Manion et al v. Ameri-Can Freight Systems Incorporated et al

Filing 119

ORDER granting in part and denying in part 70 Motion for Discovery; granting in part and denying in part 71 Motion for Discovery; denying 72 Motion in Limine. Signed by Judge Dominic W Lanza on 8/16/2019. (TCA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Zandra Manion, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-17-03262-PHX-DWL

Ameri-Can Freight Systems Incorporated, et
al.,

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Defendants.

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This case arises from a March 12, 2016 traffic accident that resulted in the death of

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Johnathan Blyler (“Decedent”). The vehicle that struck Decedent’s vehicle was a tractor-

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trailer driven by Steven Robertson (“Robertson”), an employee of Ameri-Can Freight

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Systems, Inc. (together, “Defendants”). The plaintiffs are (1) Decedent’s mother, Zandra

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Manion, who asserts a wrongful death claim under A.R.S. § 12-611 as a statutory

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beneficiary of Decedent, and (2) Decedent’s wife, Lisa Blyler, who asserts both a wrongful

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death claim under A.R.S. § 12-611 in her capacity as a statutory beneficiary and a survival

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claim under A.R.S. § 13-1440 on behalf of the Decedent’s estate (together, “Plaintiffs”).

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The Final Pretrial Conference is scheduled for August 26, 2019. (Doc. 91.) In

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anticipation of trial, the parties have filed three motions to exclude expert opinions. (Docs.

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70, 71, 72.) Having reviewed those motions and the responses and replies thereto, the

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Court hereby rules as follows. The parties will be free at the Pretrial Conference to present

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additional argument concerning any of these rulings and attempt to convince the Court to

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change its mind.

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LEGAL STANDARD

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Federal Rule of Evidence 702 governs the admissibility of expert testimony. “The

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party offering expert testimony has the burden of establishing its admissibility.” Bldg.

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Indus. Ass’n of Washington v. Washington State Bldg. Code Council, 683 F.3d 1144, 1154

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(9th Cir. 2012). As a threshold matter, an expert witness must be qualified “by knowledge,

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skill, experience, training, or education,” Fed. R. Evid. 702, but “Rule 702 ‘contemplates

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a broad conception of expert qualifications,’” Hangarter v. Provident Life & Acc. Ins. Co.,

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373 F.3d 998, 1015 (9th Cir. 2004) (citation and emphasis omitted).

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Under Rule 702, a qualified expert may testify if: “(a) the expert’s scientific,

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technical, or other specialized knowledge will help the trier of fact to understand the

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evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or

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data; (c) the testimony is the product of reliable principles and methods; and (d) the expert

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has reliably applied the principles and methods to the facts of the case.” The Federal Rules

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of Evidence obligate trial courts to “ensure that any and all scientific testimony or evidence

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admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

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579, 589 (1993). Rule 702(a) “goes primarily to relevance” and “requires a valid scientific

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connection to the pertinent inquiry as a precondition to admissibility.” Id. at 591-92. With

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respect to reliability, “the test under Daubert is not the correctness of the expert’s

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conclusions but the soundness of his methodology.” Primiano v. Cook, 598 F.3d 558, 564

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(9th Cir. 2010), as amended (Apr. 27, 2010) (citation omitted). To “assess the reasoning

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or methodology,” courts should consider “such criteria as testability, publication in peer

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reviewed literature, and general acceptance, but the inquiry is a flexible one.” Id. Courts

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should not exclude an expert’s opinion merely because it is “shaky,” because such evidence

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may “be attacked by cross examination, contrary evidence, and attention to the burden of

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proof.” Id. See also Fed. R. Evid. 702, advisory committee note to 2000 amendments

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(“[P]roponents do not have to demonstrate to the judge by a preponderance of the evidence

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that the assessments of their experts are correct, they only have to demonstrate by a

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preponderance of evidence that their opinions are reliable. . . . The evidentiary requirement

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of reliability is lower than the merits standard of correctness.”) (citation and internal

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quotation marks omitted).

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ANALYSIS
I.

Defendants’ Motion Regarding Michael Shepston (Doc. 70)

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Defendants seek to preclude Plaintiffs’ proposed accident reconstruction expert,

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Michael Shepston (“Shepston”), “specifically as it relates to avoidability analysis,

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perception time, visibility, avoidability conclusions, vehicle electrical systems and

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additional factors.” (Doc. 70 at 1.) They argue (1) Shepston “provides opinions outside

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the scope of his specialized knowledge” and (2) Shepston’s “opinions are not based on any

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specialized, scientific or technical knowledge and are not based upon reliable evidence.”

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(Id. at 2, 4.) Although the motion is broadly titled, Defendants clarify in their reply that

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they “are not disputing the methodology of Shepston as to the [accident] reconstruction or

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his opinions on the reconstruction itself.” (Doc. 80 at 2.)

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In response, Plaintiffs contend: (1) “Defendants’ motion attempts to characterize the

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entirety of Shepston’s opinions as scientific and ignores the information he has provided

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related to the details of the testing he performed and the information he compiled in arriving

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at his opinions”; (2) Shepston’s “opinions are based on his knowledge and experience as a

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professional accident reconstructionist and his extensive experience in performing

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investigative analysis of crashes”; and (3) “Defendants do not dispute that Shepston is a

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qualified accident reconstructionist, or assert that his opinions have not been adequately

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disclosed.” (Doc. 76 at 4-5.)

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A.

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As with many of the other pretrial motions in this case, the parties seem to be talking

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past each other to some extent. In their motion, Defendants did not indicate they were

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challenging Shepston’s methodology as to the accident reconstruction, and they clarified

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in their reply that they were not making such a challenge. Thus, Shepston will be permitted

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to offer opinions regarding accident reconstruction at trial.

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Accident Reconstruction

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B.

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Defendants seek to exclude “Shepston’s opinions and testimony regarding

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avoidability, perception time, [Robertson’s] reaction time, and visibility.” (Doc. 70 at 5-

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6.) They argue (1) “Shepston does not have any scientific basis for his opinions that the

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area of the collision was well-lit, and visibility was clear or that [Decedent’s] vehicle was

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visible from one-quarter mile out” and (2) “these opinions are outside of his areas of

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expertise as he does not have expert qualifications in the areas of visibility to offer an

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opinion.” (Id. at 6.)

Avoidability, Perception Time, Defendant’s Reaction Time, Visibility

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The Court generally agrees with Defendants. First, because Shepston didn’t identify

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any methodology in support of his conclusion that “[t]he area of the collision was well-lit,

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and visibility was clear” (Doc. 70-2 at 9), Shepston will be precluded from testifying as to

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those opinions at trial. Fed. R. Evid. 702(c) (opinion must be “product of reliable principles

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and methods”). Notably, Shepston did not explain what it would mean scientifically for

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an area to be “well-lit” and conceded during his deposition that he did not conduct “any

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tests to determine luminescence of the area of the accident” or conduct any tests to

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determine “contrast.” (Doc. 70-4 at 8.) In fact, Shepston’s opinions on this topic appear

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to be based solely on a statement Robertson made to Arizona Department of Public Safety

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officers. (Doc. 70-2 at 7.) His testimony will not help the jury understand the evidence.

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Cameron v. Lowes Home Centers Inc., 2019 WL 2617032, *2 (D. Ariz. 2019) (excluding

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expert testimony where expert’s “opinion [was] not necessary to help the trier of fact

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understand [lay witness’s] deposition testimony regarding whether Defendant followed its

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policies and procedures” because expert’s “opinion d[id] not expound upon [lay witness’s]

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testimony with principles and references from his experience that support his own

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conclusion” and “the jury [could] weigh [lay witness’s] testimony for itself without

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[expert’s] assistance”).

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Second, Shepston’s opinion that Decedent’s Jeep was visible from one-quarter mile

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out does not satisfy Rule 702. To form this opinion, Shepston relied only on deposition

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testimony in which Robertson “indicated . . . that, with his headlights on, he can see within

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a quarter of a mile fairly easily.” (Doc. 70-2 at 8.) Again, this opinion fails under both

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Rule 702(a) and 702(c)—Shepston’s scientific knowledge is not helpful for the jury and

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Shepston’s opinion is not based on any methodology. Accordingly, Shepston will be

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precluded from testifying to this opinion at trial.

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Third, to the extent Shepston intends to testify that Robertson caused the collision

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because he was inattentive and “mirror-checking,” Shepston did not rely on any “facts or

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data” or apply any “principles and methods” to formulate this opinion, and he will therefore

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be precluded from testifying to it. Fed. R. Evid. 702(b)-(c).

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Finally, the Court disagrees with Defendants’ contention that Shepston does not

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have a scientific basis for his conclusions regarding perception time. (Doc. 70 at 6.)

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Shepston testified in his deposition that he used a software program called Interactive

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Driver Response Research (“IDRR”) for his perception time analysis, which allows the

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user to input different variables to determine perception times. (Doc. 76-1 at 38-41.)

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Defendants have not challenged Shepston’s methodology but rather have conclusorily

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stated that Shepston “does not have any scientific basis for [this] opinion.” (Doc. 70 at 6.)

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Because Defendants do not attack the basis on which Shepston relied (but mistakenly claim

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he had no basis), the Court will allow Shepston to testify to this opinion at trial.

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C.

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Defendants argue that “Shepston does not have the scientific data or specialized

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knowledge to present [the] opinions” that (1) Decedent’s “vehicle, more likely than not,

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had functioning headlights and taillights that were operational and turned ‘on’ at the time

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of impact” and (2) “[e]ven if [Decedent’s] vehicle did not have functioning taillights, the

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reflectors covering the taillights would have been illuminated by the Robertson tractor-

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trailer’s headlights.” (Doc. 70 at 7, quoting Doc. 70-2 at 9.) They argue Shepston was not

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qualified to render these opinions because he “has no prior experience in ‘electrical work

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on vehicles,’ he is not an electrical engineer, he does not have any training in vehicle

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electronic systems beyond gathering information from the air bag control module, he has

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never worked in an auto repair shop and has no experience in manufacturing these

Vehicle Lights

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vehicles.” (Doc. 70 at 7, citing Doc. 70-4 at 2-3.)

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In response, Plaintiffs argue that (1) “Defendants cite no requirement that Shepston

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has to be an electrical engineer or automobile mechanic to conclude, assuming the

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headlights on the Jeep were illuminated at the time of impact, whether it is more likely than

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not that the taillights were also illuminated”; (2) “Defendants fail to mention that since the

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rear of [Decedent’s] vehicle sustained such significant crush and fire damage, making it

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impossible to test the rear taillights or electrical system, Shepston had no choice but to use

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an exemplar vehicle to perform the relevant testing”; and (3) “Defendants gloss over

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Shepston’s methodology regarding the vehicle lighting which included inspecting and

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photographing [Decedent’s] Jeep.” (Doc. 76 at 6-7.)

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The Court agrees with Defendants. First, to determine that Decedent’s Jeep had

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functioning headlights and taillights that were most likely turned on at the time of the

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collision, Shepston relied only on the facts that (1) “[v]ideo of [Decedent’s] vehicle post-

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crash demonstrated that the headlights were operational,” (2) “[r]esearch of [Decedent’s]

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vehicle revealed it was not equipped with daytime running lights, which means in order for

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the headlights to be illuminated, the headlight switch has to be manually turned to the ‘on’

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position,” and (3) “[i]nspection of the exemplar video revealed that when the headlights

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are manually turned ‘on,’ the taillights are illuminated as well.” (Doc. 70-2 at 8.) There is

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no methodology in this analysis. Also, Shepston did not examine the actual Jeep involved

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in the collision and he did not reach his conclusion based on reconstruction of the collision.

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Moreover, Shepston, as an accident reconstruction expert who admitted he had no

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experience with vehicle electronic systems, is not qualified to testify to vehicle electrical

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systems. “[T]he fact that an expert is qualified in a particular field or discipline does not

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automatically qualify that expert in related disciplines.” Guido v. L’Oreal, USA, Inc., 2014

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WL 6603730, *7 (C.D. Cal. 2014).

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Second, the opinion that, “[e]ven if [Decedent’s] vehicle did not have functioning

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taillights, the reflectors covering the taillights would have been illuminated by the

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Robertson tractor-trailer’s headlights” (Doc. 70-2 at 9) could presumably have been within

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the purview of an accident reconstructionist. But Shepston provides no discussion in his

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report of how he reached this conclusion. And he testified in his deposition that he did not

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“use[] any tests to determine . . . the reflectiveness of the vehicle’s light reflectors” or

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“recreate the scene at all to determine the visibility of the vehicle to Mr. Robertson as he

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was driving up to it, given the light sources.” (Doc. 70-4 at 8-9.) Because this opinion is

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not based on any facts or data, the Court will preclude Shepston from testifying as to it.

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On final point is worth emphasizing. An expert may, in appropriate circumstances,

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rely on assumptions when formulating opinions. Fed. R. Evid. 702, advisory committee

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notes to 2000 amendments (“The language ‘facts or data’ is broad enough to allow an

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expert to rely on hypothetical facts that are supported by the evidence.”). However, an

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expert cannot pass off those assumptions as opinions. Thus, although Shepston may not

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render the opinion that the area where the collision occurred was “well-lit” and had clear

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visibility or that the Jeep had its lights on at the time of the collision, he may be permitted

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to rely on those assumptions in forming his reconstruction and avoidability opinions. Cf.

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Biltmore Assocs., L.L.C. v. Thimmesch, 2007 WL 5662124, *6 (D. Ariz. 2007) (“Although

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Jenkins is not qualified to offer an opinion as to whether the shareholder claims ever

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existed, she is permitted to assume that they existed and base her damages calculation on

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that assumption.”). Put another way, the Court does not disagree with Plaintiffs that to

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“reconstruct[] the details of a collision,” Shepston “was required to inspect the scene and

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the vehicles involved, take measurements, and make certain assumptions.” (Doc. 76 at 4.).

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But those assumptions should be clearly identified so Defendants can seek to challenge

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them via cross-examination. See generally United States v. Crabbe, 556 F. Supp. 2d 1217,

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1224 (D. Colo. 2008) (“An expert witness may often ‘assume’ a fact for purposes of

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applying the methodology. The assumption may be based upon information supplied to

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the witness or on someone else’s work or opinion. . . . An assumption must be clearly

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stated as such, because when an assumption is used, the opinion becomes conditional. If

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the assumption is in error, the opinion may be entirely invalidated.”). See also Marsteller

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v. MD Helicopter Inc., 2018 WL 3023284, *2 (D. Ariz. 2018) (“The challenges to Equals’

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opinions and the weaknesses in his assumptions are issues to be explored on cross-

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examination.”); Flying Fish Bikes, Inc. v. Giant Bicycle, Inc., 2014 WL 12621218, *1

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(M.D. Fla. 2014) (drawing a distinction between “an expert’s unquestioned ability to render

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an opinion based on assumed facts and an opposing party’s ability to factually disprove the

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expert’s factual assumptions” and emphasizing that “[t]he prospect that the opposition

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might disprove assumed facts . . . presents no barrier to the admissibility of an expert’s

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opinion”).

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D.

Reason For Decedent’s Slow Speed And Direction Of Travel

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Finally, Defendants argue that Shepston should be precluded from testifying that

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Decedent was moving to the side of the road due to mechanical malfunction or emergency

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because this opinion “is based on speculation” and is “not based on any specialized

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knowledge or expertise or supported by facts.” (Doc. 70 at 8-9.)

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Plaintiffs respond that “Defendants[] focus on Shepston’s testimony as to the

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possibilities for the Jeep’s direction of travel and not on his methodology used for

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concluding the Jeep was traveling in a south easterly direction.” (Doc. 76 at 8.)

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This appears to be another instance of the parties talking past each other. Shepston

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concludes in his report: “The speed of [Decedent’s] vehicle and the direction it was

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traveling is consistent with [Decedent] attempting to drive to the right side of the roadway

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before the collision occurred—perhaps with his emergency ‘flashers’ on, and also, perhaps,

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due to a mechanical or tire failure. Due to damage to [Decedent’s] vehicle, however, it is

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not possible to determine the nature of the problem.” (Doc. 70-2 at 10.) In his deposition,

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Shepston testified that “moving to the right is consistent with wanting to get over” and “if

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you’re at a low speed, that’s consistent with wanting to get over.” (Doc. 70-4 at 17.) He

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also conceded that “there are many other reasons why he could have been at that low speed

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and that direction[,] [h]e could have been drunk[,] [h]e could have been sleeping. . . . We

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don’t know.” (Id.)

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As is evident from the cited portions of Shepston’s report and deposition, Shepston

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has not offered an opinion that Decedent’s speed and direction of travel were due to

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mechanical malfunction or emergency. In fact, he explicitly concluded in his report that

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“[d]ue to damage to [Decedent’s] vehicle, . . . it is not possible to determine” why Decedent

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was moving in that direction. (Doc. 70-2 at 10.) It is, thus, unclear why Defendants are

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trying to preclude Shepston from offering such an opinion. In any event, to the extent

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Shepston intends to testify to this opinion at trial, he will be precluded from doing so.

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Shepston may, however, testify regarding Decedent’s speed and direction of travel,

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because such opinions would fall squarely within the category of accident reconstruction.

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II.

Defendants’ Motion Regarding David Stopper (Doc. 71)

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As with Defendants’ other motion, although this motion is broadly titled,

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Defendants clarify they are only seeking “to bar the testimony of plaintiffs’ proposed

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standards of care expert, David A. Stopper [‘Stopper’], specifically as it relates to accident

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reconstruction, perception time, reaction time, visibility, and vehicle electrical systems.”

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(Doc. 71 at 1.) They argue that Stopper’s opinions regarding these topics are “anecdotal

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and speculative” and that Stopper should be precluded from testifying to these opinions

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because of “the lack of sufficient data for the proposed expert testimony, and the experts’

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[sic] own admission that he is either not offering an opinion on these issues or did not do

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the evaluation necessary to provide such opinions.” (Id. at 4-5.)

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In response, Plaintiffs confirm that Stopper will not be testifying (1) “to those things

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he said he would not be testifying to,” (2) “as to any technical specifications for

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[Decedent’s] vehicle,” (3) “about the credibility of any witness,” or (4) “as to any scientific

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testing or calculations he performed.” (Doc. 77 at 1, 4.) Plaintiffs state Stopper will only

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“testify as to the standard of care of a commercial vehicle operator, statutes, regulations,

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and manuals affecting the profession, and his opinions about the cause of this crash.” (Id.

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at 4.)

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In their reply, Defendants identify three specific opinions in Stopper’s report that

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should be precluded. Those opinions are that: (1) “Defendants’ vehicle should have been

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capable of deceleration rates of at least 13 miles per hour”; (2) the “area of this collision

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was a very well-lighted section of a major highway”; (3) and “had Mr. Robertson been

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alert and keeping a proper forward lookout, while operating the properly equipped air

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brake, anti-lock brake (ABS) truck tractor semi-trailer, he had more than adequate time and

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distance to adjust his speed and direction to avoid the collision with [Decedent’s] Jeep.”

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(Doc. 79 at 2, citing Doc. 79-4 at 3-4, 12-13.)

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Plaintiffs indicate that Stopper will be testifying to various aspects of the standard

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of care as well as “his opinions about the cause of this crash.” (Doc. 77 at 4.) Those are

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two distinct categories of opinions.

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report contains opinions that fall outside those categories. Because Defendants are not

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challenging Stopper’s opinions as to the standards of care, Stopper will not be precluded

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from testifying as to those opinions. But Stopper provided no methodology for how he

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determined the cause of the collision. Indeed, Stopper conceded in his deposition that he

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was not retained to conduct any fieldwork (Doc. 71-2 at 3-4) and his opinion contains no

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discussion or analysis of any fieldwork that either he or any other expert conducted.

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Accordingly, Stopper will be precluded from testifying to the cause of the collision.

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Stopper is also precluded from offering opinions concerning the technical specifications of

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Decedent’s vehicle, the credibility of any witness, and scientific testing or calculations he

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performed—the categories about which Plaintiffs confirmed he would not be testifying.

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Finally, as with Shepston, Stopper cannot provide an opinion regarding visibility because

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he (like Shepston) provided no methodology in his report in support of his opinion that the

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collision occurred in “a very well-lighted section” of the highway.

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III.

And, as Defendants noted in their reply, Stopper’s

Plaintiff’s Motion Regarding David Krauss, Ph.D. (Doc. 72)

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Defendants disclosed Dr. Krauss to testify “in [the] areas of conspicuity, reaction

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time, and how they related to the accident.” (Doc. 72-1 at 16-17.) Dr. Krauss stated in his

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report that he “ha[s] specialized knowledge in the areas of human factors, human

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perception and performance, safety, and risk analysis” and “ha[s] extensive publications in

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this field, including a book.” (Doc. 75-1 at 2.) Dr. Krauss’s opinions rely on a “looming

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threshold” theory, which relates to the point at which a driver can perceive a hazard in the

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distance. (Id. at 6-9.) Dr. Krauss states in his report that he “performed a looming

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calculation to determine the distance at which a driver in Mr. Robertson’s position could

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first determine that the Jeep was stopped or traveling significantly slower than traffic.” (Id.

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at 7.) He concluded that “[e]ven if the taillights were illuminated on the Jeep, Mr.

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Robertson would not have been afforded enough time and distance to avoid a collision with

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[Decedent’s] vehicle,” and “[t]o the extent the taillights on the Jeep were not illuminated,

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Mr. Robertson’s ability to avoid this accident would have been diminished even further.”

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(Id. at 10.) In formulating his opinions, Dr. Krauss relied on various publications and

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reviewed photographs, videos, witness statements, and other documents in the case. (Id.

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at 11-12.)

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Plaintiffs seek to preclude Dr. Krauss from testifying at trial, arguing that (1) his

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opinions are “not based on sufficient facts or data” because “[h]e has not been to the scene”

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of the collision; (2) “he did not develop a hypothesis prior to forming his conclusions, but

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instead, based his conclusions upon a preconceived perception of the case”; and (3) “the

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application of his ‘looming threshold’ theory is completely subjective and untestable.”

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(Doc. 72 at 6-11.) With respect to the third reason, they specifically take issue with Dr.

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Krauss’s deposition testimony, in which they contend he conceded “that there was no

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quantifiable methodology to determine when his looming theory is used compared to when

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it is not.” (Id. at 5.)

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Defendants respond that (1) Dr. Krauss’s opinions are based on sufficient facts

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and/or data, even though he did not go to the scene, because the opinions are “based on . . .

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accurate and reliable documentary evidence and eye-witness statements”; (2) “[t]he

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quantification of the looming threshold is mathematically repeatable and testable, as

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evidenced by Dr. Krauss’[s] extensive list of references attached to his report”; (3)

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“[l]ooming threshold is a peer reviewed and published phenomenon”; (4) “[l]ooming

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threshold enjoys general acceptance in the scientific community”; and (5) “a hypothesis is

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not a requirement for an expert to be allowed to testify” but Dr. Krauss nonetheless

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generated a hypothesis and applied the scientific method. (Doc. 75 at 4-9.)

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The Court will deny the motion. First, Dr. Krauss’s failure to personally visit the

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scene of the collision is not a valid reason to preclude his testimony—his review of

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photographs, videos, and witness statements was sufficient. Fed. R. Evid. 703 (“An expert

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may base an opinion on facts or data in the case that the expert has been made aware of or

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personally observed.”) (emphasis added); Sementilli v. Trinidad Corp., 155 F.3d 1130,

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1134 (9th Cir. 1998), as amended (Nov. 12, 1998) (“The facts that Dr. Ketchum did not

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personally examine Sementilli, was not personally present at the accident scene, and was

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not ‘privy’ to Sementilli’s thought processes just prior to the accident do not render his

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otherwise admissible expert testimony inadmissible. . . . Dr. Ketchum’s opinions and

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inferences were based on his review of Sementilli’s medical records, as well as his

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knowledge, experience, training and education. Under Rule 703, Dr. Ketchum was allowed

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to rely on such information in forming his opinion.”).

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Second, Plaintiffs are incorrect in contending Dr. Krauss did not develop a

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hypothesis before formulating his opinions. In his deposition, although Dr. Krauss testified

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that he “did not sit down and write down a hypothesis specific to this case because [he has]

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seen the exact same fact pattern so many times,” he stated he formulated a “broad

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hypothesis . . . that Mr. [Robertson] could not respond to [Decedent’s] Jeep in enough time

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to avoid collision.” (Doc. 72-3 at 19-20.)

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Third, Plaintiffs are again incorrect in contending the looming threshold theory is

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“completely subjective and untestable.”

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published sources supporting his opinions (Doc. 75-1 at 11) and Plaintiffs do not dispute

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the validity of these sources. Dr. Krauss also explained why he used the particular looming

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threshold value of 0.006 in his calculations. (Doc. 72-3 at 116-120.) And Dr. Krauss did

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not (as Plaintiffs contend) concede that it is impossible to determine when the looming

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threshold theory should be deemed inapplicable—Dr. Krauss testified that looming

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threshold analysis is generally the proper perception-time analysis at night. (Id. at 31, 106-

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07.)

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…

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(Doc. 72 at 8.) Dr. Krauss cited multiple

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Accordingly, IT IS ORDERED that:
1. Defendants’ Motion to Bar Report and Testimony of Plaintiffs’ Proposed Expert
Michael J. Shepston (Doc. 70) is granted in part and denied in part;
2. Defendants’ Motion to Bar Report and Testimony of Plaintiffs’ Proposed Expert
David A. Stopper (Doc. 71) is granted in part and denied in part; and
3. Plaintiff’s Daubert Motion re: Testimony of David Krauss, Ph.D. (Doc. 72) is

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denied.

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Dated this 16th day of August, 2019.

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