Plaintiff sued Defendants for their purported involvement in unlawfully accessing and disclosing confidential financial information pertaining to him, and to others similarly situated to him, in connection with a state court case against Plaintiff’s accountant. As part of the discovery in that case, which involved claims against the accountant for contractual breaches and related business torts, the State Court ordered the accountant to provide access to client records. Plaintiff thereafter filed this putative class action. Plaintiff’s motion for class certification was denied on July 20, 2026.
Plaintiff has disclosed Jeffery Stollman as an expert on the two statutes that Defendants are accused of violating in this case—the Electronic Communications Privacy Act (ECPA) and the Stored Communications Act (SCA)—as well as on damages.
Privacy Expert Witness
Jeffery P. Stollman is an identity and privacy expert with decades of experience in the technology and privacy fields. His educational background is also in those fields, as well as in economics
To begin with Stollman lacked sufficient familiarity with the ECPA and SCA to qualify him to offer legal opinions on these statutes. His deposition testimony indicated, for example, that before Plaintiff retained him for this case, Stollman had not read the statutes and did not know the good faith reliance defense applicable to them.
As to Stollman’s methods, he reviewed the operative pleading in this case and read the text of the statutes to arrive at his opinions as to how the complained-of misconduct amounted to violations of the ECPA and SCA, and he calculated damages based on general risks associated with the disclosure of personally identifiable information, such as the information that Plaintiff alleged Defendants unlawfully disclosed. The Court held that Stollman’s methods regarding the ECPA and SCA are unreliable because they amount to his ipse dixit.
As to helpfulness, Stollman concluded that Defendants violated the ECPA and the SCA, and that in general, damages from unlawfully disclosed information totaled approximately $5,905, although additional analysis aimed at increasing precision could “result in values significantly lower or significantly higher.” These conclusions are not helpful. Respecting the ECPA and SCA, an expert “may not . . . merely tell the jury what result to reach” and “may not testify to the legal implications of conduct” because “the Court must be the jury’s only source of law.”
Held
The Court granted Defendants’ motion to exclude Jeffery Stollman’s testimony.
Key Takeaway
Expert testimony will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments.
In December 2020, Diana Dyer “was surgically implanted with an Aris™ Trans-Obturator Sling System (hereinafter the ‘Aris’), a pelvic mesh product and medical device designed, manufactured, and marketed by Defendants,” which “was intended to treat pelvic organ prolapse and stress urinary incontinence.”
Dyer claimed that she “has suffered, and continues to suffer, debilitating injuries” “as a result of being surgically implanted with Defendants’ unreasonably dangerous defective pelvic mesh device.”
Dyer retained as a general and specific causation expert Dr. Neeraj Kohli, “an active surgeon, teacher, entrepreneur, inventor, lecturer, and researcher.” Coloplast sought to exclude the opinions of Kohli.
Gynecology Expert Witness
Dr. Neeraj Kohli is a board certified Ob/Gyn and fellowship trained urogynecologist practicing strictly in the field of Urogynecology and Reconstructive Pelvic Surgery since 1997.
Kohli has extensive experience with pelvic repair surgery of all types with and without biologic or synthetic materials.
Kohli offered the following general causation opinions: (1) the “inherent properties of polypropylene mesh make it an unsuitable material for placement in the transobturator space,” (2) the Aris is “defective in its technique and [its] material design,” (3) the Aris “has an unacceptably high rate of mesh exposure/erosion, dyspareunia, and chronic pain complications,” (4) the Aris’s IFU “and brochure warnings were inadequate to allow physicians to make responsible treatment choices and allow patients to give proper informed consent,” (5) Coloplast did not perform adequate safety testing on the Aris and failed to warn about known “complications related to transobturator mesh placement,” (6) there “are safer alternatives that are equally or more effective” than the Aris, and (7) the risks of the Aris outweigh its benefits.
As to specific causation, Kohli opined that the “vaginal/groin pain and persistent [overactive bladder]/incontinence suffered by Dyer is the direct result of the defects described throughout this report.”
Analysis
Coloplast challenged the reliability of Kohli’s specific causation opinions. Coloplast also argued that many of Kohli’s general causation opinions are unreliable, unhelpful, or irrelevant. Finally, Coloplast contended that the Court should exclude Kohli’s opinions “stating legal standards, conclusions, and terms of art, as well as opinions about Coloplast’s knowledge, state of mind, or conduct.”
A. Kohli’s Case-Specific Opinions
Coloplast argued that Kohli’s case-specific opinions are not reliable because he based his differential diagnosis on a cherry-picked selection of medical records and did not adequately rule out alternative possible causes of Dyer’s injuries. The Court is not persuaded.
Coloplast argued that Kohli’s specific causation opinions are unreliable because he: (1) failed to adequately consider medical records that did not support his opinion, (2) only reviewed the medical records provided to him by Dyer’s counsel, and (3) did not conduct a pelvic exam of Dyer. None of the alleged factual discrepancies or mischaracterizations warrant excluding Kohli’s opinions.
Coloplast also argued that Kohli’s differential diagnosis is unreliable because he did not adequately rule out alternative possible causes of Dyer’s injuries. The Court disagreed.
Kohli “ruled in the mesh as a primary cause because Dyer’s pelvic pain symptoms began . . .immediately after mesh implantation and are unique to mesh placement in the vagina and particularly the Aris” transobturator sling.” Kohli also noted that Dyer “has no significant medical, surgical, or social history or risk factors contributing to her present mesh complication symptoms or current pelvic floor complaints.”
Coloplast argued that Kohli failed to adequately rule out lumbar disc and sacroiliac joint issues, sciatica, and surgical positioning as being sources of Dyer’s pelvic pain. However, Kohli explained that he ruled out lumbar disc involvement as it typically would not cause the symptoms experienced by Dyer immediately following mesh implantation and as post-surgical therapies to the lumbar area were not effective. With respect to sacroiliac joint issues and sciatica, Coloplast did not challenge Kohli’s assertion that Dyer denied suffering from such problems prior to the mesh implantation.
As a result, the Court found Kohli’s methodology regarding the cause of Dyer’s pelvic pain sufficiently reliable.
B. Kohli’s General Causation Opinions
1. Surgical Technique
Kohli opined that the Aris “was defective in its technique and it[s] material design. This includes blind insertion of a permanent device through the transobturator space, through and in close proximity to vital anatomic structures including muscles and nerves.”
Coloplast argued that “Kohli’s criticisms about the Aris’ transobturator approach amount to no more than personal opinions on a particular surgical technique, which does not speak to a ‘defect’ in the Aris that resulted in injury,” and, therefore, are irrelevant. The Court disagreed.
A comparison of the risks associated with implanting in the transobturator region as opposed to the retropubic region is relevant to the defect analysis because the location of the device within the body and the method of insertion are inherent attributes of the device’s design. Accordingly, the Court held that Kohli’s opinions regarding the transobturator approach are not irrelevant.
Coloplast further argued that “Kohli’s blind placement opinion is also divorced from any scientifically reliable methodology.” The Court is not persuaded. Here, Coloplast has not demonstrated that there is too great an analytical gap between the studies Kohli cited and his opinion.
2. Defective Design
Kohli opined that “the inherent properties of polypropylene mesh make it an unsuitable material for placement in the transobturator space. . . . This is especially true of the Coloplast mesh given its increased weight and stiffness.”
Coloplast argued that the Court should exclude Kohli’s opinion that the Aris is defectively designed because “Kohli does not provide support for his opinions on Aris’ design properties or that the Aris is unsuitable for use in the transobturator space.” However, Kohli cited multiple scientific articles to support his opinions regarding the properties of polypropylene mesh and its unsuitability for use in the transobturator space. Accordingly, Coloplast has not demonstrated that Kohli’s opinions are unreliable.
Coloplast further argued that Kohli’s opinions are unhelpful to the jury because Kohli “fails to provide a measuring stick for assessing the propriety of Aris’s specifications, and instead advances a ‘trust me, I’m a doctor’ approach.”
To succeed on any of her claims, Dyer must prove that the Aris “is defective or unreasonably dangerous.” Kohli explained the basis for his opinion that the properties of polypropylene mesh make it unsuitable for use in the transobturator space and cites to multiple scientific studies.
Kohli’s opinion logically advances a material aspect of Dyer’s case: whether the Aris is defective or unreasonably dangerous. This information is “beyond the understanding of the average lay person.”
3. Unacceptably High Rate of Complications
Kohli opined that the Aris “has an unacceptably high rate of mesh exposure/erosion, dyspareunia, and chronic pain complications.”
Coloplast argued that Kohli’s opinion is unreliable because “Kohli identified no methodology (much less a reliable one) for determining what constitutes an acceptable versus ‘unacceptably high’ rate of complications.”
Kohli did not identify the alleged complication rate of the Aris or explain the scientific basis for his opinion that the Aris’ rate is “unacceptably high.” Accordingly, the Court found that Kohli’s opinion on this issue is unreliable and is excluded.
4. Safer Alternatives
Kohli opined that “the Burch procedure, autologous fascial slings, and appropriate retropubic slings are safer than the Aris.”
Coloplast argued that Kohli’s opinions regarding the Burch procedure and autologous fascial slings are irrelevant as they are not safer alternative product designs for a transobturator sling but are “entirely different surgeries.” The Court disagreed. Kohli’s opinions regarding safer alternative procedures are relevant to the question of whether the risks of the Aris outweigh the benefits.
Alternatively, Coloplast argued that Kohli’s opinions are unreliable. The Court is not persuaded.
Coloplast further argued that “Kohli’s ‘safer alternative’ opinions about polypropylene retropubic slings and PVDF mid-urethral slings are unreliable.” The Court disagreed.
Coloplast’s challenge to “the sufficiency of scientific literature on which” Kohli relies “is a matter that more properly goes to the weight of the evidence and can be probed during cross-examination.”
Coloplast also argued that Kohli’s opinions regarding PVDF mesh mid-urethral slings should be excluded because such slings are not available in the United States. Under Florida law, “a Plaintiff need not demonstrate the existence of a reasonable alternative design for a strict liability design defect claim.” Accordingly, the fact that PVDF mid-urethral slings were not available in the United States at the time of Dyer’s surgery did not render Kohli’s opinion irrelevant in this case.
The Court found that Kohli’s opinions on PVDF mid-urethral slings are relevant to the issue of whether “alternative safer designs exist.”
5. Inadequate Safety Testing
Kohli opined that Coloplast failed to perform adequate safety testing on the Aris. Coloplast argued that Kohli is unqualified to opine on the matter and, alternatively, that his opinion is unreliable.
Although Kohli is the chief medical officer of a medical device company, there is no indication that he has experience in testing medical devices. Accordingly, the Court found that Kohli is not qualified to testify as to the adequacy of Coloplast’s safety testing.
In any event, even if Kohli were qualified to opine on the adequacy of the safety testing, Kohli has not offered any support for his conclusory opinion that Coloplast “rushed to market with Aris to avoid loss of market share without adequate safety testing.”
6. Deficient IFU
Kohli opined that the Aris’ Instructions for Use (“IFU”) “were inadequate to allow physicians to make responsible treatment choices and allow patients to give proper informed consent.”
Coloplast argued that Kohli is not qualified to render an opinion on the IFU and, in any event, that Kohli has not provided any “basis for reaching the conclusion that the purported inadequacy of Aris’s IFU renders the device ‘not reasonably safe’ or makes it ‘impossible’ for implanting physicians to obtain informed consent.”
The Court found Kohli qualified to opine on the adequacy of the Aris’ IFU as, in addition to his surgical experience, Kohli “assists in the drafting and editing of IFUs” at a medical device company.
However, Kohli did not provide an adequate basis for, or a reliable methodology used, in reaching his conclusions that the inadequacy of the instructions and warnings renders Aris ‘not reasonably safe’ and made it ‘impossible’ to obtain informed consent.
7. Legal Conclusions, Summaries, and Opinions on Coloplast’s Knowledge, Intent, or State of Mind
Finally, Coloplast asked the Court to exclude Kohli’s opinions to the extent they contain impermissible legal conclusions, summaries, and speculation on Coloplast’s corporate intent, knowledge, or state of mind.
The Court held that Kohli will not be permitted to testify as to the knowledge, state of mind, or corporate intent of [Coloplast] or summarize corporate documents but will be allowed to testify as to his review of the corporate documents solely for the purpose of explaining the basis of his opinions. Kohli was also not precluded from offering testimony that uses terms that do not have a separate, distinct, and specialized meaning in the law.
Held
The Court granted in part and denied in part Defendant Coloplast Corp.’s motion to exclude the testimony of Neeraj Kohli, M.D.
Key Takeaway
Experience as a surgeon alone does not translate into experience with or knowledge about the appropriate testing a medical device manufacturer should undertake when preparing a product for the market.
Plaintiff Tabria Montgomery’s father, Michael Montgomery sustained fatal injuries while operating a Bobst Mastercut 145 PER 2.0 Die-Cutter machine. She asserted claims individually on behalf of herself and her father’s estate against Defendant Bobst Group North America, Inc. (“Bobst NA”) for strict products liability, negligence, wrongful death, and survival.
Bobst NA filed a motion to exclude the testimony of Plaintiff’s expert Wayne Ross, M.D., P.C.
Pathology Expert Witness
Wayne Kenneth Ross, M.D., P.C. is board-certified by both the National Board of Medical Examiners and the American Board of Pathology in Anatomic and Forensic Pathology. He maintains current medical licensure in Pennsylvania and has practiced continuously as a forensic pathologist for over three decades.
Throughout his career, he has conducted thousands of autopsies and death investigations involving traumatic injuries, gunshot wounds, blunt force trauma, and other violent deaths where assessing consciousness and pain perception at the time of injury is critical.
Bobst NA maintained that Ross used unreliable methods to reach his conclusion that Montgomery experienced sixty to ninety seconds of pain and suffering. The Court disagreed.
Bobst NA sought to exclude Ross’ opinion based on its argument that Ross did not examine scientific literature as required, and instead cherry-picked studies to support his causal connections. It focuses its criticism of Ross’ report on its references to “studies pertaining to strangulation and suffocation events in children, examinations of hangings, and studies detailing the areas of the brain associated with fear response.” Bobst NA explained that Ross did not address “either in his report or his deposition . . . why he believed that studies focusing on children and strangulation were more appropriate in his analysis than studies of adults and traumatic compression asphyxia injuries.”
While it is a close call, upon review, Ross’ opinion is not based only on “subjective belief or unsupported speculation.” While Bobst NA may disagree with the methods he used to reach his conclusions—formulating a hypothesis, analyzing available evidence and literature, and applying the principles of neuropathology—the methods used are enough to provide “good grounds” for his opinions under Rule 702.
B. Fit
Bobst NA also contended that Ross’ opinions did not “fit” the facts of this case, arguing that they “will not assist a jury” and “would only serve to cause confusion and misunderstanding.”
Plaintiff has shown that Ross’ opinions fit the case because they have a nexus to and will assist the jury with the questions that jurors will be required to consider when determining whether Plaintiff can recover for survival.
Held
The Court denied Bobst NA’s motion to exclude the testimony of Plaintiff’s expert Wayne Ross, M.D., P.C.
Key Takeaway
When determining whether to admit expert testimony or not, the test “is not whether a particular scientific opinion has the best foundation or whether it is demonstrably correct.” Any gap between Ross’ opinion and the information underlying it must be “extreme” and “clear” for it to be excluded as unreliable.
Please refer to the blog previously published about this case:
On August 27, 2020, Hurricane Laura made landfall in Southwest Louisiana. In the original complaint, The Pentecostal Church of DeQuincy (“TPCD”) alleged that it sustained damage from the Hurricane, and that Church Mutual has underestimated the cost of repairs. The five (5) buildings considered as “Covered Property” at issue in this litigation are identified as the: (1) Sanctuary, (2) Activity Center, (3) Sunday School/Fellowship Hall, (4) Mobile Home, and (5) Pole Barn. During the relevant time period, Church Mutual provided coverage for the Covered Property.
The Church reported its claimed loss on September 1, 2020. TPCD filed a motion to exclude the opinions of Lori Cox. TPCD maintained that Cox’s opinions will not assist the trier of fact, and they are unreliable and redundant.
To begin with, TPCD argued that Cox’s testimony did not rely on any recognized engineering methodology or engineering analysis, and that she ignored a plethora of evidence.
Engineering Expert Witness
Lori Lynn Cox is a licensed Professional Engineer with over 25 years of experience in forensic engineering, specializing in structural failures, construction defects, premises liability, and construction-related injury investigations. She is currently Regional Manager for Engineering Design & Testing Corp. She is also licensed in 35 states and has served as a Regional Director with ProNet Group, where she led complex investigations involving property loss, liability disputes, and building performance issues.
TPCD complained that Cox’s evaluation of the Sanctuary and Sunday School buildings was limited to a review of photographs and other engineers’ reports.
However, the Court has reviewed Cox’s expert report to address TPCD’s complaints and finds that they are unfounded. The Court noted that Cox performed a site inspection of the TPCD buildings/structures, but the Sanctuary and Sunday School had already been demolished and rebuilt.
Next, TPCD criticized Cox’s report because she allegedly did not give adequate evaluation of the pre-existing conditions of the buildings, referring to TPCD’s previous insurance claim as a result of the 2017 tornado. Again, the Court is confused as to what TPCD is complaining about.
After all, Cox acknowledged that there was a “fractured and bowed roof framing of the Sunday School [that] was documented following the 2017 tornado effect…. This was documented in the estimate provided by Risk Management Services.”
TPCD complained that Cox did not perform “any mathematical equations to determine the lateral loads that were presented to the building as a result of the hurricane.”
Again, TPCD did not explain how her methodology is inappropriate because she did not perform any engineering calculations.
TPCD also argued that Cox’s testimony and opinions are duplicative of Church Mutual’s principal expert. Church Mutual informed the Court that their expert’s work in this matter was to perform a limited visual inspection of the sanctuary, Sunday School and multipurpose building and recommend repairs/remediation of damages, whereas Cox was supposed to inspect the structures at issue and document their conditions with regards to improvements made following Hurricane Laura and/or Hurricane Delta. Church Mutual instructed Cox to provide an opinion as to the damage that was the result of Hurricane Laura.
Held
The Court denied TPCD’s motion to exclude the testimony of Lori Cox.
Key Takeaway
Rejection of expert testimony is the exception rather than the rule, and the court’s role as gatekeeper does not replace the traditional adversary system and the place of the jury within the system. Instead, 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.
Please refer to the blogs previously published about this case:
In this landlord-tenant dispute, Defendant Gator Flower Mound, LLC (“Gator”) asked the Court to exclude the damages testimony of Alan Someck, the expert witness designated by Plaintiff Arch & Eng, LLC (“Z Grill” or “Plaintiff”), as irrelevant and unreliable.
Z Grill alleged economic injury due to problems with the premises it leased from Gator, the landlord. In December 2003, Plaintiff’s and Gator’s predecessors entered into a lease for a commercial premises located at the Marketplace at Flower Mound shopping center (the “2003 Lease” for the “Premises”). On March 02, 2016, Gator and Plaintiff executed an Assignment and Assumption of Lease, through which Plaintiff became the tenant at, and occupied, the Premises (the “2016 Assignment”).
In 2019, despite Plaintiff having complained of problems with the Premises since 2016, Plaintiff elected to enter into a Third Amendment to Lease, extending the 2003 Lease through January 31, 2025. Plaintiff abandoned the Premises in or around January 2024, and brought suit that same month, alleging that roof leaks and an odor had persisted through the entirety of its tenancy, and had caused Plaintiff to suffer economic harm.
Hospitality Expert Witness
Alan Someck has decades of experience in the hospitality industry as an owner, operator, consultant, and teacher. He has also served as a full-time Management Instructor at the Institute of Culinary Education in New York City and previously served as an Adjunct Professor of Hospitality Management at the New York Institute of Technology.
In his expert report, Someck posits that the presence of bad odors in and around Defendant’s leased property contributed significantly to Plaintiff’s purported loss of profits and investment capital.
I. Lost Profits
Defendant raised two arguments against Someck’s interpretation of Plaintiff’s proposed lost profits damages. First, Defendant averred that the leasing agreement between the parties prohibited recovery of consequential lost profits, rendering Someck’s opinion on the subject irrelevant. Second, Defendant claimed that Someck failed to deduct actual profits from claimed lost profits, rendering his opinion unreliable.
The Court previously held that Plaintiff may potentially recover its lost profits under the Contract if it proves those profits are a “direct,” as opposed to a “consequential,” result of Defendant’s wrongful acts. The Court also held that Plaintiff may potentially recover its lost profits under certain tort causes of action. Thus, Someck’s opinion is not irrelevant on these grounds. On the contrary, Someck’s opinion will likely be crucial in helping Plaintiff carry its burden at trial.
Defendant’s second argument is unpersuasive, as its claim that “Someck fails to deduct actual profits from claimed lost profits” is directly countered by the fact that Someck has since revised and reduced the applicable projected profits by $150,730.00 “based on the correct assumption . . . that actual profits needed to be subtracted from projected profits to get the corrected lost profits.” Because Someck has fixed the alleged “foundational flaw” in his methodology, the Court found that Someck’s testimony on Plaintiff’s recovery for lost profits is not unreliable.
II. Lost Investments
Defendant argued that Someck’s proposed testimony on Plaintiff’s “lost investments” should be excluded because of its irrelevance and unreliability.
Defendant argued that Someck has failed to connect any damage amount to any act or omission taken by Defendant and has instead merely combined all of Plaintiff’s business expenses over the years and offered it as proof of “lost investments.” The Court agreed, and found that Someck’s opinion on “lost investments” is impermissibly general under the facts of this case.
Someck did not offer any reasoning or methodology to explain how his definition of lost investments constitutes a compensable injury as opposed to an unrelated expense. Nor did Someck offer insight as to the source of these expenses. For instance, he did not identify which portions of the “lost investments” arose as a pecuniary loss from Defendant’s alleged negligent misrepresentation as opposed to Defendant’s alleged fraudulent inducement.
Second, Someck’s opinion is unreliable. Defendant has argued and provided sufficient evidence that Plaintiff’s “lost investment” damages constitute an impermissible attempt to recover for expenses borne by third parties. Someck’s testimony simply does not permit the Court to accurately distinguish between injuries incurred by Plaintiff and the injuries incurred by illusory “plaintiffs.” Neither Someck nor Plaintiff have clarified their interpretation of “lost investment” damages on this issue.
The Court excluded Someck’s expert opinion testimony as to Plaintiff’s lost investments.
Held
The Court granted in part and denied in part Defendant Gator Flower Mound, LLC’s motion to exclude the testimony of Alan Someck.
Key Takeaway
Relevance depends upon whether the expert’s reasoning or methodology properly can be applied to the facts in issue. The Court does not need help to add up numbers on a page. As a result, Someck’s bare assumption, combined with a receipt of gross expenses, is not sufficiently relevant to render his opinion admissible at trial.
Plaintiff Casey A. Drake sued the Defendants Crete Carrier Corporation and Reuben Robert Shaffer for personal injuries arising from a vehicle collision. Drake was riding in a car driven by his niece, Erica Diehl. Shaffer was driving a tractor-trailer. As the two drivers passed a wrecked vehicle, they collided.
Drake retained Robert Kelly and Jack Leifer as experts to testify that Shaffer caused the collision. The Defendants filed motions to exclude their testimony.
Transportation Expert Witness
Robert P. Kelly was a police officer for ten years. During that time, he investigated more than 300 collisions involving commercial vehicles. He has certifications specific to traffic enforcement and is certified as a driving instructor for commercial vehicles.
Jack Leifer is a mechanical engineer who has taught university courses relating to dynamics, kinematics, and statics and has published multiple works related to the relationships between impacts and force.
He is an affiliate of the Society of Accident Reconstructionists and a member of the Texas Association of Accident Reconstruction Specialists. Leifer is responsible for numerous publications and presentations about topics related to accident reconstruction, and he has participated in continuing education courses dedicated to accident reconstruction.
The Defendants argued that Kelly is not qualified to opine on the cause of the collision because he is not an accident reconstructionist.
A police officer may testify about the cause of a traffic accident if he has sufficient skill and knowledge. As a result, the Court held that Kelly has sufficient experience working with commercial vehicles and investigating collisions involving them to opine on the cause of the collision at issue here.
B. Reliability
The Defendants also argued that Kelly’s testimony would be unreliable because he based his opinion solely on two photographs and did not visit the accident scene, conduct any interviews, or take any measurements.
Kelly based that opinion on his review of footage recorded by a responding police officer’s body camera, two frames of which are reproduced in his report. Those frames appear to show the hood and front tires of the disabled vehicle extending into the right lane over the dashed white line that divides the road. Kelly also reviewed the responding officer’s crash report, which repeated Diehl’s claim that Shaffer moved from the right lane into the right-hand shoulder and struck her car.
Whether a vehicle has space to maneuver is the kind of determination an expert can make based on his review of photographs and videos alone. By reviewing the images available here, Kelly could see the amount of unobstructed space in the right lane of traffic and, applying his knowledge, determine whether or not a tractor-trailer would be able to safely traverse the lane without moving into the shoulder.
C. Irrelevance of Crete’s conduct
Kelly also stated his opinions about Crete’s hiring of Shaffer, Shaffer’s qualifications, whether Crete kept adequate records, and whether Shaffer was adequately trained. The Defendants challenged those opinions as unreliable and as irrelevant to the central issue of causation. Drake did not assert a direct negligence claim against Crete. He sought to hold Crete vicariously liable for Shaffer’s alleged negligence at the time of the collision.
Whether Shaffer was qualified, whether Crete kept adequate records, and whether Shaffer was adequately trained do not bear on whether Shaffer was negligent at that time. Evidence that has no tendency to make a material fact more or less probable is not admissible. As such, the Court excluded Kelly’s opinions about hiring, qualifications, record keeping, and training.
Jack Leifer
A. Qualification
The Defendants argued that Leifer, like Kelly, is not qualified to opine on the cause of the collision because he is not an accident reconstructionist.
His report discusses, based on the damage to Diehl’s car and the conditions of the roadway, the forces that likely applied to the vehicles and the relative speeds that would probably have generated those forces.
Leifer’s observations are based in physics, and his CV reflects substantial knowledge and experience in the relevant scientific fields. The Court held that he is well-qualified to opine and reasonably apply his observations to the facts of this case.
B. Reliability
The Defendants made three arguments that Leifer’s methods and data are unreliable. First, they asserted that Leifer relied on a scientific study that is old and distinguishable from the facts of this case. Second, they argued that, during his deposition, Leifer could not “state with certainty” how the collision occurred. Finally, they noted that Leifer could also not initially state at his deposition what source supported his opinion that lanes of traffic are generally 11–12 feet wide.
Analysis
As to the first argument, both the study Leifer relies on and his own opinion are grounded in physics. The laws of physics operated the same way in 2002, when the challenged study was published, as they did when the collision at issue here occurred.
As to the second argument, Leifer testified that the collision might have occurred in one of three ways: Shaffer’s tractor-trailer was moving to the right, Diehl’s car was straddling the fog line, or Diehl was moving to the left. Although Leifer conceded that any of those three scenarios was possible, he testified that it is most likely that Shaffer was moving to the right at the time of the collision. That opinion was based on his opinions that Shaffer’s vehicle was likely moving faster than Diehl’s and that it would have been unsafe for Shaffer to drive straight through the right lane without moving to the shoulder.
As to the Defendants’ final argument, Leifer’s inability to recite, on the spot during his deposition, a source stating that traffic lanes are generally 11–12 feet wide did not impugn his report’s validity. Leifer testified that he used the standard width of a traffic lane to calculate an approximate location of the collision. Although he also testified that traffic lanes are generally 11–12 feet wide, that figure does not appear in his report.
It would be unreasonable to deem his testimony unreliable just because he had not memorized the citation for a figure, particularly one that did not appear in his report.
Held
The Court granted in part and denied in part the motion to exclude Robert Kelly’s testimony and denied the motion to exclude Jack Leifer’s testimony.
Key Takeaway
As with an expert’s qualifications, whether an expert’s methodology is reliable depends on the particular circumstances of each case. Reviewing photographs, especially where, as here, that review is bolstered by other materials, is not necessarily an unreliable method. In appropriate circumstances, photographs can provide sufficient information for an expert to apply his knowledge and experience and form an opinion.
This litigation arises from Plaintiff Raymond Flanks’ (“Plaintiff”) wrongful conviction for first-degree murder in 1985. Plaintiff alleged that the Orleans Parish District Attorney’s Office (“OPDA”) secured his wrongful conviction in violation of his constitutional rights by withholding material exculpatory evidence.
Brandy Bradley is a vocational evaluator retained by Plaintiff to estimate the earnings he lost while incarcerated. Defendants contended that Bradley’s proposed testimony is unreliable and irrelevant.
Vocational Evaluation and Rehabilitation Expert Witness
Brandy E. Bradley is a rehabilitation counselor licensed by the State of Louisiana. She is also a certified life care planner and certified vocational evaluator; and she is a vocational expert for the Department of Health and Human Resources, Social Security Administration, and Office of Disability Adjudication and Review. She holds an undergraduate degree in psychology, a graduate degree in rehabilitation counseling, and a post-graduate certification in life care planning.
Based on Plaintiff’s education during his incarceration and his post-incarceration vocational testing scores, Bradley opined that Plaintiff “could have established a career path had he not been incarcerated.”
Bradley assumed that had Plaintiff not been convicted of first-degree murder in 1985, he would have been released on parole in 1991, after serving half of his fifteen-year sentence for a separate armed robbery conviction. Bradley concluded that Plaintiff “had the potential to earn” wages equal to the annual mean wage for Black males with GEDs/high school diplomas from 1991 to 2022.
Bradly provided two alternative lost earning capacity calculations––$393,692.00 if Plaintiff had earned minimum wage from 1991 through 2022 or $975,578.00 if Plaintiff had earned the annual mean wage for a Black male with a GED or high school diploma.
Defendants’ Arguments in Support of the Motion
Defendants argued that it is not reasonable to assume that the Plaintiff would have maintained continuous, full-time employment at any wage, absent evidence that the Plaintiff had obtained and maintained such employment before the injury complained of in his lawsuit.
Next, Defendants argued that the calculation of lost wages is unreliable because it does not deduct the expenses Plaintiff would have incurred had he not been out of prison earning minimum wage.
Finally, Defendants argued that the calculation of lost wages is unreliable and irrelevant because it is based on the unreliable premise that Plaintiff would have been released on good time parole after serving 7.5 years in prison for the armed robbery conviction.
Analysis
The Court held that Plaintiff should be free to make an argument to the jury that he could have earned more than his pre-incarceration income suggests.
Presumably, Defendants will present testimony to show that Plaintiff would have earned even less than $393,692.00, because he was not earning minimum wage at the time of his incarceration. Defendants can question Bradley on this issue, and they are free to present evidence showing how much Plaintiff earned in the years preceding his incarceration. If the jury finds for Plaintiff on liability, it will then be for the jury to decide how much Plaintiff would have earned had he not been wrongfully incarcerated.
Consistent with prior cases on this issue, the Court will require Bradley to amend the report to reduce the lost wages/benefits numbers to account for expenses that Plaintiff would have sustained had he been out of prison.
Finally, Defendants contended that Bradley’s testimony should be excluded because it is based on the incorrect premise that Plaintiff would have been released from prison in 1991 on the armed robbery conviction.
The Court will instruct the jury on the applicable law regarding “good time” release. If the jury finds for Plaintiff on liability, it will then be tasked with the factual determination on when Plaintiff would have been released from prison absent the allegedly wrongful conviction. Based on that determination, the jury will then decide how much income Plaintiff lost from the time he would have been released until his actual release in 2022. This is not a basis for exclusion of Bradley’s testimony.
Held
The Court denied the Defendants’ motion to exclude the testimony of Brandy Bradley.
Key Takeaway:
The Defendants have not shown that Bradley’s opinions were so irrelevant and unreliable as to require exclusion pursuant to the Court’s gatekeeping obligation under Daubert and its progeny.
It all started when the Plaintiffs, Lance and Kevin McCulloch, purchased Chandler Gas and Store on May 27, 2021. They alleged that the Marathon’s mandated point-of-sale, back-office management system, and computer system (collectively, the “Required Operations System’), which controlled both the gas pumps and registers in the C-store, frequently malfunctioned.
The Plaintiffs claimed that they have lost profit in several areas due to the malfunctioning of the Marathon operations system.
Both sides filed expert-exclusion motions: Chandler Gas filed a motion to exclude the opinions of John Umbeck and Marathon filed a motion to exclude the opinions of Max McDevitt.
Economics Expert Witnesses
John R. Umbeck is a professor of economics at Purdue University who has more than 40 years of experience researching the petroleum industry and the marketing of petroleum products.
Max J. McDevitt is an economist at the consulting firm, The Fontana Group, Inc., and has “assisted with” over two dozen cases related to franchisee issues, generally in the automotive industry. He has a doctorate in economics from Boston University.
Umbeck explained that he was retained by Marathon to determine whether Chandler Gas was profitable and the amount of damages the business might have incurred due to the alleged point-of-sale problems. Based on his review of “all of the available information,” Umbeck drew eight “conclusions,” which the Court will treat as the opinions Umbeck hopes to offer at trial:
The Chandler station was profitable when operated by Prima Investments.
The Chandler station was profitable when operated by the McCullochs.
The financial data shows no evidence of any significant financial harm to the station during the time of the alleged failure of the operating system.
The actual computer problems, using Verifone data, shows no evidence of any significant loss of gasoline sales.
The customer reviews show no evidence of customers being upset about any inconvenience caused by the computer problems.
Based on opinions 3–5, the alleged failure of the operating system would have no significant negative impact on the expected future revenues or the market value of the business when sold.
The business experienced a significant decrease in the volume of fuel it sold, compared to the sales when operated by Prima. However, these lost fuel sales were caused by the new retail pricing policy implemented by the McCullochs and not the alleged problems with the operating system.
Any loss in value the business might have incurred during this time period was caused by the Plaintiffs.
b. Analysis
Opinions 1 and 2 Regarding Profitability
Chandler Gas argued Umbeck’s first two opinions should be excluded because they are not relevant.
Those opinions addressed the profitability of the station under its prior owner (Prima) and then after Chandler Gas took over. Chandler Gas claimed hundreds of thousands of dollars in damages based on alleged lost sales volume. Umbeck’s opinion that the station was profitable during the relevant period and that observed volume declines were more consistent with pricing decisions than computer outages bore directly on causation and damages.
Evidence of profitability is relevant because it provides economic context against which the jury can assess the plausibility and magnitude of Chandler Gas’s claimed losses. A central issue to this case is whether any alleged operating system outages actually caused a measurable financial impact. Evidence showing the operations before Chandler Gas assumed control and that the business remained profitable during the relevant period will assist the jury in understanding the evidence or determining a fact in issue. And although profitability alone does not disprove damages, it is probative of whether the alleged operating system issues caused significant economic harm, and the weight to be given to that evidence is a matter for the jury, not a basis for exclusion.
The Court found that Umbeck’s testimony provided relevant background and probative evidence that may assist the jury in evaluating the scale of Chandler Gas’ claimed damages.
Opinions 3 and 4 Regarding Operating System Failures
Chandler Gas contended that Umbeck failed to consider relevant evidence about the frequency and severity of operating system failures or outages, making his opinions unreliable.
To determine the impact the operating system had on sales, Umbeck looked exclusively to “a Verifone log” that included 75 problems each assigned a unique case number. He did not explain why he only looked at Verifone logs and did not consider other sources that could have demonstrated system outages.
The majority of Verifone problems were, according to Umbeck, “resolved in 5 minutes or less.” Apparently based solely on his personal experience with computer problems, Umbeck contended that customers did not leave a station and go elsewhere if a problem can be resolved within five minutes. Umbeck provided no evidentiary basis for this five-minute view of consumer behavior. Umbeck then identified the problems that “took more than 15 minutes to resolve.”
As a result, the Court refused to admit Umbeck’s opinions based on his “analysis of the actual computer problems.”
Even if Umbeck were qualified to analyze computer problems—which he is not—he has neither demonstrated any expertise in consumer behavior nor provided a basis for his assumption that a delay of less than five minutes would have no effect.
Finally, Umbeck seemed to expect the Court and factfinders to draw meaningful conclusions from a chart containing gross fuel sales revenue, C-store revenue, and total sales revenue. Umbeck presented a chart with these figures and blankly states “the table shows no significant decline in revenues from fuel sales or store sales.”
Yet there is zero explanation or analysis to show why differences the chart shows in revenue should be considered insignificant. Umbeck thus provided no reliable reasoning supporting his conclusion that no significant loss of revenues occurred over the relevant time period.
Opinion 5 Regarding Customer Reviews
Umbeck obtained 36 customer reviews through Google Maps from the relevant period and concluded that there is no evidence of customers being upset about the computer problems, and thus “no evidence of a significant loss of business due to the alleged computer problems.”
The Court found that Umbeck’s conclusion did not meet the Daubertstandard. Even assuming the accuracy of the customer reviews, the Court determined that Umbeck had provided no reliable method for extrapolating economic harm from qualitative anecdotal feedback. His methodology appeared to consist of reviewing a relatively arbitrary collection of consumer reviews of Chandler Gas, and nothing more. The Court further found that nothing in Umbeck’s background qualified him to perform a qualitative analysis of customer reviews obtained through his own unexplained research on Google Maps.
Opinion 6
Opinion 6 relied entirely on excluded Opinions 3 through 5, and therefore depends on unreliable and inadmissible testimony. Although inadmissible evidence may be considered in formulating expert opinions, Umbeck may not rely on evidence that itself is unreliable.
Umbeck’s conclusion depends substantially on Opinions 3-5, which have been excluded as methodologically unreliable. Because the foundation for Opinion 6 is unreliable and that opinion is otherwise broad and unsupported by independent valuation methodology, the Court excluded it.
Opinion 7 Regarding the Causation of Lost Profits
Umbeck’s opinion 7 concluded that any decrease in fuel sales volume during the relevant period was caused by Chandler Gas’s pricing decisions and not the alleged operating system failures. Chandler Gas argued that this opinion—which is based primarily on price differentials between Chandler Gas and the nearby Circle K station—should be excluded because it is “flawed and unreliable” and prejudicial.
To provide support for Opinion 7, Umbeck used data on the station’s average monthly retail prices before, during, and after Chandler Gas’s ownership. Umbeck first compared Chandler Gas’s prices with those of its eight closest competitors, which seems to show nearly identical pricing between 2018 and 2024. But then Umbeck provided stronger support for his conclusions. He demonstrated a gradual decline in monthly average gasoline sales for Chandler Gas and a gradual increase in the differential between the retail price offered by Chandler Gas and the wholesale price at which it purchased the gasoline.
Finally, Umbeck compared the monthly price of Chandler Gas with a competitor Circle K station just under one mile away. Umbeck’s data showed that Chandler Gas’s average monthly retail price was often a few cents below Circle K’s price for the last half of 2021, but several cents higher than Circle K’s in 2022 (and even up to more than fifteen cents higher in November 2022). In the same chart, Umbeck also showed a mostly-gradual decline in the average monthly volume of gasoline sold by Chandler Gas.
From this data, Umbeck concluded the retail prices set by Chandler Gas—and not the computer problems—caused the volume of gasoline sales to drop. This testimony is relevant to causation and damages because it offers an alternative explanation for the decline in sales volume, which is a key contested issue in the case.
Opinion 8 Regarding Plaintiffs Having Caused All Loss in Value
Umbeck’s opinion 8 stated that “any loss in value the business might have incurred during this time period was caused by the Plaintiffs.”
Unlike Umbeck’s pricing analysis in opinion 7, Umbeck did not identify a valuation methodology or provide an evidentiary basis for this opinion. Umbeck did not perform a discounted cash flow analysis, comparable sales analysis, or any other recognized valuation technique. Nor did he provide an economic model linking the alleged causes (e.g., pricing decisions) to any measurable diminution in business value. In fact, Umbeck’s report included essentially no discussion or reasoning to support this opinion; there was not a single sentence about the business value or how Chandler Gas might have caused any loss in value.
The Court found this opinion too unreliable to satisfy the necessary standard because it did not have an adequate analytical or methodological basis.
Rebuttal Report
Chandler Gas also objected to portions of Umbeck’s rebuttal report, arguing that Umbeck impermissibly exceeded the scope of proper rebuttal. Accordingly, the Court declared that Umbeck would be permitted to offer rebuttal testimony only to the extent it directly responded to or contradicted McDevitt’s opinions.
II. Marathon’s Motion to Exclude McDevitt
McDevitt intended to introduce the following opinions at trial:
Chandler Gas lost an estimated 907,708 gallons of fuel sales between June 2021 and July 2024
Chandler Gas lost an estimated $1,731,972 in C-Store sales between June 2021 and July 2024
Chandler Gas lost an estimated $333,040 in fuel profits between June 2021 and July 2024
Chandler Gas lost an estimated $388,532 in C-Store profits between June 2021 and July 2024
Chandler Gas lost an estimated $721,572 in total profits (combined fuel and CStore) between June 2021 and July 2024
Chandler Gas’s estimated loss of value on the sale of business assets was $784,604
b. Analysis
Marathon challenged McDevitt’s qualifications on the basis he lacked specialized experience in retail gasoline markets and the petroleum industry.
However, the Court found that McDevitt is not going beyond his specialized field of applied economics. Though he did not appear to have extensive experience in the petroleum industry, he did have the necessary background to conduct damages modeling and offer opinions on lost profits, sales, and value.
Marathon also challenged McDevitt’s methodology. Marathon contended that McDevitt’s damages opinions were based on biased assumptions, particularly that all lost sales were caused by operating system glitches rather than price increases or competition. The Court found, however, that McDevitt’s clearly stated assumptions did not extend into territory that would warrant excluding his testimony. McDevitt had reviewed historical data, incorporated alternative pricing scenarios, and based his damage calculations on the station’s actual financial records.
The record indicated at least some basis for McDevitt’s assumptions that the operating system malfunctions resulted in declined sales and values.
Marathon further asserted that McDevitt ignored basic principles of economics like the law of demand. Though Marathon may contend that McDevitt’s analyses were flawed because Chandler Gas raised its prices above competitors, this argument did not render McDevitt’s testimony inadmissible. He did not rely on unsupported speculation and the fact that he did not conduct independent causation analysis is no issue.
Lastly, Marathon argued that McDevitt’s opinions should be excluded because the opinions would mislead the jury and cause unfair prejudice.
The Court held that McDevitt’s calculation of damages has probative value given the issues at hand, and any risk of prejudice or confusion can be mitigated through cross-examination, the presentation of Umbeck’s competing analysis, and appropriate jury instructions.
Held
The Court granted in part and denied in part Chandler Gas’ motion to exclude the opinions of John Umbeck.
The Court denied Marathon’s motion to exclude the opinions of Max McDevitt.
Key Takeaway:
Expert testimony that helps the jury evaluate competing causal explanations for damages claims is within the scope of Rule 702.
Economic experts like Umbeck may rely on historical price data and market comparisons to form opinions about the effect of pricing on sales. Here, Umbeck presents data showing evidence of patterns between price changes and volume shifts. Since the analysis is informed by Umbeck’s background as an economist and relevant experience within the petroleum industry, it sufficiently satisfies the Daubert standard.
Case Details:
Case Caption:
Chandler Gas & Store Inc. V. Treasure Franchise Co. LLC
Docket Number:
2:23cv400
Court Name:
United States District Court for the District of Arizona
This case arises under the Trafficking Victims Protection Reauthorization Act (TVPRA), which provides victims of sex trafficking a civil remedy against the perpetrators and beneficiaries of their trafficking.
Plaintiff Doe (C.L.F.) filed this action to recover for alleged harm she experienced from being trafficked at a Motel 6 in Wichita, Kansas, that she claims was owned and operated by the Defendants.
Defendant Kisan, Inc. filed a motion to exclude the testimony of Dr. Katy Fowler Sutton, one of C.L.F.’s designated expert witnesses.
Psychology Expert Witness
Kathryn Fowler Sutton graduated with a Master of Science in Clinical Psychology and in 2004 received her Doctor of Clinical Psychology (PsyD). She has been a Licensed Specialist in School Psychology (Texas) since 2005 and a Licensed Clinical Psychologist (Texas) since 2006. In her twenty years of clinical practice, approximately 15% of her patients have been survivors of sex trafficking. As part of her annual license renewal requirements, she has to complete mandatory training in human trafficking.
She also has fourteen years of experience being an expert witness and has never before been struck. In addition to being an expert witness, she also currently continues to see patients, some of whom are sex trafficking survivors.
Kisan and the G6 Defendants sought to exclude Sutton’s opinions that
(1) C.L.F. meets the criteria of Post-Traumatic Stress Disorder (PTSD) and other specified trauma-and-stressor-related disorders; and
(2) C.L.F.’s PTSD is caused by her having been sex-trafficked rather than any other previous traumatic experiences.
Defendants claimed that these opinions should be excluded because they are both irrelevant and unreliable.
A. Relevance
Defendants argued that the testimony of Sutton is inadmissible because it is irrelevant.
According to Defendants, the fatal flaw in Sutton’s report is that “the word ‘motel’ does not appear.” Worse yet, the report stated that C.L.F.’s alleged trafficking was “facilitated by social media platforms.” In this case, the alleged trafficking occurred only at motels owned and operated by Defendants, and C.L.F. “met her trafficker at a gas station,” not on social media. This might be problematic as expert testimony must be connected to “the facts of the case.”
While a report based on social-media-facilitated sex trafficking at no specific locations may not be tied to the facts of this case, Sutton’s report is. Sutton interviewed C.L.F. for 5 hours and 12 minutes. During that time, Sutton and C.L.F. discussed C.L.F.’s early life in detail, C.L.F.’s experiences during the alleged trafficking, and C.L.F.’s recovery in recent years. They specifically talked about her “thoughts and feelings” associated with the alleged trafficking, and Sutton collected enough information to provide diagnoses of and recommended treatments to C.L.F.
Further, in her deposition Sutton explicitly confirmed that she tied her interview with C.L.F. to the facts of this case. Sutton used the complaint during the interview to “refer specifically to the incident[s] in question” at the motels in issue. When asked if they discussed the relevant motels “where [C.L.F.] had a traumatic experience,” Sutton responded: “Yes.” During the interview, Sutton ensured to “very specifically explain to C.L.F. what events [she was] referring to.” In the Court’s view, Sutton’s methodology was “sufficiently tied to the facts of the case.”
The Court held that her testimony was relevant under Rule 702.
B. Reliability
Defendants asserted that the two opinions they want stricken should be excluded because they are unreliable. To Defendants, Sutton’s opinions are not the product of a reliable methodology and do not reflect a reliable application of psychology to the facts of the case.
1. Sutton’s Diagnosis of C.L.F.’s PTSD and Other Trauma Disorders
Defendants objected to Sutton’s opinion that C.L.F. met the criteria for PTSD and other specified trauma-and-stressor-related disorders.
First, Defendants argued that Sutton’s diagnosis is unreliable because she “did not follow accepted medical practice in selecting or administering tests” for PTSD in her interview of C.L.F.
The Court understood Defendants’ stance, but ultimately their attacks are best left for “[v]igorous cross-examination.” To admit Sutton’s testimony, C.L.F. “need not prove to th[is court] that the expert’s testimony is correct;” she simply must “prove by a preponderance of the evidence that the testimony is reliable.” Even with its alleged flaws, Sutton’s opinion that C.L.F. met the criteria for PTSD is reliable by a preponderance of the evidence.
Defendants also found fault with Sutton’s administration of the CAPS-5, specifically her failure to use the Life Events Checklist (LEC-5) during CAPS-5 Step 1. They said that because Sutton did not use the LEC-5 for the Step 1 inquiry, her opinions are unreliable to the point of inadmissibility. But CAPS-5 allows the practitioner to administer the LEC-5 or some “other structured trauma screen” to begin. Sutton’s report, as noted, details information about C.L.F.’s history of trauma gleaned from the hours-long interview Sutton conducted of C.L.F., which in the Court’s view qualifies as a structured trauma screen.
Second, Defendants argued that Sutton’s diagnosis of C.L.F. with PTSD is unreliable because Sutton’s conclusion contains conflicting diagnoses. However, the Court did not accept that Sutton’s “conflicting diagnoses” are so unreliable that they defy the “methods and procedures of science.”
2. Sutton’s opinion that sex-trafficking, not other traumatic experiences, caused C.L.F.’s PTSD
Defendants took issue with Sutton’s opinion that C.L.F.’s “history of trafficking,” not any of her other previous traumatic experiences, caused her PTSD.
As Sutton noted in her report (and as Defendants state in their motion), the stressors with potential to cause PTSD for C.L.F. other than her trafficking experiences are the death of her grandmother, her placement in foster care, the incarceration of her first child’s father, her abusive relationship circa 2020, and apparent substance abuse. Defendants claimed that Sutton only ruled out C.L.F.’s grandmother’s death and her placement in foster care before declaring that C.L.F.’s trafficking experiences were the sole cause of her PTSD. Sutton certainly did rule those stressors out; she concluded “within a reasonable degree of scientific certainty” that C.L.F.’s PTSD responses are associated with her history of trafficking, not the “grief” she experienced from her grandmother’s death or foster care.
Now Sutton did not explicitly rule out all potential causes, but her report evidences that she was aware of these other stressors when opining on the cause of C.L.F.’s PTSD. While the Court felt that Sutton should improve her recordkeeping and notetaking as it pertains to conducting diagnoses for litigation, her extensive experience with evaluations, her five-hour interaction with C.L.F., her deposition testimony, and the conclusions in her report all favor reliability here.
C. Scope
Though Sutton can testify as to her opinion that C.L.F.’s PTSD was caused by the trafficking-related trauma discussed during the evaluation, the Defendants pointed out that Sutton may not characterize any incidents C.L.F. experienced as “sex trafficking.” Sutton’s report and testimony is rife with her calling the incidents C.L.F. discussed “sex-trafficking.” The Court agreed. Defendants are right to point out that Sutton is not permitted to opine on ultimate legal issues.
In other words, Sutton may provide her opinion that C.L.F. suffers from PTSD and other trauma disorders, and she may provide her opinion as to what caused C.L.F.’s PTSD. But in describing these causes, she must keep her descriptions within certain limitations.
Held
The Court denied in part the Defendant Kisan, Inc.’s motion to exclude the proposed testimony of Plaintiff’s expert Dr. Kathryn Sutton.
Key Takeaway:
Sutton is free to discuss the trauma-causing incidents concerning C.L.F., but only in permissible ways. The Court is aware that these incidents necessarily involve sex or even commercial sex, but the testimony is permissible so long as it does not characterize any experiences or incidents as sex trafficking or trafficking.
Robert I. Toussie alleged that he and his brother Michael entered into an agreement (the “Participation Agreement”) with Coastal Development, LLC (“Coastal”), an entity run by Richard Fields in 2000 to finance the development of casinos in Florida. However, Coastal/Fields promptly, and repeatedly, breached the terms of the Participation Agreement by not paying the Toussies their share of distributions from the casinos. In the early 2000s, the Toussies hired Williams & Connelly, LLP, Joseph G. Petrosinelli, David A. Forkner, Jonathan E. Pahl (“W&C Defendants”) to sue Coastal and Fields and recoup their participation interest.
In the early 2000s, the Toussies sued Coastal/Fields twice to recoup the missed payments, and, represented by W&C, successfully recovered more than $37 million—over ten times the Toussies’ initial investment.
In 2015, Coastal/Fields again stopped making payments owed to the Toussies, and W&C again sued Coastal/Fields on their behalf (the “2015 Coastal/Fields Litigation”), this time winning the Toussies a roughly $7.5 million arbitral award (the “Award”).
The Toussies confronted a choice of either accepting the proposed settlement or converting the $7.5 million arbitral award to a judgment and pursuing its enforcement. Defendants advised the Toussies on how to proceed with this choice, and the Toussies chose to pursue conversion and enforcement of the arbitral award rather than settle the Coastal Litigation.
Defendants’ advice and counsel in that regard is of what Plaintiff now complains as legal malpractice.
To prove his malpractice claim, Plaintiff proffered Professor Ronald J. Colombo as an expert “in the field of legal ethics and the practice of law.” However, Defendants filed motions to exclude Colombo from testifying at trial.
Law And Legal Expert Witness
Ronald J. Colombo developed his expertise through his legal education at New York University Law School, his practical experience as an associate at Sullivan & Cromwell and then as in-house counsel at Morgan Stanley & Co. Inc., and through his scholarly work as a law professor at the Maurice A. Deane School of Law at Hofstra University (“Hofstra Law”).
Colombo has taught several courses at Hofstra Law, served as a faculty advisor to student organizations and academic programs for students desiring to concentrate in business law, and published at least fifteen law review articles, two books, and contributed to at least two other books.
He has as a member of the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York in the past. His most recent law review article is Duties Regarding Duties.
W&C Defendants, Colombo argued, fell short of the rules of the New York Rules of Professional Conduct in three ways: (1) Defendants did not conduct themselves with the ordinary and reasonable skill and knowledge commonly possessed by a member of the legal profession in undertaking their representation of Plaintiff (2) failing to properly advise Plaintiff on the consequences of pursuing a strategy of judgment enforcement against Fields and Coastal rather than accepting a settlement offer and (3) terminating W&C’s representation without proper notice.
Defendants argued that Colombo is not qualified because he has never held himself out as an expert in the practice of law or taught a legal ethics class, did not have a specialized education in legal ethics, and failed to demonstrate mastery of New York’s ethical rules in his own report. Defendants then argued that Colombo’s opinions are unreliable because they are unmoored from the underlying record, employ speculation, and misinterpret legal ethics opinions. Defendants lastly argued that Colombo’s opinions on W&C Defendants “engagement and withdrawal” are irrelevant because Plaintiff never alleged such harms in any of his complaints nor that such harms caused any damages.
I.Colombo Is Not A Legal Ethics Expert
Defendants argued that Colombo (1) lacks relevant experience, (2) lacks relevant education or training, (3) has too limited ethics-related experience, and (4) lacks relevant knowledge of the ethical rules themselves, and therefore is not qualified to testify as an expert in legal ethics. The Court agreed.
Colombo did not meet the requirements to be qualified as a legal ethics expert. His education, training, and practical experience all failed to distinguish him from other lawyers who only possess a general knowledge of legal ethics. First, Colombo is not a legal ethics expert by means of education or training. One professional responsibility course, one training for law firm associates, one training for FINRA arbitrators, and a three-year members on a local bar ethics committee constitute Colombo’s education and training in legal ethics. This is insufficient to qualify one as an expert. Plaintiff failed to show that Colombo has developed, much less maintained, an expertise in legal ethics. Colombo also cannot develop expertise through reading the case materials and treatises on legal ethics and professional responsibility.
Second, Colombo’s professional experience is insufficient. As an associate or in house counsel he did not represent a single client in any case, much less a malpractice action, and never advised a client or peer on issues of legal ethics and professional responsibility. As a professor, Colombo has never taught a course in legal ethics, and neither of his published books or book chapters addresses legal ethics.
His recent law article, Duties Regarding Duties, does not qualify him either. In fact, it furthers the argument that Colombo is only familiar with the world of corporate and securities law because the article instructs its readers on how to best advise members of institutional corporate boards not attorneys facing ethical legal questions or malpractice actions.
II. Colombo’s Opinions Are Irrelevant and Unreliable
A. Colombo’s Opinions Regarding Defendants Engagement and Withdrawal are Irrelevant
Defendants argued that Colombo’s opinions regarding their engagement and withdrawal as the Toussies’ counsel are irrelevant as “neither the second amended complaint nor any of the Toussie’s prior two complaints even mentioned purportedly improper circumstances of W&C’s engagement or withdrawal, much less challenged them as malpractice.”
Plaintiff brought this action complaining of receiving harmful legal advice. Neither W&C Defendants’ retention or withdrawal caused them to provide Plaintiff with the complained of advice. Plaintiff has not shown that the conditions surrounding his retention of W&C Defendants caused them to not more vehemently advise him against pursuing judgment enforcement. Plaintiff, instead, alleged that W&C Defendants did not properly calculate “the value or collectability of the Judgment.” W&C Defendants’ withdrawal could not have caused the alleged harm, because the alleged harm was already committed and completed by the time W&C Defendants withdrew their representation of Plaintiff. Colombo therefore failed to show how the substance of W&C Defendants’ advice was caused by the conditions surrounding their retention and withdrawal.
B. Colombo’s Opinion Regarding Defendants’ Legal Advice Is Unreliable
The Court agreed with W&C Defendants and found Colombo’s report to be unreliable for three reasons.
First, Colombo did not provide a reliable methodology. Colombo focuses on the standard of the “ordinary and reasonable skill of a member of the legal profession,” but this is only the standard for determining if an attorney’s conduct was negligent. Indeed, the violation of an ethical rule alone does not constitute a breach of fiduciary duty, much less malpractice.
Second, Colombo made several speculative leaps throughout his report. The Court also found Colombo’s musings that Plaintiff was an “atypical” client for W&C Defendants to be speculative.
Third, Colombo’s report conflicts with Plaintiff’s own admission. In his report, Colombo asserted that W&C Defendants failed to emphatically advise Plaintiff to settle rather than pursue judgment enforcement. In his report, however, Colombo quoted an email written by Plaintiff stating that Defendant Petrosinelli’s “response to me is, and always had been, settle.”
In sum, the Court found that Colombo is not qualified as an expert on legal ethics and the practice of law, and that his specific opinions in this case are irrelevant, unreliable, and therefore inadmissible.
Held
The Court granted the Defendants’ motions to exclude the testimony of Plaintiff’s proffered legal ethics expert, Ronald J. Colombo.
Key Takeaway:
Colombo’s factual errors in combination with his unreliable standard of care and use of speculation together warrant his proferred expert testimony to be stricken and deemed inadmissible in its entirety. Colombo’s report risks misleading a jury to believe that the violation of an ethical rule alone can constitute malpractice or a breach of fiduciary duty.
