Modifications to an expert report are allowed as long as there are no additions or substantive changes whatsoever; Court limits the testimony of both parties’ experts regarding the customs brokerage industry
Posted on October 10, 2023 by ewp_staff_writer
This case involves a dispute between JAS Supply, Inc. (“Plaintiff”) and Radiant Customs Services, Inc. and Radiant Global Logistics, Inc. (“Defendants”) regarding the importation of alcohol wipes from foreign manufacturers. In 2020, Plaintiff contracted with Defendants to assist with importing alcohol wipes into the United States for the first time. Defendant Radiant Global Logistics provided freight forwarding services, while its related company Radiant Customs Services provided customs broker services to ensure compliance with customs regulations.
Plaintiff successfully imported 15 of 19 containers, but the final 4 were detained and eventually refused by U.S. Customs and Border Protection (“CBP”) due to missing information required by the FDA about the originating manufacturer. Plaintiff alleged that Defendants’ misconduct led to the damages from the refused products. Both sides retained experts on importation and customs brokerage industries – Plaintiff retained Kelli R. Thompson and Defendants retained Cameron W. Roberts. The parties filed motions to exclude each other’s expert testimony.
Customs Expert Witnesses
Kelli Thompson is a highly experienced Customs and International Trade Advisor with a diverse background. She is a licensed customs broker and certified customs specialist with extensive private sector and public sector experience in various areas of customs and trade, including classification, valuation, rules of origin, free trade agreements, drawback, and intellectual property rights. She also served for nearly seven years with U.S. Customs and Border Protection, rising from Import Specialist to Supervisory Import Specialist.
She founded her own trade consulting firm, which has catered to a wide range of clients, from small start-ups to large Fortune 500 companies. Kelli Thompson has a Master’s degree in Business Management from North Park University (2001-2003) and a Bachelor’s degree in Health Promotion & Education from the University of Cincinnati (1994-1999).
Cameron Roberts, a partner at Roberts & Kehagiaras LLP in Long Beach, California, brings over three decades of expertise in international trade to his practice. His focus areas encompass customs law, export compliance, domestic and international transportation law, maritime law, and trade and insurance matters. Cameron is an active member of various customs, international trade, and legal associations. He has served as President of the Foreign Trade Association and the Harbor Transportation Club.
In addition to his legal career, Mr. Roberts serves as an adjunct professor at California State University, Long Beach. He is a frequent presenter and author on topics within his practice areas. His qualifications include being a licensed customs broker since 1989 and having prior experience as a transportation executive.
Cameron holds a B.A. degree in political science and international relations from California State University, Long Beach, and has earned his J.D. degree from the Seattle University School of Law. He is recognized as an expert witness in both State and Federal courts, and he is admitted to practice in California and Washington. Cameron is also qualified to appear before the Court of International Trade and the Federal Maritime Commission.
Discussions by the Court
The Court first set forth the legal standard for expert testimony under Federal Rule of Evidence 702, which requires expert opinion to be both relevant and reliable. The Court acted as a gatekeeper to evaluate admissibility of expert opinions. General qualifications of both experts were not disputed and the focus was on assessing the reliability and relevance of the expert testimony.
The Plaintiff sought to limit Cameron Roberts’ anticipated testimony related to the COVID pandemic, arguing that he lacked the qualifications and that his testimony would lack relevance and reliability. The Defendants intended for Roberts to provide insights into “the pandemic’s effects on the import industry” and how it specifically impacted individuals involved in the case and their ability to work. The Plaintiff’s main contention was that Roberts did not possess relevant education or specialized knowledge about the COVID pandemic, particularly in areas like medicine or public health. However, it’s important to note that Roberts did not claim to be a pandemic expert in those fields. Instead, his opinions were rooted in his expertise in the customs brokerage industry, shaped by his observations and personal experiences during the pandemic.
The Plaintiff did not appear to dispute Roberts’ general industry expertise, which formed the basis of his opinions. As such, Roberts was considered qualified to offer expert insights into the relevant industries during the pandemic based on his personal knowledge, experience, and observations during that time.
The Plaintiff attempted to challenge the reliability and relevance of Roberts’ opinions as they applied to the specific facts of the case. They pointed out that Roberts’ opinions were often based on facts that were either in dispute or about which he had limited personal knowledge. However, it was clarified that this argument primarily called in question the weight and credibility of Roberts’ opinion testimony, rather than its reliability or relevance.
The Defendants’ primary argument for excluding Thompson as an expert was based on the assertion that her disclosed affirmative report contained numerous improper legal conclusions. Thompson had made numerous legal conclusions within her testimony, specifically regarding whether the Defendants’ conduct constituted negligence, whether they breached a fiduciary duty, or otherwise violated federal regulations. She even made express credibility determinations. Similarly, the Plaintiff contended that Roberts’ anticipated testimony was improper because it extensively included inadmissible legal opinions on contested issues. For instance, he had defined gross negligence, mistake of fact, and inadvertence based on case law that was irrelevant to the facts of the specific case. Ultimately, he had arrived at a legal conclusion, stating that the Radiant Defendants were not grossly negligent but had committed a mistake of fact. He found that the Radiant Defendants’ belief that they had submitted the appropriate paperwork was reasonable. The Court concurred that such testimony would not be admissible.
Consequently, the Court partially granted the Plaintiff’s motion to limit Roberts’ testimony and partially granted the Defendants’ motion to exclude Thompson’s testimony. The Court’s order stipulated that neither expert would be allowed to offer testimony during the trial that purported to provide impermissible legal conclusions or interpretations.
Court assessed the dispute regarding whether Thompson should be disqualified as an expert due to the form of her report. Defendants argued that her conclusions were based on a skewed version of the factual record consisting of “regurgitated facts” provided by the Plaintiff’s counsel. They contended that within her report, Thompson made improper determinations on the credibility and culpability of lay witnesses, and these issues, coupled with the alleged formulation of her opinions as legal conclusions, led them to seek her disqualification as an expert witness.
Concerning the formulation of her opinions in her report, it was noted that Thompson’s written report, as disclosed to the Defendants, wouldn’t be admitted into evidence since it would be redundant with the testimony she would provide at trial. The Court emphasized that objections to the form of her testimony could be raised during the trial, but disqualifying her as an expert wasn’t warranted. Instead, traditional means such as cross-examination, presenting opposing evidence, and instructing the jury on the burden of proof were deemed appropriate for challenging her testimony.
Plaintiff recognized that Thompson’s opinions regarding the credibility of lay witnesses were improper and had shown a willingness to address and correct this issue. However, there was one statement challenged by the Defendants that Thompson had not rectified, and the Court determined it to be improper. Specifically, the Court ruled that Thompson could not provide opinions on the state of mind or understanding of other potential witnesses. The Court prohibited Thompson from opining on the credibility or culpability of lay witnesses.
Regarding the potentially inadmissible formulations of Thompson’s opinions, it was argued that these issues were curable. Plaintiff provided revised language to address the alleged improper conclusions, demonstrating how they could be presented as admissible opinions without altering their substance. Defendants contested this amended report, claiming it was an untimely supplement. However, the Court noted that it could excuse the untimeliness if it found the disclosure error to be harmless. Furthermore, it highlighted that even without the modified report, Thompson could still provide admissible opinions within the scope of her original disclosure.
The Court’s role was to determine whether Thompson was qualified to offer relevant and reliable testimony. Since there were no challenges to the experts’ general qualifications, and given that both parties had dueling expert testimonies on the same subject matter, the Court believed the intended dueling testimony would be relevant and reliable as long as it was presented appropriately and in an admissible form at trial.
The Court granted the motions only to the extent of excluding improper legal conclusions and credibility opinions. It denied excluding the experts themselves. The Court found Roberts qualified to opine on the pandemic’s industry impact from his experience. The Court held Thompson’s opinions could be presented in an admissible manner, finding her report did not warrant blanket exclusion. With improper opinions excluded, the Court found both experts could offer helpful industry testimony.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
– Experts can testify to industry practices and standards based on their qualifications and experience in the field. However, experts cannot offer legal conclusions or interpretations.
– Minor deficiencies in an expert report do not always warrant blanket exclusion of the expert. Their opinions can still be presented in admissible form through testimony.
– While experts cannot opine on lay witness credibility, they can otherwise testify to the reasonableness of parties’ actions based on industry standards and their expertise.
– Untimely supplementation of an expert report may be excused when it does not substantively alter the opinions and causes no prejudice.
In summary, the Court set a high bar for exclusion of otherwise qualified experts. Their opinions must be screened for legal conclusions, but as long as their testimony assists the factfinder and clearance requirements are met, exclusion is disfavored.
Posted In: Customs Expert Witness, Expert Challenges
Tagged In: Brokerage, customs, Legal Conclusions, Pandemic, Relevance, Reliability