Oracle Corporation et al v. SAP AG et al
Filing
1157
Declaration of Tharan Gregory Lanier in Support of 1156 Opposition/Response to Motion Declaration of Tharan Gregory Lanier in Support of Defendants' Oppositions to Oracle's Motions in Limine filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23)(Related document(s) 1156 ) (Froyd, Jane) (Filed on 5/10/2012)
EXHIBIT 16
Page 1
Not Reported in F.Supp.2d, 2006 WL 5219390 (D.N.D.)
(Cite as: 2006 WL 5219390 (D.N.D.))
Only the Westlaw citation is currently available.
United States District Court,
D. North Dakota,
Southeastern Division.
INDUSTRIAL AUTOMATION SUPPLY, LLC, A
North Dakota limited liability company, Plaintiff,
v.
UNITED RENTALS HIGHWAY TECHNOLOGIES, Inc., a Massachusetts corporation; United
Rentals (North America), Inc., a Delaware corporation; and United Rentals Highway Technologies,
L.P., a Texas limited partnership, Defendants.
Civil File No. 3:04-cv-99.
Feb. 8, 2006.
Named Expert: Dr. Leonard Sliwosky
Wayne W. Carlson, Vogel Law Firm, Fargo, ND,
for Plaintiff.
Jane L. Dynes, Ronald H. McLean, Jane L. Dynes,
Serkland, Lundberg, Erickson, Marcil & McLean,
Ltd. Fargo, ND, for Defendants.
ORDER DENYING DEFENDANT'S MOTION
IN LIMINE
RALPH R. ERICKSON, District Judge.
*1 Before this Court is Plaintiff's Motion in
limine to exclude the testimony of Dr. Leonard J.
Sliwoski. (doc. # 58). Defendant offers Dr. Sliwoski as an expert in the field of business evaluation. Dr. Sliwoski is a professor of accountancy at
Minnesota State University Moorhead and is also
the director of the University's Small Business Development Center. He possesses a Ph.D. in business
education, with an emphasis in marketing and management.
Plaintiff objects to Dr. Sliwoski's testimony on
two grounds. First, Plaintiff argues that while Dr.
Sliwoski's is an expert in the field of business evaluation, he possess no expertise in the field of road
construction and that he is unfamiliar with the machinery currently at issue ot their respective pricing. Second, Plaintiff argues that the testimony of
Dr. Sliwoski does not help to answer any factual issue before the jury and is therefore irrelevant.
The Court serves a “gatekeeping” function, deciding which evidence a jury will hear and ultimately consider. In regards to expert testimony, the
party seeking admission of such testimony must
prove its admissibility by a preponderance of the
evidence. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592 (1993). Expert testimony
must meet three requirements in order to be admitted under Federal Rule of Evidence 702. First, the
witness must be qualified to assist the finder of
fact. Lauzon v. Senco Prod., Inc., 270 F.3d 681, 686
(8th Cir.2001). Second, the proposed evidence must
be reliable or trustworthy in an evidentiary sense.
Id. Third, the evidence must be useful to the finder
of fact in deciding the ultimate issue of fact. Id.
Turning to the first point, Plaintiff argues that
Dr. Sliwoski does not utilize any expert knowledge
and instead simply “regurgitates” content from the
Standard Industrial Code (SIC) and Risk Management Associates Annual Statement Studies
(2004-05). As such, Plaintiff argues that Dr. Sliwoski's testimony does not meet the first the above
first prong. However, this argument does not recognize that courts routinely allow experts to testify as
to subject areas related to, although not conterminous with, their expertise. Defendant points out that
courts have allowed economists with no real estate
development experience to testify about expected
returns from real estate investments, Maiz v. Birani,
253 Fed.3d 651 (11th Cir.2001), have allowed a
veterinarian without toxicology specialization to
testify about the toxic effects of a substance on
cows, Quinton v. Farm Land Industries, 928
Fed.2d. 335, 336 (10th Cir.1991), as well as allowing the testimony of a chemistry expert that had no
expertise in polyurethane chemistry, Ashland Oil,
Inc. v. Delta Oil Products Corp., 685 Fed.2d. 175,
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
Not Reported in F.Supp.2d, 2006 WL 5219390 (D.N.D.)
(Cite as: 2006 WL 5219390 (D.N.D.))
178 (7th Cir.1982). It would seem that the general
practice of business evaluation would have significant spill-over into many other, if not all, commercial enterprises. Further, this Court does not see Dr.
Sliwoski's testimony as mere regurgitation of the
SIC and Risk Management Studies, but rather his
study helps to determine whether the price and
price mark-up exceeded that of other products in
the market. Moreover, Dr. Sliwoski's testimony is
useful in determining where on the pricing chain
the price ceased to comport with industry standards.
In short, his testimony will assist the fact finder in
determining whether the product was above-average in price and also who is chiefly responsible for
the determination of that price.
and the supporting affidavit and materials of Dr.
Sliwoski, this Court finds that Dr. Sliwoski is qualified to give testimony and that this testimony is relevant to the current litigation. The Court DENIES
Plaintiff's Motion in limine.
IT IS SO ORDERED.
D.N.D.,2006.
Industrial Automation Supply, LLC v. United Rentals Highway Technologies, Inc.
Not Reported in F.Supp.2d, 2006 WL 5219390
(D.N.D.)
END OF DOCUMENT
*2 Secondly, Plaintiff contends Dr. Sliwoski's
testimony is irrelevant. Specifically, Plaintiff argues that Dr. Sliwoski's determination as to whether
it was economically feasible to sell the RAM equipment at the 2002-03 price is not a question for the
jury. A piece of evidence is relevant if it has “any
tendency to make the existence of any fact that is of
consequence to the determination of the action
more probable or less probable than it would be
without the evidence.” Fed. R. Ev. 401. This is a
liberal standard. Daubert, 509 U.S. at 588. The
question of whether the RAM pricing was feasible
is not a factual question currently before the jury,
however the Court recognizes two other ways in
which Dr. Sliwoski's testimony is relevant. First,
Dr. Sliwoski's testimony would assist the fact finder
in determining whether the open price term was set
in good faith. If the price or percentage of mark-up
far exceeds others products in a similar field, this
would assist in determining whether Plaintiff set
the price of RAM machinery in good faith.
Secondly, Dr. Sliwoski's testimony helps to determine whether Defendant used “best efforts” to sell
the RAM products. If the market cannot support the
prices as tendered, this is instructive as to whether
United Rentals' “best efforts” could have produced
any better result than the one achieved here.
Upon review of the pleadings of both parties,
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
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