This case arises out of excessive force and retaliation that Plaintiff allegedly suffered while incarcerated at Dixon Correctional Institute.
Plaintiff requested the Court to exclude the testimony of Kerry Najolia, Defendants’ expert on “police practice, procedure, training, officer survival/defensive tactics, officer use of force and police canines.”
Law Enforcement Expert Witness
Kerry J. Najolia has 42 years of law enforcement experience, including patrol work, investigations, SWAT, and law enforcement consulting. His academic instructional background spans the last 28 years, including roles as POST Academy Staff Instructor, Assistant Training Director, and Training Director for the Jefferson Parish Sheriffs Office Training Academy.
First, Plaintiff argued that Najolia has no expertise in penological practices and procedures because he has never worked in a prison setting.
The Court found Najolia to be unquestionably a qualified expert in the area of law enforcement, training and use-of-force. Although Najolia’s experience in prison settings, or lack thereof, is a topic that Plaintiff may explore on cross-examination, it did not form a basis for the wholesale exclusion of Najolia’s testimony.
B. Whether Najolia’s Testimony Will Assist the Trier of Fact
Second, Plaintiff argued that Najolia’s expert report did what the jury alone is allowed to do: weigh evidence and make credibility determinations. Plaintiff contended that there is no role for an expert such as Najolia in this case, which asks the jury to believe certain facts and disbelieve or ignore others.
Defendants argued that the purpose of Najolia’s testimony is to provide the jury with guidelines of customary and proper procedures by which to judge the Defendants’ actions for reasonableness.
According to the Court, Najolia may testify generally about the appropriate use of force in the prison setting. Once the facts necessary for Najolia to render an opinion are in evidence, he may assume those facts as a hypothetical and give opinion testimony based on the assumption of those facts. Najolia may not, without more, offer the following opinions, which simply accept Defendants’ version of events and reject Plaintiffs version of events.
C. Whether Najolia May Offer Legal Conclusions
Third, Plaintiff argued that the question of whether Defendant was justified in his use of force “imposed legal questions that Najolia cannot testify to without invading the province of both the jury and the Court.”
In accord with other courts that have considered this issue, the Court found that Najolia may not opine on the ultimate issue of whether Montgomery’s actions were “reasonable” under the applicable legal standard.
D. Whether Najolia May Rely on Medical Summary
Finally, Plaintiff argued that Najolia improperly relied on a medical summary in forming his opinions, which constituted hearsay.
Najolia’s reliance on a medical summary did not support exclusion of Najolia’s opinion at this time. Instead, once the facts necessary for Najolia to render an opinion are in evidence, he may assume those facts as a hypothetical and give opinion testimony based on the assumption of those facts.
Held
The Court granted in part and denied in part Plaintiffs’ motion in limine to exclude the testimony of Kerry Najolia.
Key Takeaway
Whether the officers’ actions were reasonable or they used excessive force is an ultimate question for the jury to decide after they have heard the evidence and this Court has instructed them on the law at the conclusion of the case. Testimony that tells the jury what conclusion to reach or merely states a legal conclusion is not helpful to the jury.
Plaintiff State of Washington alleged that Novo Nordisk Inc. (“NNI”) caused physicians to prescribe its drug, NovoSeven®, to Washington hemophilia patients by: (1) promoting it “off-label” for prophylaxis and “high dose” use; (2) paying kickbacks to physicians; and (3) paying bribes to patients, all of which rendered claims to Medicare and Washington Medicaid false.
The State of Washington has been investigating this case for almost fifteen years, hoping to find evidence of unlawful conduct that allowed its Medicaid program to recoup money it paid for a medically necessary, life-saving drug.
Novo Nordisk’s expert, Dr. Anupam B. Jena, a medical doctor who also has a Ph.D. in economics opined that NNI’s “alleged publication strategy” did not cause the submission of false claims for NovoSeven.
Washington did not challenge Jena’s credentials or expertise, but it did argue that his “causation” opinions were not admissible because (1) they were based on insufficient or mis-stated facts; (2) his methodology was unreliable because though he is not an expert on the independence of medical publications, he makes “assumptions” about the integrity of the publications at issue, while ignoring other evidence particular to the publications and strategies at issue; (3) he opined about areas of medicine and reimbursement that are outside his expertise; and (4) he opined about the law of causation, a matter better left for jury instructions.
Internal Medicine Expert Witness
Dr. Anupam B. Jena, MD, PhD, is the Joseph P. Newhouse Professor of Health Care Policy at Harvard Medical School and a physician in the Department of Medicine at Massachusetts General Hospital. He is also a faculty research associate at the National Bureau of Economic Research. As an economist and physician, Jena’s research involves several areas of health economics and policy including the use of natural experiments in health care, the economics of physician behavior and the physician workforce, medical malpractice, the economics of health care productivity, and the economics of medical innovation.
Jena graduated Phi Beta Kappa from the Massachusetts Institute of Technology. He received his MD and PhD in Economics from the University of Chicago and completed his residency in internal medicine at Massachusetts General Hospital. He is the host of the Freakonomics, MD podcast, which explores the “hidden side of health care.”
The Court concluded that Jena is qualified to opine on the bulk of topics in his Report, including the reliability of peer-reviewed publications. He has sufficient expertise and experience in the field of physician behavior in connection with writing prescriptions to set out the many factors that can influence treating physicians in their selection of pharmaceuticals to prescribe for their patients.
While Jena’s testimony was largely permitted because he is a qualified expert in the fields of medicine and economics and his report is based on sufficient facts or data, Jena was barred from opining on the ultimate legal conclusion that the physicians who prescribed NovoSeven did not do so because of the inducements and benefits NNI extended to them or their patients.
Held
The Court granted in part and denied in part the Plaintiffs Siegel and Washington’s motion to exclude the testimony of Defendant Novo Nordisk’s expert witness, Dr. Anupam Jena.
Key Takeaway:
As a general rule, an expert opinion is not objectionable simply because it embraces an ultimate issue to be decided by the trier of fact. However, an expert cannot opine as to a legal conclusion, or to the ultimate issue of law; instructing the jury on the applicable law is the Court’s distinct and exclusive province.
Please refer to the blogs previously published about this case:
Delilah Diaz was stopped at the U.S.-Mexico border with over 54 pounds of methamphetamine hidden in her vehicle. She was charged with importing methamphetamine and she claimed not to know that the drugs were hidden in the car. To rebut Diaz’s claim, the Government planned to call Homeland Security Investigations Special Agent Andrew Flood as an expert witness to testify that drug traffickers generally do not entrust large quantities of drugs to people who are unaware they are transporting them.
Rule 704(b) provides that “in a criminal case, an expert witness must not state an opinion about whether the Defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”
Discussion by the Court
Federal Rule of Evidence 704(a) sets out a general rule that “an opinion is not objectionable just because it embraces an ultimate issue.”
Rule 704(b) in criminal trials aims to prevent expert witnesses from directly stating their opinions about a Defendant’s mental state. This rule is crucial because it ensures that the jury independently evaluates and decides on the Defendant’s mental state, a central issue in the trial. By maintaining this separation, the rule upholds the jury’s primary responsibility to assess evidence and make determinations regarding the Defendant’s state of mind.
The Court held that Agent Flood’s testimony did not violate Rule 704(b) because Agent Flood did not express an opinion about whether Diaz herself knowingly transported methamphetamine. Instead, he testified about the knowledge of most drug couriers. That opinion does not necessarily describe Diaz’s mental state.
Diaz argued that Agent Flood functionally stated an opinion about whether she knowingly transported drugs when he opined that most couriers know that they are transporting drugs. The Court stated that an opinion about most couriers is not an opinion about all couriers.
Agent Flood asserted that Diaz was part of a group of persons that may or may not have a particular mental state. The ultimate issue of Diaz’s mental state was thus left to the jury’s judgment.
The Court agreed with Diaz that Agent Flood could not testify in absolute terms about whether all couriers knowingly transported drugs. But, insofar as Agent Flood planned to testify only that most couriers know they are transporting drugs, the Court concluded that his testimony was admissible.
Held
Agent Flood’s opinion that “most people” in a group have a particular mental state is not an opinion about “the Defendant” and thus did not violate Rule 704(b). Because Agent Flood did not opine about whether Diaz knowingly transported methamphetamine, the Court concluded that the testimony did not violate Rule 704(b).
Key Takeaway:
Rule 704(b) applies only to opinions about the Defendant. Because Agent Flood did not express an opinion about whether Diaz herself knowingly transported methamphetamine, his testimony did not violate Rule 704(b). Agent Flood instead testified about the knowledge of most drug couriers.
A district judge in Nevada held that a Sales Expert Witness’ opinions about the termination of a distributorship agreement were nothing more than common sense.
Facts:
Temsa primarily sought redress for Defendant TC Nevada, LLC’s (“TC Nevada’s”) unlawful use and possession of certain motorcoaches manufactured by Temsa.
Temsa is a leading commercial vehicle manufacturer of motorcoaches, buses, and light trucks, which are manufactured in the Republic of Turkey and sold worldwide. Prior to being terminated by Temsa, non-party CH Bus Sales, LLC (“CH Bus Sales”) was the exclusive distributor of Temsa’s motor coaches. In distributing the motorcoaches, CH would owe Temsa, as the manufacturer, approximately $209,000 to $382,000 per motorcoach. TC Nevada is currently in possession of at least seven (7) and as many as thirty (30) motorcoaches that were manufactured by Temsa, but were never paid for by CH Bus Sales. While seeking to collect the unpaid balance from CH Bus Sales, Temsa alleged that the individual defendants, Michael Haggerty, Olga F. Haggerty, and John P. Haggerty all conspired with each other and with Defendant TC Nevada to gain possession of the motorcoaches despite knowing of Temsa’s continued ownership interest in the property.
According to Temsa, neither TC Nevada nor the individual defendants have paid Temsa for the motorcoaches which TC Nevada currently uses in the operation of its shuttle service business in Las Vegas.
Temsa sought to strike the reports and testimony of Defendants’ experts, John Beck and Karl Schulze, whom Temsa contended offered opinions regarding irrelevant subject matters. Temsa further contended Defendants’ experts opined on ultimate issues of law, telling the jury what results to reach. With respect to defense expert John Beck, Temsa contended termination of agreements between Temsa and CH Bus Sales, LLC (“CH”) had no relevance to issues before the Court. Temsa further contended defense expert Karl Schulze’s opinions regarding the exercise of sound business judgment and fraudulent transfer were inadmissible because these opinions pertained to “irrelevant legal doctrines.”
Business Litigation Expert Witness
Karl J. Schulze is a Certified Public Accountant (CPA), a Certified Valuation Analyst (CVA), a Certified Fraud Examiner (CFE), and is Certified in Financial Forensics (CFF) by the AICPA. He has worked with middle-market and Fortune 500 companies on issues relating to corporate governance (he is ISS Certified in Corporate Governance and Directorship), crisis management, strategic planning, insolvency management, acquisition and feasibility analysis, debt restructuring and general management consulting, in addition to conducting fraud investigations and consulting and testifying on litigated matters. Schulze has testified in a broad variety of business-related matters, shareholder disputes, alter ego and corporate governance matters, intellectual property, real estate and employment-related litigation, and has served as consultant and expert in arbitrated and mediated matters. He has testified as expert in deposition and trial, and has qualified in numerous courts and jurisdictions.
John D. Beck has been involved in sales and manufacturing for his entire 40 year career. He has worked for 3 privately owned companies and enjoyed success at each of them.
On January 10, 2024, Defendants designated Karl J. Schulze, CPA as an expert witness and John D. Beck as a lay expert witness. Temsa argued that both of them opined on ultimate issues of law.
Beck Does Not Offer Expert Testimony
Beck’s purported expert report is a total of two pages long. The report identifies the two questions Beck was asked to answer, includes a page summarizing the documents Beck reviewed and his experience in the manufacturing and distribution of buses, and ends with two short paragraphs (each two sentences) stating Beck’s opinions.
Beck opines termination of a distributorship agreement would negatively impact (1) the distributor, especially if the manufacturer sells its product directly at discounted prices, and (2) the distributor’s ability to honor any maintenance program in place. That termination of contracts to distribute and maintain a product would negatively impact the party who, before termination, distributed and maintained the product is obvious—again, simple common sense. These opinions are not beyond the knowledge of an average juror.
The Court held that Beck’s opinions will not help the jury understand facts at issue. For this reason, Beck’s opinions did not satisfy the requirements of Rule 702.
Finally, to place the “expert” moniker on Beck’s conclusions risked giving special weight to evidence that is, at best, not clearly tied to the claims raised by Temsa. That is, a review of the Complaint shows there is no dispute that Temsa terminated contracts establishing CH as the exclusive distributor for Temsa’s products. There is also no dispute that CH is not a Defendant in this action, nor is it a third party Plaintiff suing Temsa.
The Complaint does not mention either the existence of a maintenance contract between Temsa and CH or the breach of such agreement. Beck’s testimony does not demonstrably advance a material aspect of the case.
Will Beck’s Testimony be Admissible in his Capacity as a Lay Witness?
Nonetheless, the District Judge will decide at a later date whether Beck’s testimony may ultimately be admissible in his capacity as a lay witness. Although the Court notes above that CH is not a party to this action, Defendant Michael Haggerty is the alleged Chairman of the Board of CH Bus Sales, LLC, and Temsa referenced CH in its complaint. These references do not appear to relate to whether CH could continue to sell Temsa buses or whether CH could “maintain or honor any maintenance programs.”
Instead, Temsa’s allegations relate to who owned the motorcoaches, whether CH paid Temsa for the motorcoaches, whether CH had the authority to sell Temsa motorcoaches, Defendants’ alleged disruption of Temsa’s contractual relations, and Defendants’ retention of the benefit from the motorcoach sales.
Initially, Beck’s testimony seemed to have limited relevance. However, the Court cannot definitively rule out its relevance entirely and thus cannot justify its exclusion. Such a finding is premature and must await a more thorough presentation of evidence during the trial.
Court Limits Expert Opinions Offered by Karl Schulze
Schulze’s expert report offered two opinions each challenged by Temsa. The Court found Schulze’s opinion that Haggerty “exercised sound business judgment” when he paid a debt owed to U.S. Bank rather than a debt owed to Temsa, and did so in compliance with Minnesota law, was an opinion telling the jury what the outcome of this defense should be. The opinion crosses the line from reaching an ultimate issue of fact to stating a conclusion of law.
Schulze’s second opinion listed the elements of a voidable transaction (a fraudulent transfer) under Minnesota statutory law. Schulze then did an “evaluation” of facts applied to each element of the law he quotes. In doing so, Schulze stated that some elements identified for purposes of “determining actual intent” were inapplicable to the instant dispute. Schulze also offered short statements of fact supposedly applicable to the remaining “intent” factors. The Court held that Schulze did no expert analysis of these facts. He merely stated conclusions.
Even assuming Schulze is qualified to offer the opinions he does (as Temsa does not challenge Schulze’s qualifications), there is no discussion demonstrating what specialized knowledge underpins the basis for the conclusions Schulze reached.
Further, case law strongly suggests concluding a party misled another or made misrepresentations on which an opposing party relied is impermissible opinion testimony as it invades the province of the jury by drawing the ultimate inference or conclusion. Importantly, Schulze never offered an opinion regarding fraudulent intent and instead provided a set of shaky opinions regarding factual elements considered when determining whether a fraudulent transfer occurred.
Temsa does not challenge Schulze’s qualifications
Since Temsa did not challenge Schulze’s qualifications to offer these opinions, the Court found opinions applicable to fraudulent intent, attacked by Temsa, was best left to legal argument on the applicability of Minnesota law and attack through cross examination, contrary evidence, and attention to the burden of proof.
Held
The Court struck the expert report submitted by John Beck and decided that whether and to what extent Beck may offer lay opinions required a more complete presentation of evidence that will occur at trial.
The Court struck Karl Schulze’s expert report and testimony, to the extent it addressed the business judgment rule under Minnesota law but denied the request to strike Schulze’s expert report and testimony regarding whether Defendants’ conduct was consistent with a fraudulent transfer under Minnesota law.
Key Takeaways:
Expert opinion must have substance such that it would be helpful to the jury. In other words, it should address an issue beyond the common knowledge of the average layman. Beck’s opinions regarding the termination of contracts to distribute and maintain a product did not satisfy the requirements of Rule 702.
Lay opinion testimony must be helpful to the jury in acquiring a clear understanding of the witness’s testimony or the determination of a fact in issue. The Court cannot conclude Beck’s lay opinions have no relevance whatsoever.
Schulze’s opinion that Haggerty, in fact, exercised sound business judgment meeting the obligations established by law was telling the jury what the outcome of this defense should be. Schulze cannot offer a legal conclusion that would, in sum, take from the jury the job of applying facts to law even if application of the business judgment rule is a proper defense in this case.
Case Details:
Case Caption:
Temsa Ulasim Araclari Sanayi Ve Ticaret, A.S. V. Tc Nevada, Llc Et Al
