opinions. And third, it said that his testimony is irrelevant and confusing.
Human Factors Expert Witness
Craig S. Rosenberg, Ph.D., is a consultant who provides advanced engineering services for a wide array of companies. He has a Master of Science and Ph.D. from the University of Washington in Human Factors, a multidisciplinary field that studies how people interact with machines, technology, and their environment.
Rosenberg’s opening report, rebuttal report, and deposition testimony all indicate the primary source of his expert opinions is his experience, training, and education as a human factors engineer. However, Rosenberg’s inability to articulate how his education, training, and experience have led him to his conclusions shows that these conclusions are not the product of a reliable method; therefore, the Court held that his testimony is inadmissible.
Amazon said Rosenberg’s “references to the ‘totality’ of his experiences are not evasions, but acknowledgments that his expert conclusions stem from integrated professional judgment based on decades of interface design.” Even so, Rosenberg must explain how his decades of experience inform his expert conclusions. By his own admission, he cannot do so.
Held
The Court granted Plaintiff FTC’s Rule 702 motion to exclude the testimony of Defendants’ expert Craig Rosenberg.
Key Takeaway:
Liberally construing Rule 702 in favor of admissibility, Rosenberg’s opinion does not show how his experience informs his conclusions. He draws no methodological nexus between his conclusions and his experience, education, and training, other than to say his conclusions are based on his experience, education, and training. This circular reasoning is insufficiently reliable.
Please refer to the blog previously published about this case:
This case involves a dispute over the alleged misuse of funds from two New Mexico payday lending businesses, Cashco, Inc. and Budget Payday Loans, L.P. The Light Defendants (John Ernest Light, Tina S. Light, and Investors Services, Inc.) were hired to manage the financial operations of these businesses, including record-keeping and transaction processing.
They were given access to the operating accounts in exchange for a monthly fee. The owners of the businesses (Randall C. Roche, Ronald Tsuchiyama, Michael Harada, and William Montelongo), through their entity HiTex, LLC, claim that the Light Defendants abused this access, diverting approximately $360,000 for their own use, rather than distributing it to the rightful owners. HiTex, LLC, has filed a lawsuit asserting claims of breach of contract, breach of fiduciary duty, conversion, fraud, unjust enrichment, and negligence, seeking $320,000 in damages.
Plaintiff sought to exclude the opinions and testimony of the Light Defendants’ retained expert, Ted Blodgett. The Light Defendants, in turn, sought to exclude the opinions and testimony of Plaintiff’s retained expert, David Bloom.
Accounting Expert Witnesses
Ted Blodgett, managing partner of Gray, Blodgett & Company, PLLC, possesses 30 years of public accounting expertise. He specializes in tax planning, business valuations for estate and gift tax, and litigation support. A seasoned expert witness, he regularly testifies in Oklahoma courts on complex accounting and tax matters, including marital dissolution.
David Bloom has over 40 years of public accounting experience as a private business executive, business consultant, and forensic accountant, has served as Chief Financial Officer, interim Chief Financial Officer, and consultant to private businesses of various sizes on matters of taxation, accounting policy, and audit. He is an active Certified Public Accountant in the State of Oklahoma, license number 15384 and a graduate from Southern Nazarene University.
Blodgett’s expertise is unchallenged by the Plaintiff, and the Court confirmed that Blodgett’s accounting and valuation background qualified him to provide expert opinions.
Blodgett’s Opinions are Sufficiently Reliable
Plaintiff argued that Blodgett’s analysis is flawed, claiming he failed to adequately consider the case’s documents and evidence. Specifically, they criticized his hypothetical, stating that “Plaintiff cannot have suffered damages if a distribution was recorded as a distribution payable and then later distributed,” rendering his opinions “inconsistent with the evidence produced.”
The Light Defendants countered that the Plaintiff’s interpretation of Blodgett’s hypothetical “are contrary to Blodgett’s own explanation of his hypothetical.” They further asserted that Blodgett’s limited scope of work justified reviewing only a “narrow set of documents,” and therefore, any omissions affect “the weight of Blodgett’s testimony, not its admissibility.”
The Court concurred with the Light Defendants. It found that the Plaintiff’s concerns primarily address the weight of Blodgett’s testimony, not its admissibility. The fact that Blodgett did not review all evidence deemed relevant by the Plaintiff does not automatically disqualify his testimony. The Plaintiff retained the right to challenge Blodgett’s analysis during cross-examination.
Given the limited scope of Blodgett’s testimony, the Court concluded that his conclusions are reasonably based and will aid the fact-finder. The Plaintiff’s objections pertain to the “weight of Blodgett’s testimony” and are more appropriately explored during cross-examination at trial.
The Bloom Motion
Bloom is qualified to offer his opinions
The Light Defendants contended that although Bloom may possess general accounting qualifications, he lacks the specific expertise in “forensic accounting, financial forensics, and/or fraud investigation” necessary to testify in this case. Consequently, they argue that his opinions should be excluded. Conversely, the Plaintiff asserts that Bloom’s “rigorous education” as a Certified Public Accountant qualifies him. Furthermore, addressing the Light Defendants’ claim of insufficient specialized knowledge, the Plaintiff cites the Association of International Certified Professional Accountants, stating that “all CPAs, including Bloom, possess the specialized knowledge and investigative skills required to perform forensic accounting services.”
Ultimately, after reviewing Bloom’s report and deposition testimony, the Court, even though acknowledging it’s a close decision, finds Bloom qualified to offer opinions on the topics presented. Indeed, while Bloom may not have the specific forensic accounting credentials the Light Defendants deem crucial, this perceived deficiency relates to the weight a jury should assign to his testimony, rather than its admissibility. Therefore, the Court determines that Bloom is qualified by knowledge, skill, experience, training, or education to provide the opinions outlined in his report.
Bloom’s Opinions are Sufficiently Relevant
The Light Defendants further argued that, in their view, Bloom’s opinions lacked relevance, asserting they did not “fit with the issues of this case.” In particular, they claimed Bloom addressed matters beyond the “four (4) transactions giving rise to the distributions allegedly owed to the Owners and the damages the Owners sustained in not receiving those distributions.”
On the other hand, the Plaintiff maintained that Bloom’s challenged opinions are relevant to demonstrate “that Defendants no longer have access to the funds intended to be used for distributions and, therefore, such distributions cannot be paid to Plaintiff.” Furthermore, the Plaintiff asserted that Bloom’s opinions bolster their theory that the Defendants commingled funds, effectively rendering them untraceable.
Ultimately, after careful consideration, and for reasons largely consistent with those discussed later, the Court deemed Bloom’s opinions sufficiently relevant. To be sure, the Light Defendants retained the right to scrutinize the perceived weaknesses in Bloom’s analysis during cross-examination, particularly regarding the four transactions outlined in the Complaint, or any other perceived deficiencies. Nevertheless, the Court is convinced that Bloom’s testimony is “sufficiently tied to the facts of the case [such] that it will aid the jury.”
Bloom’s opinions are sufficiently reliable
The Light Defendants then argued that Bloom’s opinions lacked reliability, claiming they did not “rely upon any explained methodology.” Specifically, they criticized Bloom for failing to “connect the dots between the materials he reviewed and his own education or experience to then detail the supporting bases for his opinions.”
Conversely, the Plaintiff asserted that “any trained CPA with Bloom’s experience and education would be able to conduct the same analysis Bloom had done with the same documents.” Moreover, the Plaintiff contended that, because Bloom had based his opinions on both his experience and the case’s documents, rather than solely one or the other, his opinions were sufficiently reliable.
Ultimately, after careful consideration, the Court determined that Bloom’s opinions were sufficiently reliable, and that the Light Defendants’ arguments pertained to the weight of those opinions, not their admissibility. In essence, the Court disagreed with the assertion that Bloom’s report “was unreliable because [he] either did not employ or failed to disclose any particular methodology.”
Held
The Court denied the Plaintiff’s Daubert motion to strike the testimony of Defendants’ expert witness Ted Blodgett.
The Court denied the Defendants John Ernest Light, Tina S. Light, and Investors Services, Inc.’s motion to exclude the testimony of the Plaintiff’s expert witness David Bloom.
Key Takeaway:
Despite challenges regarding the scope of reviewed materials, specialized expertise, relevance, and methodology, the Court found both experts, Blodgett and Bloom, qualified to offer their opinions. The Court emphasized that critiques concerning the experts’ analysis, including perceived omissions or methodological shortcomings, primarily affect the weight of their testimony, not its admissibility. Consequently, the Court deemed cross-examination the appropriate venue for addressing these concerns, ensuring the jury could properly evaluate the experts’ credibility and the strength of their conclusions.
Plaintiff, Luvelle James alleged that during a winter storm on January 6, 2022, his car was struck on Interstate 55 by an Aramark truck being driven by Steven Moore. As a result of this crash, Plaintiff alleged injuries to his back, neck, and head. He sought damages for past and future medical bills, past and future mental and physical pain and suffering, past and future lost wages, the loss of earning capacity, and loss of enjoyment of life.
James alleged claims of negligence (Count I), negligence per se (Count II) and negligent hiring, training and supervision against Defendants Steven Moore and Aramark Uniform & Career Apparel, LLC. He also sought punitive damages against both Defendants.
Plaintiff’s expert Michael Connelly testified that Defendant Moore failed to meet industry standards of care for a commercial driver in his operation of the Aramark truck on the day of the accident. Second, that Defendant Aramark failed to meet industry standards of care for a motor carrier with respect to Aramark’s training, supervision, and monitoring practices over its employee, Steven Moore. Defendants filed a motion to exclude Connelly’s testimony.
Transportation Safety Expert Witness
Michael Connelly is the president of Transhield, Inc. He and the Company specialize in providing third party safety and compliance solutions to transportation, distribution, and logistics companies nationwide.
A graduate of Clemson University, Connelly has been in the transportation industry for over 20 years. A licensed CDL driver, he has served many operational roles in both the Truckload and LTL industry sectors. Upon entering the field of transportation safety, he quickly rose to the top of an industry leading fleet in Western Maryland.
Defendants did not challenge Connelly’s qualifications. Instead, Defendants argued that Connelly’s opinions were not based on sufficient facts to be reliable and helpful to the jury.
Failure to Consider Deposition Testimony
First, Defendants contended that Connelly’s opinions were unreliable because Connelly did not consider or even review the testimony of Plaintiff James, and that Connelly therefore inaccurately stated that the road conditions were disputed at the time of the accident. Defendants maintained that James admitted the road was not snow-covered until he stopped on the interstate immediately before the accident. Similarly, Defendants pointed out, Defendant Moore testified there was no snow or ice on the road until just before the accident.
Both parties therefore appeared to agree that there was no snow on the roadway until just before the accident; however, what they mean by those statements could be different. Plaintiff James’s actual testimony is that “when I got to the major incident and stopped the car, the road was snow covered because there wasn’t – wasn’t nothing moving.”
Defendants also asserted that Connelly improperly relied on a Missouri Highway Patrol officer’s testimony regarding the severity of the road conditions. Defendants argued that the officer could not have known the road conditions at the time of the accident because he did not arrive at the scene until sometime later.
Because Connelly based his opinions on this allegedly incomplete or misleading information, Defendants said that his testimony should be excluded. However, the Court held that Connelly’s opinion was not fundamentally unsupported and that the Defendants’ concerns about any “cherry-picked” facts may be addressed through cross-examination.
Other Accidents on the Interstate
Next, Connelly’s opinion stated that Defendant Moore would have passed at least four accidents prior to the collision with Plaintiff.
However, Connelly admitted he was mistaken, and the four accidents to which he referred actually happened after the parties’ collision.
The Court held that Connelly may therefore not testify as to the existence of the four accidents.
Opinion Regarding when to Slow Vehicle
Next, Defendants addressed Connelly’s opinion that Defendant Moore waited too long to slow his vehicle. Defendants complained that Connelly improperly “assumed that Moore encountered hazardous weather conditions well before” the time and location of the accident. Defendants quibble again with the testimony from the Plaintiff, Defendant, and the highway patrol officer. Again, as with the question of when the roads became snow-covered, the Court held that the factual basis for Connelly’s opinion was subject to cross-examination.
Citation for driving too fast
Defendant objected to Connelly’s report stating that Defendant Moore was ‘cited’ for driving too fast. Connelly now admits that Defendant Moore received no citation or ‘ticket’ for driving too fast for conditions. The Court held that Connelly may not testify that such a citation exists.
Held
The Court granted in part and denied in part the Defendants’ motion to exclude the testimony of Michael Connelly.
Key Takeaway:
Because Connelly’s opinion is not fundamentally unsupported, Defendants’ concerns about any “cherry-picked” facts may be addressed through cross-examination. After all, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.
Plaintiff Brandeon Alexander (“Alexander”), a deckhand employed by Defendant Intracoastal Tug and Barge Company, LLC (“Intracoastal”), sustained serious injuries while working aboard the M/V California Chrome. As Alexander was reaching for a line on a piling, Alexander’s arm was crushed between the barge and the piling. Captain Paul Smith (“Captain Smith”) was operating the barge, and Frederick Deliphose (“Deliphose”) was the other deckhand at the time of the accident.
After the incident, Alexander filed a lawsuit alleging claims for Jones Act negligence, unseaworthiness, and maintenance and cure. To support his claims, he retained Gary Hensley as a marine safety expert in order to review the actions and omissions of the parties in this litigation. Hensley prepared a 16-page report (“the report”) which consisted of three part: an introduction, a fact section, and a section outlining his opinions. The report also included a list of the materials which Hensley reviewed to produce the report.
In response, Intracoastal, along with Navigators Insurance Company, Ascot Insurance Company, and Mitsui Sumitomo Insurance USA, Inc. (collectively, “Defendants”) sought to exclude 15 of Hensley’s opinions. They asserted three grounds for exclusion:
(i) that several opinions constituted improper legal conclusions
(ii) that several others opinions were speculative and unsubstantial
(iii) that the remaining opinions either invaded the province of or did not assist the factfinder
Maritime Safety Expert Witness
Gary Hensley is an experienced Towboat Pilot/Relief Captain and Captain (Master) of inland towing vessels with over 30 years of hands-on experience with various towing companies. Throughout his career, Hensley has worked with both single and multi-engine vessels, moving barges, supervising crews, and training new crew members, including deckhands, tankermen, Steersmen, and Pilots. With extensive experience working and operating under every type of conditions, both natural and man-made, he has expertly managed various sized barges and tows with different configurations of the tow.
Defendants asserted that opinions 1 through 3 should be excluded as impermissible legal conclusions. Those opinions were as follows:
1. Based on my 30 plus years of training, knowledge, and experience in the maritime industry, it is my opinion that Intracoastal Tug and Barge, LLC. did not provide Brandeon Alexander with a safe place to work and that the M/V California Chrome was not adequately crewed for its intended purpose.
2. Given the facts set forth herein, it is my opinion that the vessel was unseaworthy as it lacked an adequate, and trained crew.
3. Alexander testified that Intracoastal Tug and Barge had taken the other captain, John Joseph, off the M/V California Chrome and put him on another vessel. With Captain Smith being the only captain onboard the vessel, it is a great possibility that he violated the 12-hour rule. The master logs show that Captain Smith was the only captain onboard by himself for a few days, and he even testified that he was in bed asleep when they were called to dock.
Analysis of opinions 1 to 3
The Court concluded that opinion 1 was not inadmissible as an improper legal conclusion. The Court had previously found that expert testimony about the safety of the vessel was helpful and did not constitute impermissible legal conclusions. It held that Hensley might testify relative to his opinion that the vessel had an inadequate crew. The Defendants were free to raise an objection at trial if there was an insufficient evidentiary foundation.
Regarding opinion 2, the Court held that Hensley was not permitted to testify that the vessel was unseaworthy, as that opinion most bluntly tells the jury how the verdict form should read. However, Hensley was allowed to opine on the lack of an adequate and trained crew.
Defendants’ challenge to the admissibility of Opinion 3 was on the ground that it constituted a legal conclusion rather than its applicability. The Court cannot conclude that opinion 3 would not “bring to the jury more than the lawyers can offer in argument,” and that it is therefore an impermissible legal conclusion. Further, it should be noted that Hensley’s opinion as to the 12-hour rule did not tell the jury how the verdict form should read.
b. Opinion 4 through 8
Defendants asserted that opinions 4 through 8 were inadmissible because they were speculative and unsubstantiated. Those opinions were as follows:
Opinions 4 to 6
4. Captain Smith testified that 19 days after Alexander’s injury, as the M/V California Chrome was turning into Galveston, Texas, one of the rudders just fell off the vessel. With the rudder missing, you have very limited control of a vessel. Since the rudder fell off very shortly after Alexander’s accident, there is a great possibility that there were already problems with the rudder, such as a cracked rudder stock, bent rudder, so many things could have caused the rudder to fall off, but if it were bent prior to falling off, that could have contributed to Alexander’s injury.
5. Alexander testified that while his arm was between the piling and the barge, he informed Deliphose to call Captain Smith and have him back the tow up, but Deliphose was on the wrong VHF Channel, and Alexander was unable to tell Captain Smith to back up. If Deliphose had been trained in the proper use of the VHF Radio, he would have known that his radio had jumped channels, and he could have corrected it, but he was inexperienced and untrained.
6. Alexander testified that the only training he got while working at Intracoastal was some Safety Orientation videos. He continued by saying that the other companies had regular safety meetings, but they did not have regular safety meetings at Intracoastal Tug and Barge. With Deliphose being an inexperienced deckhand, and had only been on the boat for 2 days before Alexander’s injury, he should have had some type of land-based training, other than safety videos, before he went and caught a vessel.
Opinion 7 and 8
7. It is my opinion that since Captain Smith testified that he was in bed asleep and had to be awoken to go to the dock, and had only been to HOTFOOT Ship Dock #3 one time previously, I can tell you from my 35 years’ experience that doing this IS a very stressful situation, for you have no idea what the dock looks like.
Houston Ship Channel is one of the busiest ship channels in America, and with the M/V California Chrome and her tow going to ship dock 3, Captain Smith should have unsecured the vessel from the end he was made fast to and run around to the other end of the tow, and make fast to that end. That way he would not have had to top the tow around and he could have went straight on dock, instead of coming into the dock at an angle, like he did.
8. It is also my opinion that Captain Smith possibly became distracted by all the tows and ships on dock, traffic moving in the Houston Ship Channel, radio chatter, and attempting to listen to Alexander and Deliphose calling out instructions since Captain Smith was 400′ away from them, it was at night, and he had only been to HOTFOOT Ship Dock once previously.
Analysis of opinions 4 to 6
At the outset, the Court noted that the format in which Hensley produced his report—a facts section followed by three pages summarily listing his opinions—made it more difficult to discern the specific facts underlying each opinion. Alexander himself recognized that the report is not “artfully crafted.”
With respect to opinion 4, the Court concluded that it was inadmissible speculation. The report offered no evidence to support the opinion that the rudder was impaired at the time of the accident, except for the fact that it broke weeks after the accident. The jury could determine if this was the case, and counsel could argue the same. The Court also noted that the term “great possibility” was too vague and would confuse the jury as to the governing burden of proof—i.e., a preponderance of evidence.
With respect to opinions 5 and 6, the Court concluded that Alexander, as the proponent of the expert testimony, has not met his burden to show their admissibility because he does not show that the opinions are based on the record. Both opinions refer to the training that Deliphose did not have prior to the accident. However, as Defendants point out, there is no citation in the report to any document or record regarding Deliphose’s training prior to the accident.
Nor is there an indication that Hensley reviewed company records addressing the Deliphose’s training. Hensley’s opinions as to which training Deliphose should have had is necessarily speculative because the embedded assumption as to the training (or lack thereof) that he had is unsubstantiated.
Analysis of Opinion 7 and 8
With respect to opinion 7, the Court found that the opinion was admissible. Defendants asserted that the opinion was unsubstantiated because it misstated that Captain Smith had only visited dock no. 3 once before the accident. The Court determined that the accuracy of this statement was a matter for cross-examination at trial. Yet, Hensley’s opinion on how Captain Smith should have navigated the ship was deemed admissible, as it was based on his specialized knowledge and experience as a ship captain. Further, the opinion provided insight on a topic which the jury could not itself assess with common knowledge and experience.
With respect to opinion 8, the Court found that the opinion was speculative and therefore inadmissible. The opinion cited reasons as to why Captain Smith could have been distracted but cited no evidence to support the claim that he was, in fact, distracted. Such opinion had an insufficient basis in fact. Further, this is not the type of testimony that requires an expert as the jury is fully capable of discerning whether Captain Smith was distracted.
c.Opinions 9 through 15
Defendants asserted that opinions 9 through 15 were inadmissible because they either invaded the province of the jury or did not assist the factfinder. They argued that those opinions relate to issues discernible to the “common sense” of the jury. The opinions stated as follows:
Opinion 9 to 12
9. Reviewing the safety meeting documents submitted to me, there was not a single safety meeting on securing a tow to the dock, throwing a line, proper use of a spike/pike pole, and Alexander was not present for any of the safety meetings that were possibly being conducted.
10. In Intracoastal Tug and Barge, L.L.C.’s “Towing Safety Management System (TSMS)” there is a section on Job Safety Analysis (JSA) that is to be completed and filled out and signed, but on the night of Alexander’s injury, there was not a JSA performed by Captain Smith, even though it is required, and should have been done since Deliphose was inexperienced and new to the maritime industry. However, Captain Smith testified that he held a “toolbox talk” which only lasted a few minutes and did not cover all the topics of a JSA.
11. In the “TSMS”, the spike/pike pole is only mentioned one time, and that was for locking. There were no segments in the “TSMS” as to where it would give you details for securing a line to a piling, grabbing a line hanging off a piling, and the proper use of the spike/pike pole.
12. Intracoastal Tug and Barge, LLC. had the duty to exercise Safety Procedures & Precautions to their employees, but they failed to do so, resulting in Alexander’s injuries.
Opinions 13 to 15
13. Alexander testified in his deposition that he was initially going to catch their 1st line on the piling, and then flatten out on the dock. He went on to say that Captain Smith was on the wrong end of the barges, and was going to have to top the tow around. He continued by saying that when he reached down in front of the barge to retrieve the line that was hanging off the piling, Captain Smith started twisting the barges into the piling, instead of flattening out on the dock, which caused Alexander’s arm to be crushed. Alexander continued by saying that Captain Smith was holding the head of the barges against the piling, and had been doing so for approximately 5 seconds before he reached down to retrieve the line hanging off the piling.
14. If Captain Smith would have flattened the tow out on the dock, which would have brought the head of the barge off and away from the piling. Instead he chose to twist (turn) the head of the tow into the piling, which brought the stern away from the dock, thus catching and crushing Alexander’s arm and hand.
15. Captain Smith had the duty to exercise such reasonable care and skill as a prudent mariner would exercise under similar circumstances and conditions that existed the night of Alexander’s injury.
Analysis of opinions 9 to 15
The Court excluded opinions 9, 10, 11, and 13 to the extent they were factual recitations that did not form the basis of Hensley’s expert opinions. The opinions at issue are merely recitations of the facts and Hensley’s factual conclusions. On their own, they are plainly inadmissible because they do not serve to assist the trier of fact. At trial, the Court held that Hensley might recite these facts only if Alexander showed that these factual recitations and conclusions form the basis of Hensley’s admissible expert opinions.
With respect to opinion 12, the Court partly sustained the objection. The latter part of the opinion merely serves to “supply the jury with no information other than the expert’s view of how its verdict should read.” However, at trial, Hensley was permitted to testify about the relevant safety procedures and precautions, as well as Intracoastal’s compliance or noncompliance therewith.
The Court concluded that opinion 14 was admissible, though the opinion was somewhat cryptic because it included an incomplete sentence. However, the opinion plainly involved expertise in steering the ship, which is not within the common sense or experience of the jury.
With respect to opinion 15, the Court concluded that it was an inadmissible statement of the law, which did not assist the jury and encroached upon the role of the Court.
Held
The Court granted in part and denied in part the Defendants’ motion in limine to exclude the Plaintiff’s expert, Gary Hensley.
Key Takeaway:
The Court excluded certain opinions offered by Hensley because they were legal conclusions. An opinion which “would supply the jury with no information other than the expert’s view of how its verdict should read” is an unhelpful and therefore impermissible legal conclusion. The jury is fully capable of determining whether the vessel was indeed unseaworthy. That being said, Hensley’s specialized knowledge and experience as a ship captain provided valuable insights.
Case Details:
Case Caption:
Brandeon Alexander V. Intracoastal Tug And Barge Company, L.L.C.
Docket Number:
2:23cv2566
Court:
United States District Court for the Eastern District of Louisiana
Plaintiffs Jennifer Le Pape (“Mother”) and Frederic Le Pape (“Father”) (collectively, “Parents”), on behalf of their child, Alexandre Le Pape (“Alex”), and Alex, individually, (collectively, “Plaintiffs”) bring intentional discrimination claims under the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”) against Defendant Lower Merion School District (the “District”), alleging that the District failed to take appropriate steps to ensure that communications with Alex were as effective as communications with others and failed to provide Alex with the appropriate auxiliary aids and services necessary to afford Alex an equal opportunity to participate in and enjoy the benefit of various school services and programming.
Alex is a nonspeaker. He learned to communicate using a letterboard and communication support person (“letterboard”). The District precluded Alex from using a letterboard and communication partner at school.
The District filed objections to the qualifications of Plaintiffs’ anticipated expert witnesses—Dr. William Young, Dr. Mary Stephens, and Vanessa von Hagen—to opine on the efficacy of the letterboard and communication partner as a means of communication for Alex.
Young, Stephens, and Von Hagen did not submit expert reports in this case, as Plaintiffs identified these three witnesses pursuant to Federal Rule of Civil Procedure 26(a)(2)(C) as experts who have not been retained or specially employed to provide expert testimony.
Young has provided both in-patient and out-patient treatment for Alex’s migraines since May 2019. Stephens has been Alex’s primary care doctor since Spring 2019, and she has also interacted with Alex “through Alex’s contribution to the education of doctors concerning neurodiversity” while von Hagen served as the lead clinician on Alex’s home behavior team for six years, beginning in 2012.
Neurology Expert Witness
William Young is board-certified in neurology, psychiatry, and headache medicine, and he is the director of the Jefferson Headache Center of Jefferson University Hospitals.
Mary M. Stephens is board-certified in family medicine and is the director of Jefferson University Hospitals’ Continuing Care Program. She has “extensive experience . . . providing medical services to neurodiverse individuals in medical settings.”
Vanessa von Hagen is a board-certified behavior analyst with more than 13 years of experience implementing, planning, and developing client-specific programming and interventions based on the principles of applied behavior analysis.
Plaintiffs intended to call Young to testify that “Alex’s communication with the letter board and communication partner is effective communication for Alex” or “at a minimum,” to testify “as to why he deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of his medical treatment.”
The District argued that Young is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because he has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further contended that Young’s alternative opinion as to why he determined Alex’s communication through Spelling to Communicate (S2C) to be sufficiently reliable for purposes of his medical treatment, which Plaintiffs proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”
Aside from his interactions with Alex using the letterboard and communication partner, Young does not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, augmentative and alternative communication (“AAC”), facilitated communication, or other facilitator-dependent communication methods used with minimally verbal or non-verbal autistic individuals like Alex. Accordingly, the Court found that Plaintiffs have failed to establish by a preponderance of the evidence that Young has the necessary expertise to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.
Mary Stephens
Plaintiffs intended to call Stephens to testify that “Alex’s communication with the letter board and communication partner is effective communication for Alex and that his communications on it are his own” or “at a minimum,” to testify “as to why she deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of [her] medical treatment.”
As it argues with respect to Young, the District similarly contended that Stephens is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because she has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further argued that Stephens’ alternative opinion as to why she determined Alex’s communication through S2C to be sufficiently reliable for purposes of her medical treatment, which Plaintiffs again proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”
Since Stephens does not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, AAC, or facilitator-dependent communication techniques, the Court found that Plaintiffs have failed to establish by a preponderance of the evidence that Stephens has the necessary expertise to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.
Vanessa von Hagen
Plaintiffs intended to call von Hagen to testify that “Alex’s communication with the letter board is effective, that he communicates his wants, needs, and thoughts with it, and that he could not do so without it” or “at a minimum,” to testify “as to why she deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of her clinical work with him.”
The District argued that, like Young and Stephens, von Hagen is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because she has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further contended that von Hagen’s alternative opinion as to why she determined Alex’s communication through S2C to be sufficiently reliable for purposes of her clinical work, which as with Young and Stephens, Plaintiffs proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”
The Scope of von Hagen’s Clinical Experience is Not Clear
While von Hagen does not appear to have any education or research experience in the fields of speech-language pathology, AAC, or facilitator-dependent communication techniques, the scope of von Hagen’s “clinical experience . . . concerning communication strategies for persons with autism” is not clear from Plaintiffs’ pretrial memorandum or letter brief, von Hagen’s curriculum vitae, or von Hagen’s testimony at the due process hearing.
The Court cannot yet ascertain whether von Hagen’s clinical experience is sufficient to qualify her to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.
Held
The Court held that Young and Stephens will not be permitted to opine on the efficacy of the letterboard and communication partner as a communication method for Alex, which includes any testimony about their determinations that Alex’s communication with a letterboard and communication partner is sufficiently reliable for purposes of their medical treatment of Alex. It reserves ruling on the District’s objection to the qualifications of von Hagen to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.
Key Takeaway:
Defendants argued that Young, Stephens and von Hagen lacked the qualifications to opine on the efficacy of the letterboard and communication partner as a means of communication for Alex.
While the scope of von Hagen’s experience was not clear, both Young and Stephens did not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, augmentative and alternative communication, or facilitator-dependent communication techniques.
Please refer to the blog previously published about this case:
This case arises from the in-custody death of Joseph Morton (“Morton”) at Vista Detention Facility (“VDF”). Morton was arrested for attempted robbery and booked at VDF on May 11, 2020, one day after release from a 5150 hold. Morton committed suicide six days later, on May 17. Plaintiffs allege medical care claims under 42 U.S.C. § 1983 and state law theories claiming that Morton should have been designated as “high risk” for suicide and placed in a safety cell in Inmate Safety Program (ISP) housing.
Defendants County of San Diego, Hosanna Alto, and Janine Sparks (“County Defendants”) claimed that they did not violate Morton’s civil rights. Mental health clinicians (MHC) Hosanna Alto and Janine Sparks were accused of being deliberately indifferent to Morton’s suicide risk.
Jeffrey Metzner is a licensed medical doctor who has been engaged in clinical and forensic psychology since 1978. From 1980 to 1981, Metzner served as Chief of Psychiatry at Colorado State Penitentiary and he served as a consulting psychiatrist to the National Prison Project and the United States Department of Justice for 30 to 40 years, respectively. He has published numerous newsletters, books, book chapters, and peer reviewed journal articles, including on the topics of mental health and psychiatry in prisons. Between 1989 and 2022, he served as an expert in 178 cases.
Kaycea Campbell is an economist with a Ph.D. from Claremont Graduate University, a Master of Arts in Economics from the University of Southern California, and a Bachelor of Science in Economics from the University of the West Indies. Campbell is a tenured economics professor at Pierce College and is also the Department Chair for a multidisciplinary Political Science, Economics, Administration of Justice, and Chicano Studies unit. She has worked as a professional economic researcher for about twenty (20) years during which time she has published articles on economic analyses associated with loss of income and calculated and researched issues such as the recovery of damages for lost profits, wrongful death, personal injury, and intellectual property damages. She has served as an economics expert in thirteen (13) cases since 2014.
1. Mental Health Clinician Standard of Care Opinions
Metzner opined that the care provided to Morton by various mental health and medical professionals at VDF fell below the standard of care. According to County Defendants, although Metzner is a licensed psychiatrist, he has no experience in supervising MHCs in a correctional setting and has not received formal training in the MHC standard of care.
The Court is not persuaded by this argument. Metzner has some thirty (30) years of experience in correctional psychiatry as well as extensive academic and research experience in correctional psychiatry and mental healthcare. Further, it is noteworthy that Metzner has served as a court-appointed expert in numerous cases.
2. Opinions re MHC Alto
County Defendants challenged Metzner’s specific opinions that MHC Alto: (1) did not obtain records regarding Morton’s recent hospitalization; (2) made the improper assumption that because he was released from the 5150 hold, there was no significant safety risk; and (3) that if MHC Alto had obtained the records from Morton’s recent hospitalization, “they would have figured out he was still suicidal.”
a. Records from Prior Hospitalization
Metzner opined that “[i]t was below the standard of correctional mental healthcare to not, at least, attempt to obtain information regarding Morton from the Alvarado Parkway Institute/BHS as part of the gateway assessment process” because “obtaining such information would have demonstrated that Morton was not a reliable historian and that he omitted significant factors leading to his very serious suicide attempt.”
The Court is satisfied that Metzner possesses the necessary qualifications and relevant experience to testify that the standard of care for QMHPs performing an ISP assessment would include requesting prior suicide-related hospitalization records.
b. Improper Assumption
County Defendants challenged Metzner’s opinion that MHC Alto’s assessment fell below the standard of care because she improperly assumed that following his 5150 hold release, he posed no significant safety risk.
According to County Defendants, MHC Alto did not rely on any assumptions in completing the ISP assessment, as confirmed by her deposition testimony.
The Court noted that there appears to be no opinion offered by Metzner about any assumptions MHC Alto made during her ISP assessment.
It was held that Metzner’s opinion in this respect is, by his own admission, only relevant if MHC Alto made an assumption regarding the 5150 hold release during her ISP assessment of Morton. As such, to the extent Plaintiffs put forth evidence that MHC Alto made such an assumption during the ISP assessment, Metzner may testify that, in his expert opinion, relying on such an assumption contributed to the reasons her care fell below the acceptable standard. But if Plaintiffs fail to offer evidence that MHC Alto relied on this assumption, or any assumption regarding Morton’s release from the 5150 hold, during her ISP assessment, Metzner cannot, and seemingly does not, offer an opinion in this respect.
c. Causation
County Defendants also take issue with Metzner’s opinion “that if Alto had obtained Morton’s Alvarado Parkway Institute (“API”) Records, it would have made a difference for Morton here because, according to Metzner, Morton’s medical history as provided by him to VDF medical staff was not consistent with information in the API records.”
The Court held that Plaintiffs can put forth evidence of the 5150 hold records and Metzner can opine that MHC Alto’s care was substandard for her failure to obtain these records. But ultimately, it is up to the jury to determine the import of these records and opinion testimony—for example, whether MHC Alto would have or should have done anything different, including whether she would have concluded Morton was suicidal, had she obtained and reviewed these records.
3. Opinions re MHC Sparks
County Defendants challenged Metzner’s opinion regarding MHC Sparks’ failure to complete Morton’s 24-hour ISP follow-up assessment. The Court held that Metzner’s opinion as to the reasoning behind why MHC Sparks did not perform the follow-up assessment appears to be based wholly on speculation and not any reliable methodology or specialized experience.
County Defendants also challenged two opinions Metzner offered during his deposition as beyond the scope of his report. First, Metzner opined that the nature of Morton’s phone conversations with girlfriend and mother were much more suicidal related to the conditions to confinement. He felt that a 24-hour assessment was necessary.
The Court agreed that this opinion appears to be beyond the scope of Metzner’s expert report. However, the Court is not persuaded that it should be excluded on this basis alone. In this case, County Defendants do not explain how they have been prejudiced by Metzer’s failure to include this opinion in his written report. In any event, the record is clear that his failure to do so was harmless because County Defendants had sufficient time and ability to question Metzner on this opinion when he raised it during his deposition.
County Defendants also challenged an opinion Metzner made on page 67 of his deposition. The record is devoid of page 67 of Metzner’s deposition transcript. Without the benefit of the evidence County Defendants seek to exclude, the Court cannot determine whether it is subject to exclusion.
4. Policies & Training
County Defendants asked the Court to exclude Metzner’s opinions on the sufficiency of the County’s suicide prevention policies and training.
Metzner further opined during his deposition that the the ISP “assessments were not very standardized and really varied depending on who the clinician was doing it.”
It should be noted that Metzner has ample experience in correctional mental healthcare including suicide prevention programs, policies, and training in the correctional setting. And here, Metzner identifies the policies he reviewed prior to coming to this conclusion.Thus, he adequately explains the basis for his opinion, and the Court is satisfied that his opinion is sufficiently reliable.
5. Opinions re Nurse Macanlalay
According to Metzner, “[t]he decision by Samantha Macanlalay RN on 5/11/2020 that a release of information for outside healthcare records was not indicated was problematic in the context of a very recent psychiatric hospitalization following a serious suicide attempt. Obtaining such information would have assisted in the suicide risk assessment process.”
County Defendants sought to exclude Metzner’s opinions about Nurse Macanlalay as irrelevant because she has since been dismissed from this lawsuit.
The Court agreed with County Defendants that Metzner’s opinion that Nurse Macanlalay’s assessment was “problematic” is not probative of any fact or issue in this case.
6. Summary of Records
Finally, County Defendants challenged Metzner’s summary of the record in his report. According to County Defendants, this evidence is impermissible because his summary paraphrases the evidence and is incomplete.
To the extent Metzner’s report includes an unadorned regurgitation of the facts, evidence, and/or record in this case, the Court held that his opinion and testimony is impermissible.
County Defendants also specifically challenged Metzner’s summary of the Citizens’ Law Enforcement Review Board (“CLERB”) report, State Auditor’s report, Critical Incident Review Board (“CIRB”) reports, and Disability Rights California (“DRC”) report.
As to the CLERB report summary, the Court agreed that Metzner’s evidence is subject to exclusion. Metzner quoted a portion of the report and comments that a statement contained therein is inaccurate based upon evidence elsewhere in the record. This opinion does not appear to be based on any expertise or particular experience, and a factfinder does not need any specialized knowledge to review two documents and determine whether they are inconsistent.
A review of Metzner’s summary of the State Auditor’s report, reveals no opinions or other commentary— Metzner simply summarizes the report and its findings. The Court held that it is impermissible.
Turning to the CIRB reports, Metzner indicated that he reviewed reports from January 2015 to August 2019 and opines on the adequacy of these reports and that there are “common themes” between the prior incidents and the issues he identifies as connected to Morton’s suicide. The Court is satisfied that, if relevant, this opinion is reliable and based on Metzner’s experience and qualifications.
Finally, as with his summary of the State Auditor’s report, Metzner merely restates part of the DRC report. The Court held that this evidence is subject to exclusion as unreliable and improper.
Motion to Exclude Campbell’s Opinions
To suggest that Morton’s estate is not a party to this litigation is inaccurate
Campell offers her opinion on Plaintiffs’ economic damages based upon Morton’s income projections, personal consumption, and household services as well as other costs attributed to his wrongful death.
First, County Defendants asserted that Campbell’s report estimates the value of Morton’s hypothetical future estate as the value of wrongful death damages, but that “Morton’s estate, should one exist, is not a Plaintiff in this litigation.”
To suggest that Morton’s estate is not a party to this litigation is inaccurate. The Court held that County Defendants appear to misapprehend the distinction between wrongful death claims and survival claims and their related damages. Damages for a wrongful death claim are personal to those who survive the decedent whereas damages for claims that survive death are personal to the decedent. For wrongful death claims, i.e., where heirs or survivors can recover their own damages based upon the death of their loved one, a Plaintiff may recover both economic and noneconomic damages.
A review of Campbell’s report reveals that her opinions fall squarely within the realm of permissible wrongful death damages evidence and that she does not improperly include damages particular to Plaintiffs as individuals. And because Plaintiffs press a wrongful death claim, this evidence is relevant assuming they can prove liability.
Campbell calculated Morton’s earning potential based upon various factors and variables
County Defendants asserted that Campbell’s opinions are unreliable. The Court disagreed. Campbell calculated Morton’s earning potential based upon various factors and variables.
She also considered his past history of work. And she sufficiently explained and supported the basis for her calculations. Her ultimate conclusion is that, based upon these variables, Plaintiffs’ damages range from $495,702.17 to $1,082,185.53 if Morton was single with no children, which he was at the time of his death. The Court is satisfied that Campbell’s opinion is based upon a reliable methodology and that County Defendants challenges goes to the weight of Campbell’s evidence, which they can attack on cross-examination.
Held
The Court granted in part County Defendants’ motion to exclude the expert opinions and testimony of Dr. Jeffrey Metzner.
The Court denied County Defendants’ motion to exclude the expert opinions and testimony of Dr. Kaycea Campbell.
Key Takeaway:
Metzner has ample experience in correctional mental healthcare including suicide prevention programs, policies, and training in the correctional setting but his opinion regarding MHC Sparks’ failure to complete Morton’s 24-hour ISP follow-up assessment appears to be based wholly on speculation and not any reliable methodology or specialized experience.
Also, Campbell arrived at Morton’s earning potential based upon various factors and variables after considering his past history of work. And she sufficiently explains and supports the basis for her calculations.
Wave Neuroscience alleged that Brain Frequency infringed four patents in this case. The vast majority of claims asserted in this litigation against Brain Frequency are method claims that relate to the performance of a medical procedure by medical practitioners on patients. Defendants claimed that Brain Frequency is immune because it is a “related health care entity” that merely facilitates the performance of those accused medical activities by medical practitioners.
Section 287(c) of the Patent Act, known as the Physician’s Immunity Statute, mandates an exception to infringement claims asserted under Section 271 (a) and (b) of the Patent Act. In cases where infringement allegations involve medical practitioners or physicians performing medical procedures on patients in violation of an asserted method claim, these parties are immune from all remedies associated with the alleged infringement.
The Plaintiffs contended that Brain Frequency is neither a medical provider nor a facility where medical providers practice medicine.
Wave filed a motion to strike Brain’s expert report of Dr. Jared Dempsey under Federal Rule of Evidence 702. The Court granted Wave’s motion “without prejudice to the extent Brain can cure the deficiencies with Dempsey’s qualifications.” Two weeks later—on October 17, 2024—Brain filed a “Notice of Cure.” This included a revised declaration by Dempsey which, among other things, detailed his involvement in the Study. Brain also filed, under seal, the study itself. Brain contended that this information cured the deficiencies.
Psychology Expert Witness
Jared P. Dempsey, Ph.D. serves as Chief Scientist at Trac9 Informatics. Dempsey is actively involved in neurological and physiological research in addiction.
Recent publications include preliminary evidence for a biological marker of addiction recovery, non-conscious emotional response to drug stimuli, and the influence of social anxiety on addiction treatment.
Dempsey has also served as an expert reviewer for the Journal of Motivation and Emotion, Psychopharmacology, Journal of Psychopathology and Behavioral Assessment, American Journal on Addictions, Addiction, Psychiatry Research, European Psychiatry, Nicotine and Tobacco Research, and the Journal of Studies on Alcohol and Drugs.
Dempsey was also actively involved in the development of a comprehensive symptom tracking and outcome data collection tool for addiction treatment, Trac9.
Initially, the Court held that Dempsey did not have the proper qualifications because there was insufficient evidence to demonstrate he had “advanced training or experience” in Transcranial Magnetic Stimulation (“TMS”). The Court found that the reference to a single research project related to TMS from May 2022–April 2024 (the “Study”) on Dempsey’s curriculum vitae, without further information, did not establish that he had a “hands-on or technology-facing” role.
However, Dempsey attests that he directly participated in the treatment of subjects using TMS and EEG technology, that he outlined the precise treatment protocols used in the study, and that he participated in the actual application of TMS using EEG and certain software to gauge the effects. This appeared to be a “forward-facing role.” Dempsey further states he has worked on the Study since 2022 for over 1,000 hours, along with months of preparatory work.
Wave’s Objections
The Court held that Wave’s two objections are unavailing. First, Wave maintained that Dempsey is not qualified to opine as a person of ordinary skill in the art (“POSITA”). Its primary qualm is that Dempsey does not explain “the nature of actual TMS treatments provided.” But the Study itself explains the nature of the treatments. And the Court does not see how the “nature of the treatments,” or what the TMS treatments were targeted to, would affect whether Dempsey is a POSITA. Wave’s own proposed definition of a POSITA is not cabined to a specific type of TMS treatment.
Second, Wave also claims that it will suffer undue prejudice if Brain is granted relief. The Court does not see how Dempsey’s testimony, if any, would prejudice Wave. Wave has been on notice of Dempsey’s testimony since at least May 2024 when Brain filed its opening claim construction brief. The October 2, 2024 status conference proceeded under the assumption that Dempsey would testify at the Markman hearing. The Court explicitly granted Brain an opportunity to cure the deficiencies in its designation. The Court added that any assumption on Wave’s part that Dempsey’s conclusions or testimony would be permanently excluded was unwarranted.
Because Brain has cured the deficiencies in Dempsey’s designation as a POSITA, the Court vacated the order granting Wave’s motion to strike. Wave may, of course, seek appropriate discovery, including an abbreviated deposition of Dempsey, to inquire into issues that impact the credibility and weight of his testimony (e.g., his background, experience, and any other appropriate matters). Such discovery will be sufficient to cure any “prejudice” that Wave has suffered in the past three weeks.
Held
The Court held that the that the order granting motion to strike Brain Frequency’s expert Jared Dempsey is vacated, and Wave’s motion to strike Dempsey is denied.
Key Takeaway:
Initially, the Court held that Dempsey did not have the proper qualifications because there was insufficient evidence to demonstrate he had “advanced training or experience” in Transcranial Magnetic Stimulation (“TMS”). Two weeks later, Dempsey submitted a revised declaration which, among other things, detailed his involvement in the Study. The Court found that Dempsey directly participated in the treatment of subjects using TMS and EEG technology, that he outlined the precise treatment protocols used in the study, and that he participated in the actual application of TMS using EEG and certain software to gauge the effects.
Case Details:
Case Caption:
Wave Neuroscience, Inc. V. Brain Frequency Llc Et Al
A district judge in Washington refused to admit the Law Enforcement Expert Witness’ testimony with regard to the claims of outrage, negligence and assault filed against the Seattle Police Department.
On May 30, 2020, organizers planned two demonstrations in downtown Seattle to protest the May 25, 2020 killing of George Floyd in Minneapolis: (1) “The March for George Floyd,” scheduled from 12:00 p.m. to 6:00 p.m. on Fifth Avenue, and (2) “The Defiant Walk of Resistance Against Injustice,” scheduled to begin at 3:00 p.m. and to go from Westlake Park to the federal courthouse at Seventh Avenue and Stewart Street. Sergeant Sean Moore served as the leader of Platoon 1’s West Bikes #3 at The Defiant Walk of Resistance Against Injustice.
After learning about the demonstrations through his parents or his church, Avery decided to attend the events along with his young son J.A., other family members, and church members.
Plaintiffs Are Injured During the May 30, 2020 Demonstrations
An escalation between officers and demonstrators ensued after the arrest of one of the demonstrators. Several demonstrators, including two female demonstrators (one wearing a black sweatshirt and one wearing a white t-shirt and bike helmet), moved toward the police line. At one point, Officer Moore ran up to the line from behind and repeatedly yelled “Move back!” with a blast ball in his left hand and OC spray in his right hand. The female demonstrator wearing the bike helmet then shouted “You move back!” while pushing over the line, grabbing an officer’s baton, and pushing back against him.
At the beginning of this disturbance, Avery moved quickly to his left towards the disturbance, holding J.A. to his right side and approaching until he was immediately behind the female demonstrator. Then, without verbal warning, Officer Moore deployed OC spray in the direction of this demonstrator.
When Officer Moore deployed the OC spray at the female demonstrator in the bike helmet, Avery had his left arm around her waist as she turned away from the spray, exposing his left side to Officer Moore’s deployment. Avery had his right arm around J.A., who stood behind his father and the female demonstrator. As Avery and J.A. retreated from the altercation, Avery placed his left hand on or near J.A.’s face and kept his arms around him as they walked away. Moments later, J.A. began reacting to the OC spray’s painful effects and received assistance from other demonstrators.
Motion to exclude
Avery initiated this action in April 2022, raising claims for violations of the Washington Law Against Discrimination, outrage, negligence, assault, and constitutional violations under 42 U.S.C. § 1983.
The City moved to exclude the testimony of Plaintiffs’ law enforcement expert, Russ Hicks, because his report consisted of opinions which were “improper legal conclusions and lacked any expert analysis that might be helpful to a jury.”
Law Enforcement Expert Witness
Russ Hicks is a retired, 30-year law enforcement officer and former police academy supervisor and trainer. He was a commissioned police officer from 1991-2016. He was also an instructor at the Washington State Criminal Justice Training Commission (WSCJTC) from 2007-2021.
Many of Hicks’ Opinions Consisted of Legal Conclusions
The Court agreed with the City when it contended that many of Hicks’ opinions consisted of legal conclusions. For instance, Hicks repeatedly characterized the actions of Seattle Police Department “SPD” as “negligent,” concluded that Officer Moore’s use of force was “excessive,” and stated that Plaintiffs “were seized” by Officer Moore’s use of force. The Court held that almost all of Hicks’ opinions are supported by nothing more than conclusory statements.
Hicks’ Opinions Were Mostly Unsupported
Hicks speculated that it is more likely than not that if Officer Moore had provided a warning about the pepper spray, she would have let go of the baton and Sgt. Moore wouldn’t have deployed this MK-9 pepper spray. The Court held that Hicks provided no support whatsoever for this opinion, rendering it unreliable. He did not explain how his experience led to the conclusion reached.
As for Hicks’ opinion that SPD’s failure to “provide or call for aid for Avery and his 7-year-old son” was contrary to law, training, and policy, the Court held that it did not offer any specialized knowledge and in fact contradicted the video evidence. He asserted that the alleged failure to aid was contrary to training, explaining only that officers “are provided with instruction on providing first aid to subjects injured by law enforcement” at WSCJTC training. The Court held that he did not explain how such training bears on the facts at issue beyond the suggestion that officers knew how to administer first aid.
The Court found Hicks’ opinion that “Officer Moore deviated from SPD policy regarding providing warnings in advance of deploying pepper spray despite having enough time to give a warning” similarly unsupported because untrained layman would be qualified to determine that issue.
Finally, Hicks opined that Officer Moore should have used the MK-4 pepper spray instead of the MK-9 because “it is possible that the smaller dispersal area [of the MK-4] would have satisfied the immediate safety goal.” The Court, once again, held that Hicks failed to “back up his opinion with specific facts.”
Held
The Court granted the City’s motion to exclude the testimony of Plaintiffs’ law enforcement expert, Russ Hicks.
Key Takeaway:
The Court held that almost all of Hicks’ opinions were supported by nothing more than conclusory statements. Conclusory assertions like those contained in Hicks’ report would not assist the trier of fact to understand the evidence.
Nothing in either Daubert or Rule 702 requires the district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.
The Plaintiffs—Michael Johnson, Charles Cunningham, Jerry Bailey, Eric Woodward, Michael Darbonne, Michael McCullough, Christopher Harrington, Demon Benjamin, and Pamela Green—filed a lawsuit against Packaging Corporation of America (“PCA”), Boise Packaging & Newsprint, LLC (“BPN”), Boise, Inc. (“Boise”), and Rick Butterfield after a tragic explosion at PCA’s DeRidder, Louisiana paper mill on February 8, 2017. During the mill’s annual shutdown for maintenance, inspections, and upgrades, a foul condensate tank (“FCT”) exploded, causing injuries to individuals employed by Elite Specialty Welding, LLC and Top Deck, Inc., the contracting companies involved in the maintenance work.
The Plaintiffs asserted that the Defendants were fully aware that the foul condensate tank (“FCT”) posed a significant risk of causing severe and life-threatening injuries. In an attempt to invoke the intentional act exception to worker’s compensation immunity, the Plaintiffs argued that the Defendants were conscious of the high probability of the incident at the mill, given their prior knowledge of hazards linked to flammable emissions from tanks used in mill operations.
They further alleged that the Defendants knowingly disregarded established rules, regulations, and safety norms by directing work in close proximity to tanks containing these known dangers, which could serve as sources of ignition. The Plaintiffs contended that the Defendants should be held accountable for the outcomes of their actions, asserting that all the necessary elements for an explosion—fuel, ignition source, and oxygen—were present at the time of the incident. The Plaintiffs attributed the knowledge of these elements to the Defendants based on statements made by the Defendants’ employees. They argued that since the Defendants were aware of the flammable gases in the foul condensate tank, anticipated oxygen entry, and knew about welding activities above the tank, they effectively understood that an explosion was unavoidable.
The Defendants requested a summary judgment on all of the Plaintiffs’ claims. On July 27, 2021, the Court granted the Defendants’ motion regarding the intentional act exception. The Court concluded that the Plaintiffs failed to demonstrate a genuine issue of material fact concerning whether the Defendants “intended” the explosion to happen as outlined in the exception. The Court specified that the evidence presented by the Plaintiffs in support of the summary judgment only indicated that the Defendants were aware that fuel, oxygen, and an ignition source would be in close proximity. However, the Plaintiffs did not establish that the Defendants were “substantially certain” that the explosion would take place.
The Plaintiffs put forth Eric Van Iderstine as a liability expert to provide testimony during the trial based on his “engineering investigation” of the explosion in question. The Defendants objected to this, contending that Van Iderstine’s opinions and testimony regarding the Defendants’ alleged knowledge and state of mind wouldn’t assist the fact-finder in comprehending the evidence or establishing a pertinent fact, as mandated by Federal Rule of Evidence 702. Consequently, the Defendants sought to have Van Iderstine’s testimony excluded.
Mechanical Engineering Expert Witness
Eric Van Iderstine is a Consulting Mechanical Engineer and Director of Mechanical Engineering at McSwain Engineering located in Pensacola, Florida. He earned a Bachelor of Science in Mechanical Engineering from Mississippi State University, where he graduated with honors. Van Iderstine is currently a registered Professional Engineer in the states of Florida and Alabama. Van Iderstine has testified in state and federal courts, having been qualified as a Mechanical Engineer in the areas of failure analysis and mechanical engineering design.
Discussion by the Court
Van Iderstine’s expert report and deposition centered on his assessments regarding the Defendants’ supposed awareness and mindset concerning the potential for an explosion at the Mill. His report stated that, drawing from previous similar incidents, the conditions leading to the DeRidder explosion were familiar within the industry and would likely have been within the Defendants’ knowledge. Van Iderstine concluded that there existed a substantial certainty that an incident of this nature would occur and that the Defendants would have been aware of this heightened risk.
He expressed the belief that the Defendants neglected this risk when they made the decision not to empty the contents of the foul condensate tank (“FCT”)—specifically, to drain, flush, and open the vessel—before undertaking hot work.
The Court determined that Van Iderstine lacked the qualifications—pertaining to knowledge, skill, experience, training, or education—to provide testimony regarding the Defendants’ knowledge or state of mind.
The Plaintiff conceded that, concerning opinions related to the Defendants’ actual subjective knowledge and state of mind, the motion became moot. The Plaintiffs decided not to present these opinions during the trial. However, they urged the Court to reject the motion concerning other opinions expressed by Van Iderstine, as referenced in the Defendants’ motion. The Plaintiffs argued that regardless of the admissibility of expert opinions regarding a party’s subjective knowledge, the law allows an expert to utilize training and experience to assist the jury in assessing a party’s knowledge based on evidence of what someone in the party’s position would likely have known. Therefore, the Plaintiffs asserted that these opinions should be admissible.
The Court rejected the nuanced attempt at distinction, deeming it unconvincing. It concluded that Van Iderstine lacked specialized knowledge or experience within the pulp and paper industry. Consequently, the Court ruled that Van Iderstine would not be allowed to provide opinion testimony regarding what a reasonable owner or operator of a pulp and paper mill should have known based on industry knowledge.
The Court dismissed the Plaintiff’s argument stating that inquiries about the basis and sources of an expert’s opinion pertain to the weight given to that opinion rather than its admissibility. Recent revisions to FRE 702 and the official comments clarified that this understanding of the Court’s inquiry under Daubert and FRE 702 was inaccurate. The rule change aimed to guide district courts to specifically conduct the gatekeeping examination outlined in Daubert and focus on determining admissibility and refrain from bypassing the admissibility determination in favor of a question of weight to be decided by a fact finder.
The Committee Notes highlighted that some courts had previously regarded the sufficiency of an expert’s basis and the application of their methodology as matters of weight rather than admissibility. However, the Notes pointed out that such rulings were viewed as an incorrect application of Rules 702 and 104(a).
The Court’s ruling barred Van Iderstine from providing opinions regarding what the Defendants knew. Additionally, he was not permitted to offer opinions on what a prudent owner or operator should have known based on industry knowledge. The Court deemed that the jury was fully capable of connecting the dots between industry knowledge and best practices to the conditions leading to the alleged explosion. Van Iderstine’s proposed opinion about what the Defendants should have known was considered excessive and intruded into the jury’s province to determine if the Defendants adhered to a reasonable standard of care.
Held
The Court granted the Defendants Motion in Limine to Exclude the Opinions and Testimony of Plaintiffs’ Expert Eric Van Iderstine Regarding Defendants’ Knowledge and State of Mind.
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 importance of expert testimony was highlighted through a series of key determinations by the Court. Firstly, the Court emphasized the critical nature of an expert’s qualifications. Specifically, the Court assessed the expertise of Van Iderstine, ultimately finding that his lack of specialized knowledge in the industry impacted the admissibility of his opinions. Secondly, the limitations concerning expert testimony on a party’s subjective knowledge or state of mind were underscored; such opinions might be restricted or considered moot in Court proceedings. Moreover, the Court outlined the boundaries for experts, emphasizing that opinions extending beyond their specialized knowledge could face exclusion or limitations, especially if they encroached upon the jury’s decision-making domain. Recent revisions to the Federal Rules of Evidence (FRE 702) clarified the distinction between the admissibility and weight of expert opinions, prompting courts to focus on admissibility rather than solely evaluating the weight of such opinions. Additionally, the Court’s gatekeeping role in determining the admissibility of expert testimony, primarily focusing on an expert’s basis and methodology as per Daubert principles, was highlighted. Lastly, the jury’s role in connecting industry knowledge, best practices, and the circumstances leading to an incident was emphasized. Expert opinions should aid in understanding complex matters without infringing upon the jury’s responsibility in determining reasonable standards of care.
