Expert Witness Profiler

Tag: Unhelpful

  • Accounting Expert’s Financial Testimony on Mitigation Admitted

    Accounting Expert’s Financial Testimony on Mitigation Admitted

    Plaintiffs sought to develop affordable housing in Brevard County. The Venue at Heritage Oaks Partners, Ltd. was the contract purchaser of the property. They, along with Atlantic Housing Partners L.L.L.P., intended to develop as “The Venue at Heritage Oaks,” a development comprised of multi-family dwelling units.

    Canton Construction, LLC was to construct the development, and once completed, Concord Management, Ltd. was to manage it. The project did not come to fruition, however, because in December 2023, Defendant’s board of commissioners rejected Plaintiffs’ bond financing application. 

    Plaintiffs brought this action against Defendant for damages under the Fair Housing Act and the Florida Fair Housing Act, alleging that Defendant’s rejection discriminated against racial minorities.

    Defendant affirmatively alleged that Plaintiffs must mitigate their damages and have failed to do so,” and as such, argues that “Plaintiffs’ claims should either be barred, or in the alternative, comparatively reduced in accordance with Plaintiffs’ failure to mitigate damages.

    Defendant retained Patrick Kelleher as an expert to demonstrate that “Plaintiffs’ damages model does not consider mitigation and that reasonable possibilities likely existed with respect to mitigation.”

    Plaintiffs filed a motion to exclude Kelleher’s opinions pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

    Accounting Expert Witness

    Patrick F. Kelleher is a Certified Public Accountant (CPA) and Certified in Financial Forensics (CFF) with both a Bachelor of Science in accounting and a Master of Business Administration focused on finance, and he has more than twenty years of experience in forensic and investigative accounting. Kelleher submitted a twenty-page report that stated his opinions, included the documents he considered, and explained the analysis he performed, among other things.

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

    Discussion by the Court

    Kelleher opined that “Plaintiffs have not demonstrated any economic damages with reasonable certainty, but rather have provided a model that does not reflect the timing and accuracy of the cash flows associated with the housing] project.” Kelleher also identified alleged errors and deficiencies with Plaintiffs’ model and with testimony from two of Plaintiffs’ witnesses. With respect to his methodology, Kelleher reviewed Plaintiffs’ documents and used them to render accounting and financial testimony related to mitigation. In doing so, he used calculations and analysis in accordance with the American Institute of Certified Public Accountants (AICPA) Statement on Standards for Forensic Services. He also used AICPA prescribed methods for calculating damages.

    Analysis

    Plaintiffs stated, without citations to the record or supporting caselaw, that Kelleher’s opinion was unreliable as it was not based in accounting—Kelleher’s area of expertise—but is based on a qualitative analysis. Plaintiffs also asserted that Kelleher’s opinion cannot be tested and did not use a generally accepted methodology. However, Kelleher noted that he performed his analysis in accordance with AICPA standards and followed AICPA prescribed methods for calculating damages. Courts have consistently found that such methodologies are generally accepted and thus reliable.

    Plaintiffs further challenged Kelleher’s opinions as unhelpful because they are “not beyond the understanding of the average lay person.” Plaintiffs also contended that Kelleher’s opinions offered just what Defendant’s attorney could argue in closing arguments. However, Kelleher’s testimony can assist the jury with financial and accounting principles.

    Even if Kelleher’s opinion “boils down to at its essence,” something a layperson may understand, the purpose of an expert is to help simplify complex concepts, boiling them down—as Plaintiffs point out—so that laypersons can comprehend them. 

    Although Kelleher’s conclusions may be simple, the mathematical calculations leading to such conclusions are beyond the understanding of the average layperson, so his opinions would help the jury.

    Kelleher can explain field-specific information that the average layperson does not know, including, but not limited to, the capital forces specific to Plaintiffs’ business model, the ownership structure of the entities at issue, and how these topics affect the ability to redeploy capital.

     Given the “liberal standard for relevance to whether expert testimony will aid the jury in resolving the facts,” the Court declined to exclude Kelleher’s testimony under Daubert. 

    Held

    The Court denied the Plaintiffs’ motion to exclude the opinions offered by Patrick Kelleher.

    Key Takeaway:

    If Plaintiffs wish to undermine Kelleher’s opinions, “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”

    Case Details:

    Case Caption: Atlantic Housing Partners L.L.L.P. Et Al V. Brevard County
    Docket Number: 6:23cv2473
    Court Name: United States District Court, Florida Middle
    Order Date: November 07, 2025
  • Accident Reconstruction Expert Witness’ Testimony Admitted Despite His Failure to Calculate G-Force 

    Accident Reconstruction Expert Witness’ Testimony Admitted Despite His Failure to Calculate G-Force 

    On October 24, 2019, William Harrison Sims (Plaintiff) was driving his 2004 BMW 330Ci (the “Vehicle”) in Florida when another vehicle unexpectedly turned left in front of him, causing a minor accident. As a result of the collision, the Vehicle’s front driver-side airbag was signaled to deploy. However, the airbag inflator unexpectedly ruptured and shot metal shrapnel into Plaintiff’s face and body, leading to severe, permanent, and life-altering injuries.

    Defendants, BMW of North America (“BMW NA”) and Bayerische Motoren Werke AG (“BMW AG”), procured and installed the airbag inflator during the process of designing, manufacturing, assembly, and producing the vehicle. Plaintiff filed a lawsuit against both Defendants, alleging strict liability and negligence for procuring and installing the defective airbag.

    Defendants moved to exclude testimony from Plaintiff’s expert, Perry Ponder (“Ponder”), and two demonstrative exhibits. Defendants argued that Ponder changed his opinion regarding the lane of travel occupied by the alleged at-fault driver, non-party Tameca Harris-Jackson (“Harris-Jackson”). Ponder testified at deposition that Harris-Jackson turned from one of the through lanes instead of the left lane before colliding with Plaintiff’s vehicle. Defendants also identified two demonstrative exhibits produced before Ponder’s deposition, which depicted the placement the alleged at-fault vehicle and Plaintiff’s vehicles leading up to the collision.

    Accident Reconstruction Expert Witness

    Perry L. Ponder, P.E., holds a Bachelor of Science in mechanical engineering from Florida State University and is a licensed professional engineer in the states of Florida and Illinois. Ponder specializes in accident reconstruction, failure analysis, and designing semi-trailers, truck components, underride crash protection, and patented adjustable structures. He has significant experience reconstructing accidents of various types: trucks, cars, pedestrian and cycles. 

    Want to know more about the challenges Perry L. Ponder has faced? Get the full details with our Challenge Study report.   

    Discussion by the Court

    A. Plaintiff Failed to Meet His Fed. R. Civ. P. 26(a) Expert Disclosure Obligations

    Defendants argued that Ponder, Plaintiff’s accident reconstruction expert violated Rule 26(a)(2) because he “renounced his former opinion that the Hyundai initiated its turn from the left lane of Good Homes Road while the deposition was underway.” Instead, he testified that the Hyundai turned from one of the through lanes of Good Homes Road and not from the left lane. Defendants contended that this new opinion was disclosed for the first time at the deposition.

    Plaintiff countered that Defendants misunderstood or misrepresented the opinions expressed in Ponder’s report as compared to his deposition testimony. The Plaintiff emphasized that Ponder’s report did not specify which lane Harris-Jackson was traveling in when she initiated her left turn, only stating that she started her left turn from the northbound lanes of Good Homes Road. The Court agreed with Plaintiff, stating that Ponder did not offer an opinion in his report that Harris-Jackson was traveling in the left-hand lane when she initiated the turn and collided with Plaintiff

    Moreover, Defendants failed to cite Ponder’s report to support their claim that he originally opined Harris-Jackson was traveling in the left-hand lane. Instead, Defendants cited the Crash Report created by the Orlando Police Department, a diagram of the collision prepared by a Trooper, and Harris-Jackson’s deposition. While Ponder reviewed these materials, the Court held that he did not adopt Harris-Jackson’s testimony or the police officer’s reconstruction as his opinion.

    i. Reliability of Harris-Jackson’s Testimony

    While Ponder cited Harris-Jackson’s testimony, in which she claims she stopped in the left lane and proceeded slowly after the traffic signal changed, he found Harris-Jackson’s testimony unreliable. Accordingly, Ponder did not offer a new opinion at the deposition. Even if he had, the Court held that Defendants had ample opportunity to cross-examine Ponder on the analysis employed to reach this opinion.

    Furthermore, Ponder’s relative speed calculation for each vehicle was partially offered as a rebuttal to Defendants’ expert. At his deposition, Ponder conceded that Harris-Jackson could have turned from the left lane into Plaintiff’s path. However, he opined that “her orientation is more consistent with a turn that’s a bit more mature, so to speak, getting herself westward to take the 408 west.” He concluded that if Harris-Jackson had made the turn from the left-hand lane, “you’d expect more of a nose-to-nose kind of orientation as opposed to a square orientation (indicating) that we had in this impact.”

    Regardless, the Court held that Ponder did not change his opinion at deposition, which is why the Defendants suffered no surprise or prejudice.

    B. Demonstrative Exhibits

    Defendants also challenged two demonstrative exhibits that displayed Good Homes Road intersecting with SR 408. Ponder’s report included diagrams prepared by law enforcement, as well as drone-generated top-down images of the crash scene. The Court held that the two demonstrative aids offered at the deposition are neither a surprise nor are they prejudicial because they are cumulative. Expert witnesses routinely create demonstrative exhibits on whiteboards or butcher paper at trial to drive home a point. To the extent that the demonstrative aids were untimely—which the Court does not find—their disclosure is harmless.

    C. Ponder’s Testimony is Unreliable and Unhelpful

    Defendants challenged Ponder’s accident reconstruction analysis, claiming it was unreliable and unhelpful. They argued that he failed to conduct independent testing, inspect or obtain an exemplar vehicle, drive an exemplar vehicle for work in the case, drive the intersection of the road in a Hyundai Sonata under the conditions to which he testified to or measure g-forces Harris-Jackson would have sustained had she turned from the through lane without stopping.

    However, the Court held that the Defendants’ attack on Ponder’s analysis is boilerplate and unconvincing. They listed actions Ponder could have undertaken without explaining why he would need to take these steps. Ponder’s accident reconstruction analysis followed standard procedures, including a detailed crash scene examination, review of relevant documents as well as photographs of the 2010 Hyundai. It also considered the Crash Stiffness Coefficients for BMW vehicles and the deposition testimony. He also identified the final rest location of Plaintiff’s BMW and debris field and conducted a 3D scan of the subject BMW to quantify the damage.

    Ponder then applied the General Momentum Equations to discern that Plaintiff’s BMW was traveling about 29 mph at the moment of impact, while Harris-Jackson’s Hyundai was traveling about 24 mph, with a resulting delta V, or change in velocity of 23 mph and a principle direction of force of 30 degrees counterclockwise of its longitudinal axis for the BMW. He factored in the speed and weight of the BMW to opine that the momentum was inadequate to propel the vehicle beyond the south edge of the intersection. Ponder supports this opinion with photographic evidence.

    Just because Ponder reached a conclusion that differs from a crash report prepared by a Trooper whose qualifications are unknown, the Court held that it not indicate the failure to employ “the same level of intellectual rigor that characterizes the practice of an expert accident reconstructionist.” The Court noted that Defendants did not articulate how examining or driving an exemplar vehicle would add to the analysis. It would not support the determination of the delta-V, PDOF, or relative speed of the subject vehicles. And while knowing the g-force experienced by Harris-Jackson would be interesting, the Court held that Defendants offered no support for their contention that the failure to calculate g-force undermines Ponder’s analysis.

    The Court ruled that  Ponder is a highly qualified expert whose analysis was reliable, well-supported, and helpful to the jury. His core opinions remained unchanged, and the two demonstrative exhibits did not prejudice Defendants.

    Held

    The Court denied Defendants’ motion to exclude the testimony of Perry Ponder, P.E.

    Key Takeaway:

    While the Court admitted Ponder’s testimony regarding his accident reconstruction analysis, including his calculations of the vehicles’ speeds, momentum, and impact angles, the Court did not accept Defendants’ argument that Ponder had violated Rule 26(a)(2) by changing his opinion during his deposition. The Court found no evidence that Ponder’s core opinion had changed and ruled that Defendants were not prejudiced by the introduction of the two demonstrative exhibits, as they were merely cumulative of the evidence that was already presented. Further, while Defendants challenged  Ponder’s failure to conduct independent testing and measure g-forces, the Court found these objections unpersuasive, stating that  Ponder’s methodology was consistent with standard practices in accident reconstruction. In conclusion, the Court affirmed that Ponder’s testimony was both reliable and helpful to the jury in understanding the technical aspects of the case.

    Please refer to the blog previously published about this case:

    Neurology Expert Witness’ Injury Causation Testimony Admitted

    Case Details:

    Case Caption: Sims vs. Bmw Of North America Llc
    Docket Number: 6:22cv1685
    Court: United States District Court for the Middle District of Florida, Orlando Division
    Order Date: January 13, 2025
  • Civil Engineering Expert Witness’ Generic Testimony Deemed Unhelpful

    Civil Engineering Expert Witness’ Generic Testimony Deemed Unhelpful

    A district judge in Florida decided that a civil engineering expert witness cannot testify about the alleged defects of Knauf drywalls because his testimony was generic.

    Defendants Knauf Gips KG and Knauf New Building System (Tianjin) Co. Ltd.’s (“KPT”) are foreign manufacturers accused of constructing defective drywalls that have been installed in homes across the country. Plaintiff Ina Helmick is the former owner of one such home.

    Because of the commonality of facts, all federal litigation involving this drywall was designated as a multidistrict litigation and consolidated for pretrial proceedings in the District Court for Eastern Louisiana. Subsequently, the cases in the MDL were remanded and transferred to the relevant district. Plaintiff Ina Helmick’s case was assigned to the District Court for the middle district of Florida.

    Defendants sought to exclude two experts, Howard Ehrsam and Shawn Macomber.

    Civil Engineering Expert Witness

    Howard Ehrsam P.E. is a civil engineer and president of Chinese Drywall Screening, LLC. He has worked in the fields of general contracting, land development, consulting and civil engineering design. He obtained his bachelor’s degree from the University of Florida in Civil Engineering in 1995. Ehrsam is a leading resource and advocate for property owners, contractors, attorneys, and real estate agents.

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

    Construction Expert Witness

    Shawn Macomber has a Master’s Degree in Construction Management from Louisiana State University. He has been certified as a Defective Drywall Consultant and Remediator as well as an inspector by several different certifying bodies. He is an ICC Certified Residential Building Inspector and the qualifying party for Healthy Home Solutions, LLC as a Louisiana State Residential Building Contractor.

    Discover more cases with Shawn Macomber as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    Howard Ehrsam

    First, Defendants sought to exclude in full the testimony and expert opinion of Ehrsam, a civil engineer and president of Chinese Drywall Screening, LLC. Plaintiff retained Ehrsam to opine on the common effects of Knauf Chinese drywall on the components of homes, including property within the home. According to Defendants, Ehrsam’s general opinions were unreliable, speculative, and otherwise unhelpful to the trier of fact.

    Ehrsam Provided Generic Opinions

    Ehrsam did not perform an individualized inspection or analysis of Plaintiff’s former property or any drywall allegedly within the property. Instead, he provided generic opinions on the following:

    1. Whether defective Knauf drywall produces gasses and what gasses are emitted;
    2. Whether defective Knauf drywall off gassing causes corrosion in the home and the extent of that corrosion;
    3. Whether defective Knauf drywall causes damage to components in a home and which typical components (wiring, plumbing, a/c, etc.);
    4. Whether defective Knauf drywall causes damage to personal property in the home and which items or contents are affected (computers, televisions, etc.); and,
    5. Explain the difference between defective Knauf drywall and domestic made drywall and the off gassing that has been known to occur by each.

    Ehrsam once acknowledged that there were other factors besides defective drywall that can cause corrosion or damage to property or items. In other words, he agreed that he cannot determine whether drywall caused damage in a particular Plaintiff’s home without an inspection.

    Ehrsam’s generic testimony will not be helpful to the jury

    The Court agrees with Defendants that this generic testimony will not be helpful to the jury considering the Plaintiff will have to prove specific and individual causation and damages at trial. As Defendants put it, “ a general opinion that KPT drywall emits gas and causes corrosion, without any correlation to the drywall or damage in Plaintiff’s property, is unhelpful and usurps the jury’s role as factfinder.” In conclusion, the potential to confuse or mislead the jury substantially outweighs the probative value of the generalized testimony.

    Shawn Macomber

    Defendants sought to exclude or at least limit the expert opinion and testimony of  Macomber, who is a certified Chinese drywall inspector. Macomber inspected Plaintiff’s former property and estimated the cost of remediating the property. According to Defendants, “Macomber’s opinions are not relevant or helpful to the trier of fact because of the application of the economic loss rule” and “Macomber’s inspection and remediation cost opinions are unreliable and speculative.”

    The Economic Loss Rule (ELR) is a legal doctrine that prevents parties from recovering economic loss in most tort actions unless the victim has also suffered personal injury or property damage.

    Because of the significant limitation on damages under the economic loss rule, Macomber’s opinions on the cost of remediation are irrelevant and unhelpful to the jury.

    Because of the significant limitation on damages under the economic loss rule, the Court held that Macomber’s opinions on the cost of remediation are irrelevant and unhelpful to the jury. As Defendants explain, “because Macomber’s report advances no opinion regarding damage to Plaintiff’s ‘other property,’ which is the only damage permitted pursuant to Florida’s economic loss rule, it provides no support for the damages Plaintiff may recover.”

    Defendants also sought to exclude Macomber’s opinions and testimony regarding the presence of Defendants’ drywall in Plaintiff’s former home or the causes of damage to that home. Since the alleged flaws Defendants identified as to Macomber’s inspection and identification of the drywall concerned the weight to be given to the opinions and testimony, the Court denied the motion.

    Held

    The Court granted in part and denied in part the Defendants’ motion to exclude or limit the expert testimony of Howard Ehrsam and Shawn Macomber to the extent discussed above.

    Key Takeaways:

    • Ehrsam cannot attach any degree of certainty to a finding that any uppercase KPT drywall impacted the property in question. In other words, a general opinion that KPT drywall emits gas and causes corrosion, without any correlation to the drywall or damage in Plaintiff’s property, is unhelpful.
    • Most of the damages Plaintiff seeks to qualify as economic damages are not recoverable in product liability tort claims. However, of these, only damages to ‘other property within the real property’ are recoverable. Macomber’s opinions on the cost of remediation were irrelevant and unhelpful to the jury

    Case Details:

    Case Caption: Helmick V. Knauf Gips Kg Et Al
    Docket Number: 8:21cv2777
    Court Name: United States District Court, Florida Middle
    Order Date: May 02, 2024