This case arises from a fatal automobile accident that occurred on September 22, 2017. Blake Haddox was traveling southbound on a motorcycle as Defendant Nicholas Roshon Moore drove a semi-truck in a northbound lane and turned left across traffic. The two collided, and Haddox died as a result.
Plaintiffs planned to present the testimony and opinions of Daniel R. Phillips as an expert in accident reconstruction. Defendants argued that Phillips, an accident reconstructionist, is not qualified to provide the expert testimony he proffers, that his testimony will not help the jury, and that his opinions are unreliable. As a result, Defendants filed a motion to prohibit his testimony.
Accident Reconstruction Expert Witness
Daniel Ray Phillips earned a Bachelor of Science degree in mathematics with a minor in physics from the University of North Texas, and a Master of Science degree in mathematics from Texas A&M University. He is fully accredited by the Accreditation Commission of Traffic Accident Reconstruction and has worked as an accident reconstructionist for over 20 years. Phillips also has received specialized training in accident reconstruction.
A. Phillips is qualified to testify as an accident reconstructionist, but unqualified to testify about “human factors” or make credibility determinations
Defendants argued that Phillips is unqualified to testify about “human factors,” unqualified to provide an “opinion as to whether Moore had a protected green arrow when he proceeded to make his turn,” and unqualified to make credibility determinations.
The Court found Phillips qualified by knowledge, skill, experience, training, and education to render opinions about accident reconstruction. However, the opinions proffered by Phillips extend beyond the realm of an accident reconstructionist. The Court agreed with Defendants that Phillips is unqualified to testify about “human factors.” His curriculum vitae does not reflect any specific training in this area. And during his deposition, Phillips acknowledged that his training in “human factors” stems from “some coursework at Northwestern University,” what has been “provided by Crash Safety Solutions,” and that which is “intrinsic … within reconstruction.”
B. Phillips’s proffered opinions are neither relevant nor reliable
Defendants contended that Phillips’ testimony will not aid the jury. One area of his proffered testimony concerns whether an eyewitness, Bruce Gourd, could view the traffic light at the time of the accident.
The Court is not persuaded that Phillips’ testimony about whether Gourd could view the traffic light at the time of the incident is helpful to the jury. Gourd is listed as one of Plaintiffs’ witnesses. The Court did not find it helpful for an expert to explain what Gourd observed when Gourd can tell the jury himself. Moreover, many of Phillips’ opinions are statements of fact that are adequately covered by fact witnesses who were at the scene the night of the accident.
Phillips’ proposed opinions impermissibly invaded the province of the jury. His opinions included, for example: “Moore’s decision to turn across the path of approaching traffic was causal to the crash”; “the independent witness statements are consistent with one another and indicate that Haddox had a green light upon approach”; and “Moore’s testimony concerning the light sequence is not consistent with either of the independent witnesses.”
Throughout his report, Phillips relied on unreliable data to reach his opinions. For example, his report stated, “an exact impact speed of the motorcycle cannot be determined with the available evidence” but the next sentence provides, “[a] subjective analysis of the damage using my experience does not suggest impact speeds over 30 mph.” Phillips failed to explain what his subjective analysis takes into consideration. Further, he acknowledged in his deposition that the exact speed of the motorcycle cannot be determined from the evidence.
For all the reasons set out above, the Court concluded that Phillips’ opinions will not assist the jury and are therefore not relevant.
Held
The Court granted the Defendants’ motion to strike the testimony of Plaintiffs’ expert Daniel Phillips.
Key Takeaway:
The Court concluded that Phillips’ opinions are not relevant and are unreliable because no special skill, knowledge, or expertise is needed to understand and draw conclusions from facts about common experiences.
The Court is confident that the jury will be fully equipped to form its own conclusions about the weight of Gourd’s testimony, other fact witnesses’ testimony, and the ultimate issues in this case. Further, the facts here and the applicable traffic rules are easily understood and within the common experience of jurors in Oklahoma, where private motor vehicle travel is the primary mode of transportation.
This case concerns a motor vehicle collision that occurred between Plaintiff Bryan Russell Arnett (“Plaintiff”) and Defendant Larry Tyrone Fairell, II (“Fairell”) on December 14, 2022.
Fairell filed a motion to partially strike the testimony of Arnett’s retained transportation safety expert, David Hedgpeth.
Transportation Safety Expert Witness
David Hedgpeth is the principal owner of Hill Country Transportation Resources, LLC and has over 35 years of experience in the commercial transportation industry.
Hedgpeth has a comprehensive understanding of commercial transportation industry standards, best practices, and regulatory guidelines, and in particular, what would be considered usual and customary, with employees, commercial drivers, delivery services and company management.
Arnett designated Hedgpeth, of Hill Country Transportation Resources, LLC, in his First Supplemental Expert Designations on March 24, 2025. The designation stated that Hedgpeth “will testify about transportation safety, regulatory compliance, fleet management, commercial motor vehicle accident investigation, and industry standards of care.”
On May 06, 2025, Arnett served his Eleventh Supplemental Rule 26 Disclosures, which included Hedgpeth’s supplemental report.
The parties did not dispute that Arnett’s original designation of Hedgpeth was timely. But the Defendants took issue with the service of Hedgpeth’s supplemental report, which they asserted “addresses new topics and offers new opinions not addressed in Hedgpeth’s original report not disclosed in Plaintiff’s Designations.”
And, so, Defendants contended that Hedgpeth’s supplemental report should be stricken because it is untimely and fails to comply with Rule 26’s disclosure requirements and because the opinions contained in it are unreliable and, consequently, inadmissible under Rule 702 and Daubert.
Rule 26
Defendants argued that Hedgpeth’s supplemental report is untimely because it consisted of “new” opinions about whether speeding was a contributing factor to the incident at issue, which were not contained in his original report.
Arnett stated that the original report analyzed compliance with Federal Motor Carrier Safety Regulations (“FMCSR”) and, specifically, section 395.8(2)(i), which requires drivers to record their duty status. And the supplemental report “builds on this” by analyzing newly produced bills of lading, which “provide additional data regarding the driving hours and mileage of Defendant Fairell [and] directly relate to the original opinion about FMCSR compliance and safety concerns.”
Arnett contended that the supplemental report bolsters Hedgpeth’s original conclusions about FMCSR compliance and safety concerns but did not exceed the scope of his original report.
Based on its review of Hedgpeth’s original and supplemental reports, the Court agreed with Arnett.
Hedgpeth’s supplemental report serves to elaborate – more generally – on his original opinions about compliance with federal safety regulations. And, so, it does not depart from his original report in material respects.
As to timeliness, the documents (bills of lading) that formed the basis of Hedgpeth’s supplemental report were purportedly produced on March 12, 2025, which was before Arnett’s expert designation deadline.
Arnett asserted that Hedgpeth reviewed the materials and produced the supplement “as quickly as practicable,” which allowed Arnett to serve the supplemental report on Defendants on May 6, 2025 – ten days after the discovery deadline.
Rule 702 and Daubert
Defendants also contended that Hedgpeth’s opinions in his supplemental report are unreliable under Rule 702 and Daubert because they are facially speculative. Specifically, Defendants pointed to Hedgpeth’s statements that he “is unable to come to an accurate conclusion as to speed and hours of service” and that the “information and data is inconclusive.”
But Arnett’s response persuasively addressed Hedgpeth’s qualifications, methodologies, materials reviewed, and summary of his opinions as it relates to his supplemental report. And, so, the Court found that Hedgpeth’s supplemental report satisfied Rule 702 and Daubert and that it should not be excluded on that basis.
Held
The Court denied the Defendants’ motion to partially strike the testimony of transportation safety expert, David Hedgpeth.
Key Takeaway:
Insofar as Arnett’s supplemental disclosure fell short of Rule 26’s requirements, the Court found that such non-compliance – on considering the arguments that Arnett persuasively lays out in his response – was harmless.
The Federal Trade Commission contended that Amazon tricked, coerced, and manipulated consumers into subscribing to Amazon Prime. According to the FTC, this was accomplished by failing to disclose the material terms of the subscription clearly and conspicuously and by failing to obtain the consumers’ informed consent before enrolling them. The FTC also alleged that Amazon did not provide simple mechanisms for subscribers to cancel their Prime memberships. The FTC sued Amazon.com, Inc. and three of the company’s executives, Neil Lindsay, Russell Grandinetti, and Jamil Ghani.
Defendants’ expert Donna L. Hoffman, Ph.D. offered five opinions. First, she said that analysis of online consumer experience must account for consumers’ goals, past experiences, and expectations. Second, she said that the definition of “dark patterns” is vague and lacks scholarly consensus. She also said that the subjective interpretation of this term may misidentify common legitimate marketing practices as “dark patterns.” Third, she said that the FTC’s claims regarding the user interface (“UI”) design elements in Amazon Prime Enrollment and Cancellation Flows are “unfounded.” Fourth, she said that the UI design elements at issue are common online and likely familiar to consumers. Fifth, she said that Amazon’s clarity improvement initiatives had methodological limitations that limited Amazon’s ability to interpret the results.
The FTC made two primary arguments to exclude Hoffman’s testimony. First, it said that her analysis of the Prime Enrollment and Cancellation Flows is irrelevant and unreliable. Second, it said that her comparative analyses of UI elements is similarly irrelevant and unreliable.
Marketing Expert Witness
Donna L. Hoffman, Ph.D., is a marketing professor at The George Washington University School of Business. She has a Ph.D. from the University of North Carolina at Chapel Hill and her training is in psychometrics, a field of behavior science that focuses on experimental design and human cognition and behavior.
Her work has been published in all of the field’s top journals and enjoys wide impact with nearly 30,000 Google scholar citations.
Hoffman has been awarded many of the field’s most prestigious awards, including being named a Fellow of the Society for Consumer Psychology, the Robert B. Clarke Educator of the Year Award from the DMEF, the Sheth Foundation/Journal of Marketing Award for long-term contributions to the discipline of marketing, the Stellner Distinguished Scholar Award from the University of Illinois, the William O’Dell/Journal of Marketing Research Award for long-term research impact, and others.
1.Analysis of Prime Enrollment and Cancellation Flows
The FTC argued that Hoffman’s analysis of the Prime Enrollment and Cancellation Flows is irrelevant. It said that this analysis is irrelevant because it will not help the factfinder determine whether Amazon disclosed Prime’s terms clearly and conspicuously, obtained informed consent from Prime subscribers, or provided simple mechanisms to cancel Prime.
Defendants have shown by a preponderance of the evidence that the analysis is relevant. The FTC contended that Prime’s enrollment and cancellation flows include manipulative designs. And Hoffman’s analysis directly responded to this allegation by saying, among other things, “the FTC’s failure to consider consumers’ familiarity with design elements or standard marketing practices severely undermines their conclusions about whether the alleged UI design elements at issue in Amazon Prime’s enrollment and cancellation flows would ‘trick,’ ‘manipulate,’ or ‘mislead’ consumers and influence their behaviors or ‘complicate’ these processes.”
2.Comparative Analyses of UI Elements
The FTC also said that Hoffman’s comparative analyses are irrelevant because they are not focused on Prime. According to the FTC, regardless of the practices employed by other subscription services, the factfinder must evaluate Amazon’s conduct independently. But Defendants said that this testimony is relevant to the “reasonable consumer” standard.
Defendants also satisfied their burden of showing that this testimony is relevant. At a minimum, much like her analysis of the Prime enrollment and cancellation flows, Hoffman’s comparative analyses responded to the FTC’s allegation that Amazon employs manipulative designs. She presented two comparative analyses that suggest “these UI design elements at-issue (or those similar to them) are commonly used online, and many consumers are likely to be familiar with them independent of their interactions with Amazon website.”
B. Reliability of Hoffman’s Testimony
1. Analysis of Prime Enrollment and Cancellation Flows
The FTC argued that Hoffman’s analysis of the Prime enrollment and cancellations flows is unreliable. It said that she does not refer to any methodology in her report and that she suggested nine methodologies during her deposition. The FTC added that even if the Court accepted that Hoffman used a methodology, the methodology is insufficiently reliable because she never defines “legitimate marketing practice.”
Although the FTC argued that she described nine methodologies, that does not appear to be the case. Instead, she applied the “concepts and constructs from [her] discipline to evaluate the flows.” As one example of this, she evaluated allegations the FTC made about the complexity of Amazon Prime’s cancellation process.
She explained how, in her opinion, the FTC overlooked “legitimate and standard marketing practice” when making these allegations. Her report also applied pertinent academic marketing and consumer behavior literature. She used a marketing management textbook to explain the complexity of a consumer’s decision-making process.
The Court found that Hoffman relied on her education and experience to reach these conclusions. The FTC also challenged Hoffman’s failure to define “legitimate marketing practices,” but her report does provide examples that she believes fall within the ambit of this term.
2.Comparative Analyses of UI Elements
First, the FTC said it was concerned that Hoffman had developed her comparative analysis specifically for purposes of this litigation. Hoffman’s report indicated that she offered conclusions “growing naturally and directly” from her education and experience in marketing research techniques. So, on balance, the Court decided that Hoffman’s comparative analysis need not be excluded simply because she developed it for the purposes of this litigation.
Second, the FTC said that Hoffman’s methodology lacked acceptable standards. For instance, the FTC complained that Hoffman did not explain how she chose to “map” each of the UI design elements that she supplied to the independent coders. But she identified the specific paragraph of the complaint that she used to generate her description of the at-issue UI element. Hoffman adequately articulates her methodological choices and provided a foundation for the data she incorporated into her report.
Third, the FTC said that there is an analytical gap between Hoffman’s data and her conclusions. On this point, the FTC appeared to misapprehend Hoffman’s report because it does not attempt to define a specific threshold at which the prevalence of a UI design element makes it “familiar” to consumers or how familiarity with one website gives consumers familiarity with an Amazon website. To the contrary, as Hoffman explained in her deposition, her goal was to establish that certain UI elements are common across commercial and government websites, and a consumer’s familiarity with these features “could likely implicate — likely impact their, you know, understanding and their interaction behavior, and things like that.”
Finally, the FTC said that Hoffman’s methodology rests on a “shaky foundation.” Yet “shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.”
Held
The Court denied the Plaintiff FTC’s motion to exclude the testimony of Defendants’ expert Donna L. Hoffman.
Key Takeaway:
When an expert in an uncertain field is extrapolating from existing data and generating novel hypotheses about complex issues, she is permitted wide latitude to offer opinions.
The Court did not deem her methods unreliable because she did not explain precisely how she got from the allegations in the complaint to the analyzed UI design element. Hoffman adequately articulates her methodological choices and provided a foundation for the data she incorporated into her report. The FTC’s other arguments criticizing Hoffman’s methodology similarly failed to persuade the Court that her report is the product of unreliable methods.
Please refer to the blogs previously published about this case:
This case involves a rear-end collision between Plaintiff Tyler Brown’s sedan and a sprinter van driven by Defendant Nikolay Muzyka.
The accident occurred during the early morning hours of July 29, 2021. Defendant Muzyka, who was driving in the far right lane, began to slow down as he saw lights from emergency vehicles ahead. As he was slowing down, Defendant moved over two lanes into the far left lane. Plaintiff Brown, who was driving in the far left lane, collided with Defendant causing both cars to turn facing oncoming traffic.
Brwon sued Muzyka for negligence and negligence per se. Brown also sued Aleksei Dulepin—the owner of the sprinter van—and Amload, LLC—Muzyka’s employer. Defendants retained accident reconstructionist, Andrew D. Irwin, as Defendants’ testifying expert. Plaintiff filed a motion to preclude Irwin from offering certain opinions at trial.
Accident Reconstruction Expert Witness
Andrew Damien Irwin is an Accident Reconstructionist with Aperture (formerly Scientific Analysis Inc). He uses his decades of experience to provide expert testimony, making use of aids such as accident site diagrams, maps, charts, and crime scene exhibits.
He holds a Bachelor of Science in Architectural Engineering from the University of Texas at Austin and has completed specialized study in accident reconstruction at Northwestern University and Texas A&M University.
Irwin is a member of multiple professional societies, including the National Association of Professional Accident Reconstruction Specialists (NAPARS), Society of Accident Reconstructionist (SOAR), Texas Association of Accident Reconstruction Specialists (TAARS), the American Society of Mechanical Engineers (ASME), and the Society of Automotive Engineers (SAE).
Plaintiff asked the Court to prohibit Irwin from offering two categories of opinions. First, Plaintiff argued that Irwin should not be allowed to give his opinions about Plaintiff’s reaction time, considering the visibility and conditions at the time of the collision. Second, Plaintiff asked the Court to preclude Irwin from offering his opinions about Section 545.157 of the Texas Transportation Code, known as Texas’s “Move Over or Slow Down” law.
Irwin’s Opinions about Visibility and Conditions at the Scene of the Accident are Admissible
Plaintiff Brown objected to Irwin’s opinions that at the time of the accident “visibility was good” based on an aerial video of the location of the collision taken during the day, roughly two years after the accident.
Brown argued that because this accident took place around one o’clock in the morning on a dark stretch of highway, Irwin’s opinions are incomplete, irrelevant, misleading, and will cause unfair prejudice if the opinions are based on an illustration of the accident scene that was taken during daylight hours.
Brown also argued that Irwin’s opinions that there was sufficient visibility for Plaintiff to see and react to the sprinter van’s taillights or flashers and avoid a collision are unsupported speculation and merely Irwin’s subjective belief because Irwin did not perform a looming threshold analysis.
Analysis
Plaintiff did not point the Court to any cases holding that the failure to use a looming threshold analysis renders an accident reconstructionist’s testimony unreliable. Defendants argued whether Irwin relied on some incorrect facts or should have examined additional or different data is a valid subject of cross-examination, but it did not render Irwin’s opinions inadmissible. The Court agreed with Defendants.
Irwin’s failure to perform a looming threshold analysis to account for the “dark-lighted” conditions at the time of the accident similarly concerned the weight of the evidence, not its admissibility. The fact that Irwin’s conclusions might be based on data or assumptions that are contracted by facts in the police report did not render Irwin’s conclusions inadmissible.
Irwin’s Opinions do not Constitute Impermissible Legal Conclusions
Plaintiff argued that Irwin offered incorrect opinions about Texas’s Move Over or Slow Down law, which impermissibly invaded the province of the judge and jury.
What Plaintiff failed to mention is that Plaintiff’s counsel asked Irwin whether Defendant Muzyka followed the Move Over or Slow Down law. In other words, Irwin did not comment on or opine about the law in his expert report.
While Irwin is not permitted to offer legal conclusions at trial, the Court held that the opinions contained in his expert report did not constitute impermissible legal conclusions.
Held
The Court therefore denied the Plaintiff’s motion to limit the opinion testimony of Defendant’s expert Andrew D. Irwin.
Key Takeaway:
The reliability of the data and facts underlying Irwin’s opinions concerned the weight of the evidence and is subject to cross-examination. In other words, it did not serve as a basis for excluding Irwin’s ultimate opinions.
Plaintiff may cross-examine Irwin about whether his failure to use a looming threshold analysis to determine Plaintiff’s perception at night or whether any of the factors he did not account for materially affect his opinions.
These factors concerned the weight of Irwin’s expert testimony, not its admissibility. The Court found that while Plaintiff may cross-examine Irwin as to these alleged deficiencies, Plaintiff has not established that Irwin’s opinions are unreliable and therefore inadmissible.
The Plaintiffs had been employed by the Metropolitan Government of Nashville and Davidson County, Tennessee. They alleged in their lawsuits that, on May 4, 2020, they were either terminated or demoted for discriminatory reasons, and brought claims asserting many of the same legal violations.
The Defendants filed two motions to exclude the testimony of Plaintiffs’ experts, Dr. Kenneth Smith and Dr. Robin Lovgren.
Accounting Expert Witness
Dr. Kenneth A. Smith has a PhD in Governmental Accounting and has worked as a Certified Public Accountant with local governments. Based on his published research and service on his local school board, he has specific expertise in public school district budgeting, accounting and financial management.
Dr. Robin Lovgren is an Associate Professor of Mathematics at Belmont University and has been teaching statistics for 16 years. She has overseen student statistical projects including a statistical regression analysis for the Human Resources Department of a local architectural and engineering firm recently.
She earned her Master of Science in Statistics and Ph.D. in Management Science from the University of Tennessee in Knoxville.
“Elimination of the Central Office positions was discretionary and not mandated by the budget process”; and
“The removal of these positions did not appear to follow the procedural and professional steps that commonly occur for budget-driven organizations.”
Metro filed a motion to exclude Smith’s opinions on the basis that they were irrelevant and unreliable, and therefore inadmissible.
Relevance
Metro first argued that Smith’s opinion that the Central Office reorganization at Metro Nashville Public Schools (“MNPS”) was discretionary is irrelevant, because school budgeting always involves a certain amount of discretion, and Metro has never contended otherwise. Rather, Metro stated, it has always acknowledged that the fiscal year budget for fiscal year 2021 “reflected MNPS’ business judgment and budgetary discretion.” It argued that the jury will not be called upon to decide whether the Central Office reorganization was mandated by law but, instead, whether the employment decisions were retaliatory or discriminatory. “So,” it concluded, “an expert opinion that budgeting is discretionary and that reorganization was not required by law has no bearing on any fact of consequence in this case.”
The Court disagreed. While there is no doubt that school budgetary decisions are largely discretionary, involving selections among many possible choices, Smith’s report suggested that Metro’s purported budgetary concerns were grossly overstated, given MNPS’ actual financial situation in 2020. The point of his opinion is that there were many other less controversial and more common areas within the budget from which Metro could have made up whatever deficit it believed it needed to cover, rather than taking the unusual step of cutting personnel first.
Reliability
Metro argued that Smith’s opinion that the Central Office reorganization did not “‘appear’ to follow the correct steps” is not reliable because it amounts to nothing more than speculation based on Smith’s “subjective notion about what should have or could have happened during [the] reorganization.”
Smith observed that: (1) “budget pressure at MNPS in 2020 was fairly similar to prior years”; (2) “there were a large number of reasonable, routine & available options to address the budget pressure”; (3) “most budget options went through a substantive technical review process”; and (4) “this change [i.e., the elimination of Central Office positions] did not follow a substantive technical review process.”
Therefore, Smith concluded that the removal of these positions did not appear to follow the procedural and professional steps that commonly occur for budget-driven reorganizations.
The Court held that Smith’s opinion that the “Central Office Reorganization was not mandated nor necessitated by the budget process” is adequately supported and not based on mere speculation.
Whether the Central Office Reorganization Resulted in Cost Savings
Smith stated in his report that reorganizations like that undertaken by MNPS “sometimes result in actual cost savings, sometimes they are budget neutral and sometimes [they increase rather than decrease] the budget outflows.”
Based on this statement, Metro argued that Smith cannot offer an opinion as to whether MNPS sought or achieved any particular cost savings through the Central Office reorganization.
The Plaintiffs did not address this argument, and it did not appear that Smith offered or intended to offer any such opinion, as he expressly disclaims knowledge of whether cost savings were either projected or achieved. Accordingly, Metro’s request to exclude such an opinion is uncontested. The Court granted this small aspect of Metro’s motion.
Robin Lovgren
Robin Lovgren was asked by the Plaintiffs to “determine whether the employment decisions made in 2020 at [MNPS] show a pattern of discrimination based on engagement in protected activity.”
She conducted a statistical analysis, based on information and documentation provided to her by the Plaintiffs that identified which employees were and were not known by Defendant Battle to have engaged in protected activity.
Based on the information she reviewed, Lovgren concluded that “in 2020 a disproportionately large number of employees engaged in protected activities were adversely affected by the reorganization of the Central Office.”
Statistical Analyses Based on the Number of Central Office Employees Who Had Engaged in Protected Activity
Reliability
Metro argued that Lovgren’s opinions are unreliable, because she failed to “support her opinions with sufficient facts or data to establish how many MNPS employees engaged in protected activity, or how many were adversely affected by the reorganization.”
Lovgren’s opinion regarding which employees were and were not known to have engaged in protected activity was based on Defendant Dr. Adrienne Battle’s deposition testimony.
The Court found it reasonable to assume that Battle, as Director of Schools for MNPS, understood the meaning of “protected activity” and knew what she was acknowledging when she stated she was not aware that any of the individuals had engaged in such activity. Moreover, it was undisputed that she knew the Plaintiffs had, in fact, engaged in protected activity. The Court concluded that Lovgren’s failure to define the term did not render her opinions unreliable.
Likewise, as a matter of common knowledge, it was clear that being demoted, fired, or not rehired after a reorganization are “adverse” employment events, and Lovgren’s failure to define “adversely affected” as used in her report did not render her opinions unreliable.
Relevance
Metro argued that, because Lovgren’s opinions—based on the number of employees who were not known to have engaged in protected activity—were not reliable, they did not “tend to show that any facts are more or less probable” and therefore must be excluded for lack of relevance. However, because the Court found the opinions reliable, this argument failed.
Statistical Analyses Based on the Number of Principals Who Had Engaged in Protected Activity
Metro raised a separate argument regarding Lovgren’s analysis of the relative numbers of school principals who did or did not suffer an adverse employment action and who were or were not known to have engaged in protected activity. Lovgren conceded that she did not have any information regarding school principals (other than Plaintiff James Bailey) who were known to have engaged in protected activity.
And in her explanation of the analyses regarding school principals, Lovgren stated: “The number of principals who engaged in protected activity was not known for this analysis so ‘what-if’ analyses were performed. The [analyses assume that] Bailey was the only principal who engaged in protected activity.”
Because Lovgren admittedly cannot point to any facts in the record to support her assumption that Bailey was the only principal who was known to have engaged in protected activity, the Court held that her statistical analysis relating to school principals are not reliable and must be excluded.
Held
The Court granted in part and denied in part the Defendants’ motions to exclude the opinions of Dr. Kenneth Smith and Dr. Robin Lovgren.
Key Takeaways:
An expert’s opinion, where based on assumed facts, must find some support for those assumptions in the record. Here, Lovgren’s opinion regarding which employees were and were not known to have engaged in protected activity was based on Defendant Battle’s deposition testimony.
Expert testimony should be supported by more than subjective belief and unsupported speculation and should be supported by good grounds, based on what is known. Smith’s opinion that the “Central Office Reorganization was not mandated nor necessitated by the budget process” is adequately supported and not based on mere speculation.
Case Details:
Case Caption:
Hayes V. Metropolitan Government Consolidated Of Nashville and Davidson County, Tennesse
Plaintiff Jose Verdecia sustained injuries after falling through the ceiling of his home. He claims these injuries and other damages resulted from a misrepresentation by State Farm’s adjuster, Marvin Johnson, who allegedly instructed him to inspect the attic for damage, implying that his claim would be denied otherwise.
To support his case, Plaintiff retained Earl Stigler as an expert. Stigler was prepared to testify about proper claims handling procedures and the standard of care expected from insurance adjusters.
On November 7, 2024, Plaintiff served supplemental disclosures regarding Stigler’s testimony. One week later, State Farm filed a motion to strike Stigler, arguing the disclosures were late and the testimony failed to meet Daubert standards.
State Farm later filed a supplement to its motion to strike, citing deposition testimony that it believes further supports the argument that Stigler’s opinions should be struck. State Farm argued that Stigler’s deposition revealed that Stigler’s report contained irrelevant information and opinions that were contradictory, rendering it unreliable.
Insurance Expert Witness
Earl Stigler became an adjuster in 1983. His experience includes serving as a field auto and property adjuster, an inside property damage adjuster, an inside casualty adjuster, and a senior casualty adjuster. Over the course of his career, he has adjusted more than 14,000 claims, demonstrating his expertise by successfully negotiating a $18.8 million property claim and a $3.25 million open head injury claim.
State Farm contended that Stigler’s report and testimony lacked a reliable methodology, could not be adequately peer-reviewed for his field, and constituted “ipse dixit” (unsupported assertions). They also argued that the report contained erroneous, conflicting, and irrelevant information, making it unreliable under Rule 702 and Daubert.
Analysis
Methodology
The Court found Stigler’s methodology entirely reliable, deeply “grounded in his professional experience and training”, a career spanning back to 1983. His process involved a practical approach: reviewing the relevant records in this case and rigorously comparing them to “recognized practices in the industry that are generally accepted.” The Court recognized that Stigler’s decades in the insurance industry, coupled with his review of relevant materials, equipped him with intimate familiarity with these very standards. When State Farm declared that peer review of Stigler’s report is impossible, the Court reiterated that the rigid checklist of traditional Daubert factors doesn’t always apply. Not all Daubert factors need be met for expert testimony to be admissible. Stigler’s testimony does not involve scientific evidence and therefore any peer review need not be the rigorous scientific or technical review as might be necessary for purely scientific or technical testimony.
The Court also disagreed that Stigler’s report constitutes mere ipse dixit. Again, Stigler need not cite to “recognized scientific or technical standards.”
The Court found State Farm’s arguments concerning erroneous, irrelevant, and conflicting information similarly unavailing. All of the issues, including Stigler’s citation of the incorrect handling guidelines, can be discussed on cross examination.
Held
The Court held that Plaintiff’s expert, Earl Stigler’s testimony is reliable. Any issues concerning Stigler’s report or testimony may be discussed on cross-examination and are not grounds for exclusion.
Key Takeaways:
Courts across the country allow experts to testify regarding industry customs and practices based on experience. Stigler’s testimony does not involve scientific evidence and therefore any peer review need not be the rigorous scientific or technical review as might be necessary for purely scientific or technical testimony. State Farm was free to find its own expert in industry custom to review Stigler’s report and come to its own conclusions. Again, it is also free to question Stigler’s testimony or report on cross-examination.
Defendants CooperSurgical, Inc., Femcare, Ltd., and Utah Medical Products, Inc. manufacture and distribute birth control devices called Filshie Clips.
Filshie Clips are 3-5 millimeters wide and are laparoscopically placed on the fallopian tubes. Plaintiffs are individuals who had tubal ligation surgery in 2009 and 2010.
Plaintiffs Giovanna Bulox and Lorena Ahiri Merlo are sisters. Bulox underwent a tubal ligation procedure, choosing Filshie clips on July 13, 2010. Merlo underwent a tubal ligation procedure through the use of Filshie clips on July 21, 2009. Several years later, both sisters allegedly began to experience discomfort and pain.
In 2019, doctors removed two migrated Filshie Clips from Bulox’s body, one in her intestinal wall. Plaintiff Merlo had the same pain several years after her surgery, and in 2020, radiology showed the Filshie Clips migrated in her body. An attempt to remove them laparoscopically was unsuccessful; Merlo still has displaced Filshie Clips in her body. Plaintiffs sued Defendants for: (1) design defect; (2) manufacturing defect; (3) failure to warn; (4) strict liability; (5) negligence; (6) violation of consumer protection laws; (7) gross negligence; and (8) exemplary damages.
Defendants designated Dr. Janesh K. Gupta as a witness to assist their defense but Plaintiffs sought to exclude several of Gupta’s opinions, namely any opinion regarding: (1) Bulox’s medical condition; (2) Merlo’s medical condition; (3) the design and/or manufacture of Filshie Clips; (4) the adequacy of warnings promulgated with Filshie Clips; and (5) FDA regulations or how they apply to Filshie Clips.
Obstetrics and Gynecology Expert Witness
Dr. Janesh Gupta is an Honorary Professor of Obstetrics and Gynaecology at Birmingham Women’s and Children’s Hospital.
Gupta has published over 175 research papers in scientific journals, book chapters, reviews and books and over 100 lectures and presentations to learned societies in the fields of fetal medicine, benign gynaecology (including abnormal uterine bleeding, fibroids, endometriosis, endometrial hyperplasia), minimal access surgery, induction of labour and abortion. He has received grants from WellBeing of Women, Department of Health National Institute for Health Research (Health Technology Assessment), Medical Research Council and various industry partners.
Defendants designated Gupta as a witness to assist their defense because he is “an experienced English OB/GYN who has used the Filshie Clip for decades, has both written and reviewed published literature on the Filshie Clip, specifically on Filshie Clip migration, and has since 2012 served as the independent medical consultant for Femcare Ltd.—reviewing complaints and assisting with risk reviews and other studies of the Filshie Clips.”
The Parties Resolved Several Issues Raised in the Motion
Plaintiffs argued that Gupta is unqualified to testify about: (1) the injuries sustained by Plaintiffs because he never treated or examined Plaintiffs and did not review their medical records; and (2) Defendants’ FDA compliance because he does not practice medicine in the United States and possesses no knowledge of the FDA regulations or manufacturing or developing a medical device. Plaintiffs continued that Gupta’s opinions are unreliable and unhelpful because he is not an FDA expert yet offers opinions regarding what is a “serious injury” and “reportable event” according to FDA standards, and he did not form his opinions according to objective independent methodology.
However, Defendants explained that they did not intend to offer several of the objected-to opinions, making them moot. First, “Gupta did not intend to provide any specific testimony on Plaintiffs.” Second, Gupta provided no opinion on manufacturing or designing Filshie Clips, but rather he discussed how the design “physiologically accomplishes . . . female sterilization and result in migration,” and he also pointed out that Plaintiffs’ expert had no experience in designing medical devices. Based on the Court’s review, the above issues were denied as moot.
Third, Defendants have a separate FDA expert and did not intend to use Gupta as such—instead, Gupta discussed his own review of adverse event complaints as Defendants’ independent medical consultant.
Defendants clarified that “Gupta’s opinions . . . are really about his medical review of adverse event complaints in the context of FDA definitions.” Plaintiffs asserted that this clarification is insufficient because Gupta cannot offer the above testimony without also testifying about Defendants’ FDA compliance. But that is the exact same testimony that they stated that they intended to elicit from him. The Court held that this argument is insufficient for the exclusion of Gupta’s testimony.
Plaintiffs Failed to Carry their Burden To Exclude Gupta’s Testimony
Gupta May Testify About Reviewing Adverse Event Complaints
Plaintiffs argued that Gupta’s opinions regarding his review of reportable events are not backed by any independent methodology and therefore should be excluded. They argued that because Gupta lacked knowledge of the FDA and did not conduct independent research, he “relied only on his subjective interpretation of a definition of ‘serious injury’ provided to him by Femcare to make his determinations regarding serious injuries/reportable events,” which led to inconsistent findings. Plaintiffs also argued that Gupta rejected medical reports and made unfounded assumptions to discount patient reports of migration.
In his report, Gupta gave a detailed overview of his extensive medical experience and experience as a reviewer and of the applicable FDA regulations. Gupta first ascertained whether there was a serious injury in accordance to the regulatory body definitions and then determined whether there is a reasonable suggestion that the product may have caused the injury.
Gupta explained that that long-lasting chronic pain, the most common complaint with Filshie Clip migration, requires additional review due to the complexity of pain in the body, which for him, includes searching for additional physiological evidence in the medical history suggesting that the device caused or contributed to the reported problem. The Court held that Plaintiffs’ arguments are insufficient to exclude Gupta’s testimony as unreliable. Plaintiffs’ arguments largely relate to the bases of Gupta’s review decisions, not the underlying methodology, and are therefore more suitable for cross examination.
Gupta May Testify About Filshie Clip Warnings
Plaintiffs contended that Gupta’s opinions that the Filshie Clip instructions for use (“IFU”) are based on accurate and reliable data is unreliable and unsupported because these opinions are “based on his own erroneous understanding of the language included in the documents and a rate of incidence (0.13%) provided to him by Defendants and not based on any peer-reviewed science or accepted medical principles.”
The parties disagreed on the underlying facts of Gupta’s opinion that the Filshie Clip IFUs are based on accurate and reliable data. Without deciding the correctness of Gupta’s opinion, the Court found that his opinion is reliable: Gupta has extensive experience with implanting Filshie Clips and reviewing the IFUs—his testimony is based on this experience.
Held
The Court denied Plaintiffs’ motion to limit Defendants’ fact and expert witness, Dr. Janesh K. Gupta’s testimony.
Key Takeaways:
Unlike Plaintiffs’ contentions, Gupta has adequate knowledge of the applicable FDA regulations and has educated himself independently of Femcare’s provided material, citing to a wide body of literature in the field of chronic pelvic pain.
Gupta has employed his education and experience as a clinical expert who has implanted Filshie Clips for decades and counseled countless patients on the procedure. He also employs his own research, writing, and review of literature in reviewing the warnings for Filshie Clips to come to a conclusion as to whether they adequately warn of clip migration.
Please refer to the blog previously published about this case:
Plaintiff Deavrin Sneed (“Sneed”) filed this products liability case against Defendant Crown Equipment Corporation (“Crown”) after a workplace incident involving a Crown RC5500 Series stand-up rider forklift (the “subject forklift”).
Crown’s RC5500 stand-up, side-stance forklifts are used to move palleted materials in warehouse facilities. When operating the forklift, the driver stands sideways with their hands on the controls while leaning against a backrest. And they use their feet to operate the service brake and “power-on pedal.” The operator compartment is open (i.e., there is no door). Operators use the multi-function handle to control travel direction and speed. And they can stop the forklift by braking or using a technique called “plugging,” in which the operator pulls or pushes the multi-function handle in the opposite direction of the direction of travel to slow and stop the forklift.
Plaintiff Deavrin Sneed alleged that, while he was loading and unloading pallets with the subject forklift at a Target Distribution Center, it malfunctioned. The forklift accelerated unexpectedly at a high rate of speed, the brake mechanism failed, and Sneed crashed into a pole, resulting in severe injuries, including a partial leg amputation.
Sneed asserted the following claims against Crown:
(1) product liability – design defect
(2) product liability – manufacturing defect
(3) general negligence (including premises liability, failure to warn, improper supervision, and improper maintenance/inspection)
(4) negligent/faulty maintenance
(5) negligent/faulty repair work.
Sneed retained Dr. Jason Kerrigan and Robert Bullen as mechanical engineering expert witnesses to testify regarding purported design defects concerning the subject forklift.
Crown moved to exclude both opinions, claiming the experts were unqualified to render opinions regarding proposed design alternatives and that their opinions were unreliable.
Mechanical Engineering Expert Witnesses
Jason Kerrigan
Jason Kerrigan is the Commonwealth Professor of mechanical and aerospace engineering and the Director of University of Virginia’s Center for Applied Biomechanics (CAB).
Kerrigan’s research focuses on studying the epidemiology of public health problems related to human injury, characterizing the mechanical response of human tissues, identifying their thresholds for failure (injury), developing and improving mechanical and computational surrogates to study the risks of injury, and exploring countermeasures to mitigate human injury risk and severity.
Robert Bullen, P.E., J.D. is a licensed Professional Engineer with more than 25 years of experience in both the biomedical and mechanical engineering fields His experience includes machine design and industrial plant design, as well as experience as a manufacturing engineer in production environments. In addition to his engineering background, he also holds a Juris Doctor degree.
Kerrigan opined that the subject forklift was defective in design because of the forklift’s open operator compartment and the lack of an operator backrest sensor. He recommended that the subject forklift should be equipped with a door or enclosure and a backrest sensor for safety.
A. Kerrigan is Qualified
Crown asserted that Kerrigan has “little to no experience in the actual field of design or in the field of forklifts in general.”
It contended that Kerrigan admitted at his deposition that he “has never worked for a company that designs, builds, or manufactures stand-up rider forklifts,” “has never designed any component part of a stand-up rider forklift,” “has never published any articles that deal with forklift operation, safety, or design issues,” and “has never been responsible for making design decisions regarding the design of a stand-up rider forklift.”
Kerrigan stated that he began studying forklift designs in April of 2016 when he was retained in his first case involving a left lower extremity injury to the operator of a stand-up forklift. Since then, and over the last 8+ years, he has reviewed and studied deposition testimony, Defense and Plaintiff’s expert reports, and other materials produced during discovery in a total of 13 different civil litigation matters involving left lower extremity injuries sustained by operators of stand-up forklifts similar to the subject forklift in this matter.
Considering Kerrigan’s background and experience in engineering and mechanical design, and specifically his work concerning occupant protection and the impact of crash events in the automobile industry, the Court held that he is qualified to opine regarding the subject forklift’s design.
B. Kerrigan’s Opinions are Unreliable
Crown’s Arguments
Crown contended that Kerrigan’s opinions regarding the subject forklift’s design and specifically, the purportedly safer alternative designs that he proffers, should be excluded because they were unreliable.
Kerrigan proposed the addition of a physical enclosure or door to the operator compartment of the forklift and the inclusion of a backrest sensor.
Crown asserted that it was “fatal to Kerrigan’s proposed alternative design ‘concepts’ that he has provided nothing beyond speculation as to what type of operator compartment door or backrest sensor should be implemented on the Crown RC5500 and how they would be manufactured and implemented on the RC5500.” And he “has not and cannot provide any design details or show any reliable methodology regarding its untested and unengineered ‘concepts.’”
i) Untested and Unengineered Concepts
a)Backrest Sensor
Crown stated that Kerrigan “admitted that he has not developed any design drawings regarding where he would place a backrest sensor or what type of backrest sensor he would add to the Crown RC5500. Specifically, he testified that “I didn’t try to come up with a specific design of anything [regarding the backrest sensor].” He has not developed any prototypes or mockups, nor performed any testing whatsoever regarding his backrest sensor “concept.” In proffering his backrest sensor “concept,” Kerrigan did not apply a reliable—or indeed any—methodology as required by Daubert. Accordingly, his backrest sensor alternative design opinions must be excluded.”
b)Operator Compartment Door
Crown asserted that Kerrigan “also admitted that he has “not created any drawings of any designs [regarding compartment doors].” He further testified that he has not conducted any testing on a forklift equipped with a door. Specifically, he testified that “I haven’t done any testing of any doors at all in this scenario here.” Kerrigan further admitted that:
He has not determined the weight of the door he would add to the Crown RC5500;
He has not determined whether the door would be spring-loaded or latched; and
He has not determined the tension of the spring that would be required to keep the door shut.
Crown also pointed out that Kerrigan admitted that he had “performed no testing” for this case. Kerrigan stated that he had “not formed a specific opinion about all the factors that would need to be considered to implement design changes.”
ii) Failure to Establish Causation and Feasibility
Crown further contended that Kerrigan had not reliably established that an operator compartment door or a backrest sensor were safer alternative designs that would have prevented or significantly reduced the risk of Sneed’s injury under the specific circumstances of this accident.
In support of its contention, Crown stated that Kerrigan “admitted that he has no sketches, calculations, or measurements of the accident scene or the subject forklift and, in fact, has never even been to the accident scene. Further, he did not conduct a reconstruction of Plaintiff’s accident, nor did he even attempt to calculate the accelerations or speed of the forklift prior to the accident.”
Further, Kerrigan admitted that his backrest sensor “concept” would not have prevented Plaintiff’s injuries in this accident: “if the backrest sensor was there, I still think that some way that prevents the occupant from placing their extremities outside the running lines of the forklift while it’s moving would be required.” And regarding his operator compartment door “concept”, when asked whether, if a manufacturer added a door to a stand-up rider forklift, lower left leg injuries would still occur, he testified, “sure. Anything could happen.”
Analysis
When it became clear that Kerrigan’s advocacy for the addition of a physical door or enclosure to the operator compartment and a backrest sensor as feasible design alternatives lacked support from appropriate engineering work, product development, or testing, the Court held that his proposed alternatives were speculative concepts, insufficient to constitute an admissible expert opinion.
Also, it was noted that Kerrigan did not show that his proposed alternatives would have changed the outcome of this accident. And, while Kerrigan may have reviewed Crown’s accident data, the Court held that it is “not evidence of the alternative design’s superior safety because it did not involve similar forces and factors” as involved in Sneed’s accident.
Kerrigan has not met his obligation under Daubert to identify data supporting his opinions that an operator compartment door or a backrest sensor were feasible or that either would have changed the outcome of the incident at issue.
And, because Kerrigan has not connected his opinions to existing data, the Court agreed that Kerrigan’s proposed design alternatives are untested, based on unsupported speculation, and amount to ipse dixit.
II. Expert Robert Bullen, P.E., J.D.,
Bullen opined that the subject forklift’s design was defective and unreasonably dangerous because of the optical switch’s design for the multifunction control handle and the control module programming’s response to an event where there is an accelerator sensor error. Bullen suggested that the subject forklift should be equipped with a “more robust” optical switch and that the control module should be reprogrammed to respond to a hypothetical accelerator sensor error by automatically braking.
A. Bullen is Qualified
Crown contended that Bullen was not qualified by education or experience to render opinions regarding the subject forklift’s design.
It should be noted that Bullen’s experience has primarily concerned “biomedical engineering (both research and primary care) and consulting engineering for the design and construction of industrial manufacturing plants and code compliance issues.”
But Crown asserted that Bullen’s work has never “involved the consideration of how a forklift should be designed or how the electrical component within a forklift should be designed.” And it contended that Bullen admitted at his deposition that he “is not an electrical engineer and does not hold himself out” as one.
However, Sneed asserted that Bullen has dedicated a significant amount of time and study into Crown forklifts safety, safety design, and safety compliance.
Considering Bullen’s background and experience in engineering and work involving forklifts, the Court held that he is qualified to provide opinions regarding the subject forklift’s design.
B. Bullen’s Opinions are Unreliable
Crown’s Arguments
Crown contended that Bullen’s opinions regarding the subject forklift’s design and, specifically, the purportedly safer alternative designs that he proffers should be excluded because they were unreliable.
As discussed above, Bullen proposed incorporating a “more robust” optical switch and reprogramming the control module to respond to a hypothetical accelerator sensor error by automatically braking.
Crown asserted that it was “fatal to Bullen’s proposed alternative design ‘concepts’ that he provided nothing beyond speculation regarding whether the electrical optical switch he proposed was actually a safer design.” Additionally, “his opinion that Crown should modify the programming of the control module such that, in the event of an erroneous signal from the optical switches, the machine could be made to automatically brake, is entirely speculative because he has never installed this type of program or coding sequence in a forklift before, and never tested the ‘concept.’”
As to the “More Robust” Optical Switch
Crown stated that “Bullen admitted that he has never installed his proposed “more robust” optical switch on any forklift and tested the feasibility or application of his “concept”. In fact, he testified that he “would not recommend going through trying to redesign an entire feature around a different switch”. Most importantly, he testified that he does not even know what exactly caused the optical switch to allegedly malfunction in this accident. Bullen has not and cannot identify what the alleged “foreign body” was that allegedly caused the optical switch to malfunction. His use of the magic words “more likely than not” does not cure the purely speculative nature of that opinion. In proffering his “more robust” optical switch “concept”, Bullen does not apply reliable methodology as required by Daubert and, thus his conceptual alternative design opinion must be excluded.”
As to Reprogramming the Control Module
Crown asserted that “Bullen testified that he has not personally developed any program or revised coding to implement his proposed “concept”. He admitted that he has never implemented his proposed control module reprogramming on any stand-up rider forklift. His testimony that he has never reprogrammed any control module on a forklift, let alone a Crown RC5500, or tested any reprogrammed control module, is fatal to his proposed “concept”. Ultimately, Bullen’s optical switch and control module reprogramming “concepts” are completely speculative because he has provided no evidence that his alternative “concepts” would be safer.”
Crown further contended that Bullen did not reliably establish that a “more robust” optical switch or control module reprogramming would have prevented or significantly reduced the risk of Sneed’s injury under the specific circumstances of this accident.
Regarding Bullen’s Investigation of the Subject Accident
Crown stated that “Bullen admitted that he did not perform an accident reconstruction. He testified that he did not prepare any accident site survey. He further testifies that “the video didn’t have sufficient clarity for [him] to be able to look at specific movement. Ultimately, Bullen stated that he “didn’t feel that [the video] had enough clarity to specify any particular motion…”.
Bullen testified that he does not intend to offer any opinions regarding the specific accelerations that Plaintiff experienced during the accident sequence. He also has no opinion assessing how Plaintiff’s foot exited the operator compartment. Bullen also has no opinion regarding whether the brakes failed at the time of Plaintiff’s accident. Bullen testified that he has no opinion when Plaintiff began to “plug” or when Plaintiff first applied the service brake. He has no opinion regarding the speeds that the Crown RC5500 was traveling during the accident sequence.”
Support for Crown’s Contention that Bullen Could Not Opine on Preventing Sneed’s Injuries
In support of its contention that Bullen could not opine that his proposed design alternatives would have prevented Sneed’s injuries, Crown contended that “Bullen testified that he has not done a full analysis of whether or not the optical switch was receiving an electrical signal at the time of the accident. In trying to replicate what he believes caused the accident, Bullen performed ten tests at a post-accident inspection of the subject Crown RC5500 to determine if the signal in the optical switch was occluded or interfered with, and all ten tests showed that the optical switch signal worked properly as expected.
When asked if the type of accident Plaintiff experienced could still occur with his proposed optical switch “concept”, Bullen admitted that there is “absolutely” the potential for dust or debris buildup which could interfere with the electrical signal even if his proposed “more robust” optical switch “concept” was implemented into the subject RC5500.
He admits that even his “more robust” optical switch would not have prevented this accident as required under Texas law. Moreover, Bullen testified that he does not know what exactly caused the optical switch to allegedly malfunction. Because Bullen cannot even identify the foreign body, he has not attempted to replicate that alleged foreign body to test whether it would have made any difference in this accident sequence. Bullen’s “more robust” optical switch “concept” is completely speculative and he categorically cannot opine that this “concept” would have prevented Plaintiff’s injuries here.”
Regarding the Control Module Reprogramming Concept
Defendant also stated that regarding his control module reprogramming “concept”, “Bullen opines that the control module should be reprogrammed so that when an accelerator sensor error is displayed on the RC5500, the full brakes should be immediately engaged. But, as stated above, he has not personally developed any program or revised coding or implemented his proposed control module reprogramming on any stand-up rider forklift.”
Crown argued that “Because he has conducted no analysis of the accident sequence, Bullen cannot articulate how the accident occurred, let alone how reprogramming the control module to immediately apply full braking in response to an alleged accelerator sensor error would have prevented this accident.”
Analysis
Bullen’s opinions are unreliable for reasons similar to the reasons that the Court determined that Kerrigan’s are unreliable.
Bullen admitted that he did not install his “more robust” optical switch on an actual forklift to test its feasibility or application. And he did not implement his proposed control module reprogramming in a stand-up rider forklift.
And, so, without support (such as product development or testing) that the “more robust” optical switch or control module reprogramming would have been feasible with respect to the Crown RC5500 forklift, the Court held that Bullen’s proposals cannot be classified as safer alternative designs but are rather speculative concepts.
Moreover, Bullen also did not show that his proposed alternatives would have changed the outcome of this accident.
As Crown pointed out, he admitted that there is “absolutely” the potential for dust or debris buildup that could interfere with the electrical signal even if the “more robust” optical switch was implemented. And, because Bullen’s analysis of the sequence of events leading up to the accident is, at best, incomplete, and he cannot identify with certainty how the accident occurred, he is unable to show that reprogramming the control module to automatically brake in the event of an accelerator sensor error would have prevented it.
The Court held that Bullen’s proposed design alternatives are untested and based on unsupported speculation. And he has not met his obligation under Daubert to identify data supporting his opinions that a “more robust” optical switch or reprogramming the control module would have changed the outcome of this accident.
Held
The Court granted the Defendant Crown’s motions to exclude the proposed opinions of Plaintiff’s mechanical engineering expert witnesses, Jason Kerrigan and Robert Bullen.
Key Takeaway:
While both mechanical engineering expert witnesses, Jason Kerrigan and Robert Bullen were deemed qualified, their opinions were unreliable under the Daubert standard because their proposed design alternatives lacked the support of actual engineering work and testing.
It was not established exactly how Kerrigan’s suggested operator compartment door or backrest sensor theory, and Bullen’s proposed ‘more robust’ optical switch and control module reprogramming theories, would have changed the outcome of this accident.
Case Details:
Case caption:
Sneed V. Crown Equipment Corporation Et Al
Docket Number:
3:23cv743
Court:
United States District Court for the Northern District of Texas, Dallas Division
Meadowbrook Shopping Plaza, LLC purchased a building at 3895 Metro Drive (“the Building”) in 1995. Around 2018, Mr. Khaldoun Abaji approached Meadowbrook about utilizing the Building for his business, a store called Kids Avenue. Abaji and Meadowbrook came to an oral agreement where Abaji paid Meadowbrook $800 a month for the space.
The parties agreed that Abaji stored his merchandise inside the Building but did not re-open his storefront before the events giving rise to this lawsuit. Additionally, the parties seemed to agree that the Building did not have electricity or gas throughout his tenancy. Less clear is whether Abaji could, or planned to, operate his storefront in the Building.
The events giving rise to this lawsuit began on December 13, 2021, when the Building was vandalized. Nationwide was Meadowbrook’s insurer at this time, so Meadowbrook submitted a claim for the damage. Nationwide determined that the damage totaled $132,586; however, it denied Meadowbrook’s claim because, in its view, the vacancy exclusion applied.
The second event precipitating the lawsuit occurred on July 1, 2023, when the Building caught on fire. There was no indication that the sprinkler system was on when the Jackson Fire Department arrived.
Again, Meadowbrook filed a claim with Nationwide. And, again, Nationwide denied the claim. This time, Nationwide explained that denial was appropriate because the Building did not maintain an automatic sprinkler system in complete working order at the time of the fire. Meadowbrook then filed this suit against Nationwide for denying its claims. Its causes of action include breach of contract and bad faith denial of insurance benefits.
Richard Jones has over 23 years of experience in the field of investigations for both the public and the private sectors. He also has prior service and training with local fire districts and the Louisiana Office of State Fire Marshal, specializing in the field of fire and explosion investigations.
Jones has completed numerous courses related to fire and explosion investigations sponsored by the National Fire Academy, Maine State Police, the International Association of Arson Investigators, and other local organizations. He earned a degree in Fire Science from Columbia Southern University and is an experienced lecturer on fire and explosion investigations.
Adam Bomar is a Nationwide fire loss investigator. He is currently a Fire Lieutenant and Deputy Fire Marshall with the Mountain Brook Fire Department in Mountain Brook, Alabama. He is also currently the Operations Manager and Fire Investigator with Crain & Associates, Inc. in Birmingham, Alabama.
Richard Jones, who has been designated as an expert in forensic fire investigations, visited the scene after the fire. He noticed that the “post indicator valve” which supplied water to the sprinkler system was in the “shut” position. Adam Bomar, a Nationwide fire loss investigator, also visited the scene and noticed rust on the wrench that operated the post indicator valve. This led Bomar to opine that the valve had not been turned on for an extended period.
Meadowbrook did not challenge the qualifications of either Jones or Bomar. Instead, it argued that parts of their testimony should be excluded as either irrelevant or unreliable
Meadowbrook first argued that Jones’ testimony should be struck as a legal conclusion. It then asserted that the International Existing Building Code, which Jones relied on in forming his opinion, is irrelevant because the insurance policy at the heart of this case did not require Meadowbrook to follow this Code. Finally, Meadowbrook maintained that Bomar should be excluded from testifying to statements he heard from an unnamed Jackson Fire Department officer because such statements are unreliable hearsay.
A. The Court Denies the Motion to Exclude Jones’ Entire Testimony
The Court disagreed that Jones’ testimony “is nothing more than a legal conclusion” which is why his entire testimony will not be struck. Meadowbrook is free to object at trial should his opinions veer outside the scope of expert testimony.
B. Jones May Testify to the International Existing Building Code
Meadowbrook challenged the International Existing Building Code referenced in Jones’s report.
The City of Jackson adopted the 2018 edition of this Code in 2020. Meadowbrook maintained that any testimony related to this Code should be excluded because Nationwide’s policy did not require it to follow the Code. Nationwide responded that Meadowbrook’s disagreement relates to the weight of Jones’s testimony, but not its admissibility. The Court agreed.
According to Jones, the City of Jackson adopted the Code, which requires certain changes to the use of a structure be submitted for approval. Meadowbrook has not yet rebutted this premise, which will be for the jury to decide. Meadowbrook is free to cross-examine Jones on his report and his assertions relating to the Code. Ultimately, the jury is free to decide what weight—if any—to give Jones’s testimony. The Court denied Meadowbrook’s motion on this ground.
C. Bomar May Not Rely Upon Statements from an Unidentified Officer
Finally, Meadowbrook sought to exclude the purported assertion by an unnamed Jackson Fire Department officer that it is not the Department’s policy to shut off the post indicator valve at the scene of a fire. It asserted that any opinion and testimony made in reliance on this statement should be excluded because it is wholly unreliable.
Nationwide responded that Bomar, as an expert, may rely on hearsay in forming the basis of his opinion so long as other experts in his field would do so.
The parties agreed that Bomar did not record the name of the Jackson Fire Department officer who allegedly made this statement. Neither party has learned this officer’s name through the course of the litigation.
The statement made by the unidentified Jackson Fire Department officer, if offered to prove that the Department would not have turned the post indicator valve off, is textbook hearsay. Nationwide has failed to show that some exception applies to this rank hearsay. The Court held that incorporating the testimony into Bomar’s report does not transform the statement to one which the jury can receive.
Held
The Court granted in part and denied in part Meadowbrook’s motion in limine to exclude certain expert testimony by Richard W. Jones, Jr. and Adam Bomar.
Key Takeaway:
Question relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s consideration.
Daubert’s “gatekeeping function” requires the Court to examine the relevancy and reliability of all proffered expert testimony.
Case Details:
Case Caption:
Meadowbrook Shopping Plaza, Llc V. Nationwide Assurance Company
Docket Number:
3:23cv3093
Court:
United States District Court, Mississippi Southern
Plaintiff Max Zach Corporation entered into a contract with Defendant Marker 17 Marine (“Marker 17”) to modify Plaintiff’s vessel, a 2006 48′ Fountain Express Cruiser (the “Boat”)by retrofitting and repowering it with four Mercury Outboard 400 Racing Motors, at a cost of about $315,000. The agreement also provided for the delivery of the Boat by Marker 17 to Plaintiff in Greenwich, Connecticut.
The Boat was modified to specification by Marker 17, packaged, and loaded for transport from Wilmington, North Carolina to Greenwich, Connecticut. Marker 17 selected Defendant Premium Carriers Inc. (“Premium Carriers”) to assist with loading the Boat onto a trailer and to transport the Boat via land transport. The Boat was damaged when, in New Jersey, Premium Carriers accidentally flipped the trailer carrying the Boat en route to Plaintiff. Thereafter, Superior Towing and Transport, LLC towed the Boat from the accident site to its storage facility in New Jersey, where the Boat is still stored at a rate of $150 per day.
In the Second Amended Complaint, the Plaintiff raised four causes of action:
Plaintiff disclosed Scott Mitchell as his valuation expert witness whose testimony Defendants moved to preclude, arguing that Mitchell is unqualified to opine on the valuation of the Boat and that his testimony is unreliable and inadmissible.
Valuation Expert Witness
Scott Mitchell is the owner and sales manager of Boardwalk Marina in Stratford, Connecticut. He has decades of experience as a certified boat dealer, which includes dealing in Fountain powerboats from 2004-2010.
Mitchell, the owner and sales manager of Boardwalk Marina in Stratford, Connecticut, offered an opinion on the Boat’s valuation and the market value if sold as new today. The Defendants claimed that he did not employ the level of intellectual rigor necessary to opine as to the valuation of the boat.
In response, the Plaintiff cited Mitchell’s decades of experience as a certified boat dealer.
However, Mitchell’s expert report makes no reference to any experience as a marine surveyor or appraiser; instead, Mitchell states in the addendum to his expert report that his “qualifications derive from buying, repairing, building, and selling new and used boats since his entire adult life.” Further, at both his deposition and the hearing, Mitchell testified that he is not certified to do valuations, he does not belong to the American Society of Appraisers or any other association of appraisers, and he is not a licensed appraiser in any state.
While Mitchell, as a dealer and reseller of boats, may be qualified to be an expert in boat sales and resale values, his qualifications and experience as a marine appraiser are not demonstrated. The Court cannot conclude that his knowledge of boat valuations is sufficient such that his opinion would likely assist the trier in fact in arriving at the truth and, accordingly, finds that Mitchell is not qualified to be an expert as to the valuation of the Boat.
B. Reliability of Mitchell’s Testimony
Defendants argued that Mitchell’s testimony was unreliable for two reasons:
(1) it did not follow any recognized methodology, including Uniform Standards of Professional Appraisal Practice (“USPAP”), and
(2) it was speculative, contradictory, and assumptive.
Mitchell’s opinion is unreliable because the Court cannot discern the exact methodology Mitchell used to valuate the Boat. Mitchell concludes in his report that the value of the Boat is $640,000, which is the sum of the $315,000 cost to “re-power” the Boat and the Boat’s $325,000 value based on 2021 prices. Nowhere in the report does Mitchell explain how he arrived at the $325,000 value of the Boat or what were the “2021 prices” on which he relied; rather, he simply states, without more, that the included exhibits of other boats “can be used to triangulate on value but moreover, support his conclusion of using the cost basis rather than market comps.”
i. Mitchell’s testimony is also contradictory and misleading
The Court’s confusion regarding Mitchell’s methodology is exacerbated by Mitchell’s contradictory and misleading testimony. As noted, Mitchell’s report suggests that he relied on the “cost basis” method only, and not on comparable sales, to valuate the Boat. However, at his deposition in June 2024, Mitchell testified that he used a “blend of comparables and cost basis” based on “[p]revious boat sales, current boat sales, current boat valuations, and then on the cost basis, what the guy paid to have the boat redone[.]”
Mitchell again changed his explanation of the comparable sales and how he valued the Boat at the September 2014 hearing on the instant motion, further supporting the Court’s conclusion that his expert opinion is unreliable. Mitchell affirmed that to ascertain the $325,000 number in his valuation, he used a comparable “sale” of a 2006 48-foot Fountain listed for $388,944, and that the two other boats mentioned in the report were not comparables.
He thereafter conceded that none of these references or calculations were in his expert report or produced to Defendants. Moreover, because Mitchell testified at his deposition that the only records he used to calculate the $325,000 value were from the Boat Trader website, the Court held that Mitchell’s opinion is unreliable for being assumptive, contradictory, and, most importantly, rooted in inadequate methodology. Daubert and Federal Rule of Evidence 702 thus mandate the preclusion of Mitchell’s report and testimony.
C. Relevance of Mitchell’s Testimony
Since the Court held that Mitchell is not qualified to serve as an expert and his testimony is unreliable, the Court declined to address whether his testimony met the relevance standard under Federal Rule of Evidence 401.
Held
Therefore, the Court granted the Defendant’s motion to exclude Plaintiff’s valuation expert witness Scott Mitchell’s testimony
Key Takeaways:
The Court excluded Scott Mitchell’s expert testimony regarding the valuation of the Plaintiff’s boat due to two primary reasons:
Lack of Qualifications: While Mitchell, as a dealer and reseller of boats, may be qualified to be an expert in boat sales and resale values, his qualifications and experience as a marine appraiser are not demonstrated. The Court cannot conclude that his knowledge of boat valuations is sufficient such that his opinion would likely assist the trier in fact in arriving at the truth and, accordingly, finds that Mitchell is not qualified to be an expert as to the valuation of the Boat.
Unreliable Methodology: In addition to the fact that Mitchell did not see or examine the Boat, or any comparable boats, prior to rendering his opinion as to the Boat’s valuation and that his report contains no comments or criticisms of Defendants’ vastly different appraisal that was prepared a month earlier, there is no indication from Mitchell’s expert report or deposition testimony that his “testimony is the product of reliable principles and methods” or that he “reliably applied the principles and methods to the facts of the case.”
Case Details
Case caption:
Max Zach Corporation V. Marker 17 Marine Et Al
Docket Number:
3:23cv1088
Court:
United States District Court for the District of Connecticut
